Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN222540 Runston G. Maino, Judge.
IRION, J.
A jury convicted Penifoti Taeotui of first degree murder (Pen. Code, §§ 187, subd. (a), 189) and found true the special circumstance allegation that Taeotui intentionally and knowingly killed a peace officer while the officer was in the line of duty (§ 190.2, subd. (a)(7)). The jury also convicted Taeotui of assault with a firearm on another peace officer (§ 245, subd. (d)(1)), and assault with a semiautomatic firearm (§ 245, subd. (b)) on a third individual. The jury found each crime was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1). Additionally, the jury sustained the following weapon allegations: (1) with respect to the first degree murder count, Taeotui personally used a firearm (§ 12022.5, subd. (a)), and personally and intentionally discharged a firearm (§ 12022.53, subd. (c)); (2) with respect to the assault on a peace officer, Taeotui personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and a principal in a gang offense personally and intentionally discharged a firearm (§ 12022.53, subds. (c) & (e)(1)); and (3) with respect to the assault with a semiautomatic firearm, Taeotui personally used a firearm (§ 12022.5, subd. (a)).
All further statutory references are to the Penal Code unless otherwise specified.
The trial court sentenced Taeotui to life in prison without the possibility of parole plus a determinate sentence of 62 years eight months.
Taeotui appeals, contending the trial court erred by admitting the (1) coerced testimony of incriminating admissions he purportedly made to fellow gang members and his relatives who testified, and (2) immunity agreements between these witnesses and the prosecution. Taeotui also contends the trial court's rulings allowing certain exhibits to be displayed throughout the trial as well as other evidentiary rulings created an inherently prejudicial courtroom atmosphere. Finally, Taeotui contends the court erred by not instructing the jury on assault with a firearm as a lesser included offense to assault with a semiautomatic firearm, and by imposing a stayed 10-year prison enhancement to the life in prison without the possibility of parole sentence for first degree murder.
FACTS
Background
Taeotui is a documented member of the Westside Deep Valley Bloods (WDVB) criminal street gang. The WDVB gang was active in the "Back Gate" area of Oceanside, which bordered the back gate of Camp Pendleton. A number of WDVB gang members lived on the 500 and 600 blocks of Arthur Avenue and nearby streets.
In November and December 2006, officers with the Oceanside Police Department's Neighborhood Policing Team (NPT) met frequently with residents of the Back Gate area, including members of Oceanside's Samoan community, to decrease gang activity in the area. The NPT officers also worked with the city's code enforcement department to identify code violations in particular properties that could lead to civil abatement proceedings.
Police Officer Dan Bessant, a member of the NPT, was assigned to the "Valley Sector Four" area, which included the neighborhood near the intersection of Arthur Avenue and Gold Street. Bessant, accompanied by code inspection officers, visited the Toluao family at 573 Arthur Avenue, and the Seau family at 661 Arthur Avenue. Members of the Toluao and Seau families were among the leaders of the WDVB gang.
Taeotui lived with his grandmother at 2779 Thunder Drive. City code inspectors and police officers inspected this residence four times in 2006 after an anonymous complaint of drug and gang activity. Bessant, along with another NPT member, was present during the last three inspections.
In mid-December, Captain Thomas Jones, the police department's liaison to the Samoan community, met with the Seau family to discuss the NPT and potential civil abatement actions. Virginia Seau complained that Bessant was targeting the Seau family residence. Jones also met with the Toluao family and was told that Bessant was targeting the family residence. The prospect of abatement proceedings had raised the level of gang hatred toward the police.
The Crimes
On December 20, 2006, Police Officer Karina Pina was patrolling the east side of Oceanside on North River Road with Jacqueline Castañeda, a civilian "ride-along" passenger. Pina observed a red sedan with expired registration tags and conducted a traffic stop on Arthur Avenue just south of Gold Street at 6:17 p.m. Pina contacted the driver of the sedan, who did not have a driver's license. At 6:20 p.m., Bessant arrived at the scene and parked his patrol vehicle behind Pina's vehicle. Although Pina had not asked for backup, she assumed Bessant had heard over the police radio that she was conducting a traffic stop and had decided to "cover" her, as fellow officers often do. After a brief discussion with Bessant, Pina started to write out a traffic ticket.
As she was writing the ticket, Pina heard a "whiz" sound go by, coming from the 600 block of Arthur Avenue, which was behind her. At the same time, Bessant said, "Oh no. Oh no, " and grabbed himself under his left arm. Bessant drew his weapon and moved toward Pina's patrol vehicle, where he collapsed with his gun falling from his hand. At 6:32 p.m., Pina called for emergency backup on the police radio.
Pina heard at least three or four shots in rapid succession, but it was too dark to see who was shooting or pin down the location from where the shots were being fired. Castañeda heard four to six shots, and the last one or two shots were louder than the others. Castañeda said the first few shots were fired in rapid succession, followed by a slight pause and then the final one or two shots, which were louder. Castañeda, who had undergone firearms training, believed the last one or two shots came from a higher caliber weapon, such as a nine-millimeter Beretta.
A life flight helicopter took Bessant to the hospital. He died from a gunshot wound to his left chest near his armpit; the.22 caliber bullet penetrated his heart.
Initial Police Investigation and Arrests
Responding police officers set up a crime scene from the location of Pina's and Bessant's patrol vehicles northward to 680 Arthur Avenue. Police found the following items outside of 622 Arthur Avenue: expended.22 caliber casings; a.22 caliber live round (REM brand); an expended nine-millimeter cartridge casing; cigarettes and cigarette butts; beer cans; and a pool of saliva in the gutter on the curb line near a brick mailbox at the edge of the driveway. Police determined the location from which the shots had been fired was the brick mailbox; the mailbox was 386 feet from the spot where Bessant was shot.
Jose Compre, a WDVB gang member, lived at 622 Arthur Avenue. Three neighbors saw Compre, along with others, standing in front of 622 Arthur Avenue around 6:15 p.m. A fourth neighbor, who saw three males in front of 622 Arthur Avenue, recognized Compre as one of the males by his voice. Two other neighbors saw Meki Gaono, a WDVB gang member, running northbound toward 680 Arthur Avenue, his residence. Gaono was carrying a black object over his right shoulder.
Police arrested Gaono and searched his residence at 680 Arthur Avenue. In a shed behind the house, police found a soft black guitar case, which contained a.22 caliber Ruger rifle with a scope. Police also found a.22 caliber revolver in a kitchen drawer; the revolver was draped with a towel.
Police also arrested Compre and searched his residence at 622 Arthur Avenue. Police found a box of nine-millimeter bullets wrapped in a black bandana behind a dryer in the garage. Police also found a nine-millimeter cartridge in the pocket of a pair of shorts in Compre's bedroom closet.
Gaono and Compre were charged along with Taeotui for the first degree murder of Bessant, the assault with a firearm on Officer Pina and the assault with a semiautomatic firearm on Casteneda. Taeotui was tried separately.
On December 23, Jath Candy, a WDVB gang member, drove Taeotui to the Watts area of Los Angeles, where Taeotui's relative lived. Fellow WDVB gang member Sala Toluao and his sister, Sili Toluao, accompanied them because Sili was familiar with the Watts area.
On December 26, a police detective contacted Taeotui's relatives on Thunder Drive, who told him that they had not seen Taeotui since December 20. On December 28, the family filed a missing person's report regarding Taeotui. On January 4, 2007, police learned Taeotui had returned to his Oceanside residence, and they arrested him. Before the arrest, Taeouti was standing outside his residence and was flashing gang signs at passing traffic. During a search of Taeotui's residence, police found 27 rounds of.38-caliber ammunition in a bag and two.38-caliber rounds in a birdcage in a bedroom. In a closet downstairs, police found a sock containing 146 Remington.22 caliber cartridges. Gang graffiti was written on the inside wall of the closet, including "27 B-I-K, " "WS DVB" and a "C" crossed out with "K-187" and "Lil Tiptoe."
Physical and Forensic Evidence
A forensic firearms examiner determined that eight.22 caliber casings found near 622 Arthur Avenue had been fired by the rifle recovered from Gaono's garage. The firearms examiner also determined that the bullet that killed Bessant was fired from the rifle. On the basis of tests conducted to determine the "drop distance" of a bullet fired from the rifle at a target 386 feet away, the examiner concluded that the rifle was aimed at Bessant's head.
In March 2008, the resident of a house located directly behind the property at 622 Arthur Avenue (Compre's residence) found a nine-millimeter semiautomatic pistol in his backyard between the fence on the property line and a shed that abutted the fence. A blue shirt covered the gun. The shirt was layered with dirt and cobwebs, and the pistol was rusty and had dirt caked on it. Although no useful DNA or fingerprints were found on the pistol, the firearms examiner determined that a nine-millimeter casing found near 622 Arthur Avenue had been fired from the pistol. The firearms examiner also determined that the unfired nine-millimeter bullet that was found in Compre's shorts had been chambered in the pistol.
At trial, the firearms examiner testified that a nine-millimeter pistol makes a much louder sound than a.22 caliber revolver or a.22 caliber rifle. According to the firearms examiner, there is a subtle sound difference between a.22 caliber rifle and revolver, but the difference would be "mask[ed]" or unnoticeable if both weapons were fired simultaneously. Under those circumstances, the number of shots fired probably would be underestimated, the firearms examiner opined.
Taeotui's DNA was found on the textured portion of the.22 caliber revolver found in Gaono's kitchen. Taeotui could not be excluded as leaving fingerprints on the revolver. Taeotui's DNA also matched samples taken from one of 11 beer cans found near 622 Arthur Avenue and two of eight cigarette butts found in front of the property. Taeotui and Compre were possible DNA contributors to a mixture found in the pool of saliva outside 622 Arthur Avenue.
Taeotui's Admissions Introduced by Testimony of Fellow Gang Members
Candy, who had driven Taeouti to the Watts area of Los Angeles after the murder, testified under immunity agreements with the district attorney's office. The day after the murder, Candy met with Taeouti and Robert Seau, one of the "shot caller[s]" of the WDVB gang. Taeotui gave them the following account of the shooting of Bessant: Taeotui had been drinking in front of Compre's house with Gaono, Compre and a cousin of Robert Seau who went by "Red." Gaono and Taeouti saw Bessant at the corner of Arthur Avenue and Gold Street. Gaono leaned on the brick mailbox and looked through the scope of the.22 caliber rifle. Gaono said, "I can get a shot from here, " and began firing. Taeotui and Compre started shooting. As Taeouti later explained, "One of the homie's starts to shoot, I am going to shoot too." After the shooting, Compre ran inside his house; Gaono ran to his house, and Taeotui and Red went to the Seau residence. Shortly thereafter, Taeotui went to Gaono's house and offered to dispose of the revolver and the rifle, but Gaono rejected the idea and took the revolver from Taeouti.
Police interviewed Candy after he was arrested for possessing stolen property. Candy testified at Taeotui's trial under two use immunity agreements. One agreement involved his testimony concerning his actions as an accessory after the fact, and the other agreement involved testimony concerning other crimes he committed.
"Red" is Randy Seau. Candy testified that Taeotui never said "Red" was shooting. Seau was not charged in connection with Bessant's murder.
Sala Toluao entered into an immunity agreement with the district attorney's office. In an April 2007 interview with police, Toluao said that during the drive to Watts, Taeotui admitted being involved in the shooting and that he, along with Compre and Gaono, had fired a lot of shots. At trial, Toluao testified he did not recall anything Taeotui said during the drive to Watts. Toluao and Taeotui are cousins.
Joseph Tuimavave and Teofilo Aano, both of whom lived at 4906 Siesta Drive, also are cousins of Taeotui, who spent the night of the murder at their residence. Leatapo Porotesano, another cousin, also was at the Siesta Avenue residence that night.
Tuimavave, who testified under a grant of immunity, said Taeouti told him the following morning that he was there when " 'the shit happened.' "
Aano testified that he had refused the district attorney's offer of immunity and would not answer any questions. However, Aano did testify to some extent, alternately denying or failing to recall he told police during an interview that Taeotui had related that Gaono looked through the rifle scope and said " 'I got him, ' " and Taeotui had responded, " 'Are you sure?' " Reminded by the prosecutor that his police interview had been videotaped, Aano then admitted telling police that Taeotui had said that after Gaono started shooting, he started shooting and did not stop until his gun was empty. Aano refused to answer any more questions and said he would go to jail for Taeotui.
Porotesano testified under an immunity agreement, but responded "Hell no, " when asked if he wanted to be in court. Porotesano related what Taeotui had told him about the shooting: Taeotui was getting drunk outside with Gaono and Compre when the trio decided to "test out their guns." Gaono fired a rifle with a scope at the officer and then Taeotui and Compre began shooting. The officer fell on the first shot and Taeotui could see a female officer calling for backup as all three of them continued to shoot. Taeotui gave the gun he used to Gaono and they fled in different directions.
Gang Evidence
Detective Gordon Govier of the Oceanside Police Department's gang unit, testified that the WDVB gang is a criminal street gang with nearly 100 documented members. Govier testified that gang members gain status by committing violent crimes, such as murder, assault with deadly weapon, robbery, carjacking and shooting into residences. Govier opined the shooting of Bessant and the others was committed for the benefit of the WDVB gang. According to Govier, gangs generally consider police to be rivals, and WDVB gang members would view the recent increase in police activity, coupled with the prospect of abatement actions in the Back Gate area, as acts of disrespect that called for retaliation. The killing of a police officer also would benefit the WDVB gang by enhancing the gang's reputation for violence and increasing the level of fear the gang commanded in the community, Govier said. Also, younger members of the gang, such as Taeotui, Gaono and Compre, would increase their status in the gang by shooting at a police officer. Govier testified that gang culture required Taeotui to back up Gaono when he started shooting.
Govier testified that gang members put "green lights" on snitches - people who inform police about the gang's activities. A green light makes the snitch subject to violence, including death, by gang members at any time. According to Govier, the " 'N Super Blood Flamed Up Snitched N Got Ghost' " caption on a gang photograph posted online represented a green light on Candy.
DISCUSSION
I
Coerced Testimony
Taeotui contends the trial court erred by not granting his motion for dismissal, mistrial or other sanctions on the basis that the testimony of Candy, Toluao, Tuimavave, Aano and Porotesano, was obtained through coercive police and prosecution tactics. The contention is without merit.
After Toluao, Tuimavave, Aano and Porotesano testified, defense counsel filed a written motion for dismissal, mistrial or other sanctions on the basis that the witnesses' testimony had been coerced by "death threats." The court denied the motion. At the close of the prosecution's case-in-chief, defense counsel orally renewed his mistrial motion. Defense counsel claimed that the four above-mentioned witnesses, as well as Candy, had been "given multiple benefits, multiple pressure by law enforcement, " and at least one witness had lied in violation of his immunity agreement. The court denied the second motion as well.
A defendant has standing to challenge the admission of coerced - and therefore, involuntary - statements by third parties. (People v. Badgett (1995) 10 Cal.4th 330, 343-345 (Badgett).) To successfully exclude evidence obtained in violation of a third party's constitutional rights, the defendant must show the statement was coerced and his or her own due process right to a fair trial was violated as a consequence of that violation. (People v. Jenkins (2000) 22 Cal.4th 900, 966.) In addition to protecting the defendant's due process right to a fair trial, exclusion of the coerced testimony of a third party witness "ensure[s] the reliability of testimony offered against [the defendant.]" (People v. Boyer (2006) 38 Cal.4th 412, 444 (Boyer).)
On appeal, we independently review "the entire record, and most particularly the record of the witness's trial testimony, to determine whether, in our view, 'admission of [the third party's] testimony deprived defendant of a fair trial.' " (Badgett, supra, 10 Cal.4th at p. 350.)
" 'Because the exclusion is based on the idea that coerced testimony is inherently unreliable, and that its admission therefore violates a defendant's right to a fair trial, this exclusion necessarily focuses only on whether the evidence actually admitted was coerced.... [D]efendant can prevail on his suppression claim only if he can show that the trial testimony given by [the third party] was involuntary at the time it was given.' [Citation.]
"The purpose of exclusion of evidence pursuant to a due process claim such as defendants' is adequately served by focusing on the evidence to be presented at trial, and asking whether that evidence is made unreliable by ongoing coercion, rather than assuming that pressures that may have been brought to bear at an earlier point ordinarily will taint the witness's testimony." (Badgett, supra, 10 Cal.4th at pp. 347-348.)
The defendant bears the burden to prove (1) "improper coercion" and (2) "the pretrial coercion was such that it would actually affect the reliability of the evidence to be presented at trial." (Badgett, supra, 10 Cal.4th at p. 348.)
The Badgett court noted the "significant difference in the burden of proof" between a claim that a third party witness's testimony should be excluded on due process grounds and a claim that a defendant's confession or admission should be excluded under the right against self-incrimination. In the latter situation, the burden is on the prosecution to show the confession or admission was made voluntarily. (Badgett, supra, 10 Cal.4th at p. 348.)
Toluao
In April 2007, detectives interviewed Toluao at his high school. Initially, Toluao maintained that Taeotui did not tell him anything about the shooting. But the detectives repeatedly told Toluao, who at the time was on felony probation, they were going to charge him with being an accessory after the fact in Bessant's murder and that he could spend the rest of his life in jail because the accessory charge carried the same punishment as murder. One detective told Toluao that he was "in way over [his] head." Another detective asked Toluao if he was ready to put himself in jail for the rest of his life, and told Toluao that he could be taken away until he was an old man, and "[e]veryone and anyone wrapped up in this is going to go, " which Toluao understood as "go to prison." At one point, one of the detectives said:
Unbeknownst to Toluao, the maximum punishment for the crime of accessory to a felony is three years in state prison. (§§ 18, 32.) An attendant gang allegation would add a five-year enhancement. (§ 186.22, subd. (b)(1)(B).)
"When I'm done today, I get to go home. I get to go home to my dog. I get to go home to my lady. Okay. And I will continue to do so every single day for the rest of my life, because I will not be involved in crazy, crazy things against the law.... When I get home, I get to hug my lady. I get to kiss my lady. I get to watch TV. I get to do all the things that I love to do. At some point, Sala, those privileges and your ability to go home will be taken away. And I guarantee you it will be taken away until you are an old man. Do you understand that? So at this point, Sala - and I want you to look at me because I'm going to tell you - I'm going to tell it to you just how you need it to be told. At some point you have to realize that right now, you are the only person that can fuck up your life. You're 16."
Toluao was 18 years old at the time of the interview, not 16 years old as the detective said.
When Toluao met with the prosecutor and reviewed an immunity agreement two weeks before trial, the prosecutor told him that his maximum exposure for being an accessory after the fact with a gang allegation was eight years in prison. (See fn. 8, ante.) At this meeting, Toluao confirmed that during the trip to Watts, Taeotui said he was involved in the shooting and that he, along with Gaono and Compre, had fired a lot of shots. Toluao did not sign the immunity agreement until minutes before he testified at Taeotui's trial. When Toluao signed the immunity agreement, he again confirmed that during the drive to Watts Taeouti told him about the shooting. Toluao felt he was in "a tough spot."
However, while testifying, Toluao repeatedly told the prosecutor he was not sure or did not remember telling police detectives that Taeotui had discussed the shooting. At the prosecutor's request, the trial court found that Toluao was purposefully being evasive, which allowed for the introduction of Toluao's statements to detectives as prior inconsistent statements to his trial testimony under California v. Green (1970) 399 U.S. 149, 150, 154-164. (See People v. Green (1971) 3 Cal.3d 981, 989-991; Evid. Code, § 1235.)
On cross-examination, Toluao testified he did not want to spend the rest of his life in prison and believed that the only way he could avoid such a predicament was to tell the detectives what they wanted to hear - namely, that Taeotui told him about the shooting. Toluao also said if the detectives had not told him he could spend the rest of his life in prison, he would not have said anything about Taeotui making incriminating statements.
During redirect examination, Toluao testified that after the prosecutor informed him that his prison exposure was eight years, he told the prosecutor that what he told the detectives about Taeotui's incriminating statements was true. Toluao also testified he did not remember telling the detectives about Taeotui's statements.
Tuimavave
On March 21, 2007, police raided Tuimavave's residence, with guns drawn, when the family was asleep. According to Tuimavave, the police humiliated his father, who is a chief in the Samoan community, by making him stand nude in the living room and not allowing him to go the bathroom for five to 10 minutes even though he was suffering from severe stomach-related health problems.
Police arrested Tuimavave for possession of stolen property. At the police station, Tuimavave sat alone in an interview room for about three hours before police came in and told him they were not interested in the stolen property case. The detectives told Tuimavave they knew that Taeotui had stayed at his residence the night of the shooting and Tuimavave could be charged as an accessory after the fact for helping Taeotui hide out. The detectives also told Tuimavave that he was going to jail and could face the same punishment as Taeotui. Although Tuimavave initially said that Taeotui had not discussed the shooting, eventually, Tuimavave told the detectives that Taeotui had said he was there when " 'the shit happened, ' " referring to Bessant's murder.
Later, the prosecutor, a district attorney investigator and a detective met with Tuimavave and told him that he if he did not testify, he would be facing eight years in prison for being an accessory after the fact with a gang allegation. (See fn. 8, ante.) At this meeting, Tuimavave also was told that "this was a dead cop case and a jury would have no problem convicting" him if he was charged as an accessory after the fact.
Tuimavave signed an immunity agreement on the morning of his testimony at Taeotui's trial. On direct examination, Tuimavave testified that he remembered Taeotui saying he was there when " 'the shit happened.' " On cross-examination, Tuimavave testified that he felt threatened, pressured and "put in a bad spot" because he was on parole and had a prior strike. On recross-examination, Tuimavave testified that he told the detectives what they wanted to hear so he could go home.
Aano
Aano, who lives at the same residence as Tuimavave, was present when police conducted the March 21, 2007 raid on the house. Aano was arrested for possession of marijuana for sale. At the police station, the detectives told Aano: "We got you for accessory to murder." The detectives threatened Aano with spending the rest of his life in prison.
At trial, Aano testified that some of the statements set forth in an immunity agreement were not true. Aano testified that he had told the police what he thought they wanted to hear.
About a month before Taeotui's trial, the prosecutor, along with an investigator and a police detective, met with Aano and his grandmother. During this meeting, Aano confirmed that Taeotui had told him that Gaono had aimed the rifle, looked in the scope and said " 'I got him, ' " and Taeotui had replied " 'Are you sure?' "
A videotape of the police interview with Aano on April 21, 2007, was played for the jury.
Porotesano
Porotesano felt threatened after police told him that he would ruin his life if he did not cooperate and tell them about Taeotui. Police told him he would go to prison for eight years for being an accessory with the attendant gang allegation. Police again threatened Porotesano with an eight-year prison sentence if he did not cooperate when they served him with a subpoena.
Candy
Police arrested Candy on December 23, 2006, for possession of stolen property. At Taeotui's trial, Candy acknowledged he lied about almost everything at the December 23 police interview, except for admitting at the end of the interview that he was a member of the WDVB gang. Candy's parents hired an attorney to represent him. On January 3, 2007, Candy and his attorney met with the prosecutor, and he signed a cooperation agreement in which he promised to provide the district attorney's office with truthful information. At this meeting, Candy admitted that he gave Gaono the rifle, but lied about which gang member had given it to him in the first place. (See fn. 10, ante.)
Among other things, Candy falsely denied during the interview that he had given the.22 caliber rifle to Gaono. In fact, earlier in 2006 Candy had been given the rifle by a fellow gang member to hold. However, because Candy did not want his father to find the rifle, he gave it to Gaono approximately a month before Bessant's murder.
On January 9, 2007, Candy was released on his own recognizance and left the area to live elsewhere; the district attorney's office agreed to the relocation.
On June 20, 2008, Candy and the prosecutor entered an agreement in which the prosecution promised not to oppose the reduction of his receiving stolen property felony offense to a misdemeanor, with credit for time served. The agreement provided it would be voided if Candy made "any intentional deviation from the truth."
On October 16, 2008, Candy disclosed to prosecutors that he had fired shots into a house in April 2006. Because no one had been injured in the shooting, the prosecution did not charge Candy in connection with this incident. The district attorney's office entered into a separate immunity agreement with Candy to cover both this incident and Candy's disclosure while testifying that he, Compre and Taeotui went looking for rival gang members to shoot on Halloween in 2006. (See fn. 4, ante.)
At Taeotui's trial, Candy acknowledged that he had told police "hundreds of lies."
Analysis
In reviewing the totality of the facts in this case, we begin by noting that all five witnesses were WDVB gang members or Taeotui's relatives, who knew that gang culture prohibits cooperation with law enforcement in criminal investigations and subjects violators - including gang members - to punishment as snitches. In such cases, police reasonably can presume the witnesses initially would refuse to cooperate and would use interrogation approaches crafted to overcoming the witnesses' unwillingness to provide information. That is not to say that such circumstances necessarily justify certain police tactics; rather, it puts in context what occurred here.
A statement is considered involuntary if it is not the product of a rational intellect and free will. (Mincey v. Arizona (1978) 437 U.S. 385, 398.) A witness's statement is coerced if it is the product of police conduct which overcomes the individual's free will. (People v. Lee (2002) 95 Cal.App.4th 772, 782 (Lee).) In Lee, the Court of Appeal determined police had coerced a statement from a witness by giving him a polygraph test, lying that the test indicated a 97 percent probability that the witness was the killer, and threatening to charge him with first degree murder if he did not name the defendant as the killer. (Id. at pp. 782-785.)
The main basis for Taeotui's claim that these gang witnesses were subjected to coercion was that they were falsely told by police that as accessories they were subject to the same punishment as Bessant's murderers. This misstatement or lie was made only to Toluao, Tuimavave and Aano. Porotesano was not told he faced life in prison; police accurately told him his maximum exposure was eight years in prison. (See fn. 8, ante.) As to Candy, there was nothing improper in advising him that if convicted, he faced life imprisonment because at that time police had information that Candy had given Gaono the rifle used to kill Bessant, which would have made him an aider and abettor. An aider and abettor has the same criminal liability as the perpetrator of a crime. (§ 31.)
"California courts have long recognized it is sometimes necessary to use deception to get at the truth." (Lee, supra, 95 Cal.App.4th at p. 785.) For example in In re Walker (1974) 10 Cal.3d 764, 777, the suspect was falsely told he was dying; in People v. Castello (1924) 194 Cal. 595, 602, the suspect was falsely told there were eyewitnesses to the crime; and in People v. Watkins (1970) 6 Cal.App.3d 119, 124-125, the suspect was falsely told his fingerprints were found on the getaway car.
"The business of police detectives is investigation, and they may elicit incriminating information from a suspect by any legal means. '[A]lthough adversarial balance, or rough equality, may be the norm that dictates trial procedures, it has never been the norm that dictates the rules of investigation and the gathering of proof.' [Citation.] 'The courts have prohibited only those psychological ploys which, under all the circumstances, are so coercive that they tend to produce a statement that is both involuntary and unreliable.' " (People v. Jones (1998) 17 Cal.4th 279, 297-298.)
Thus, the courts have held, a "deception which produces a confession does not preclude admissibility of the confession unless the deception is of such a nature to produce an untrue statement." (People v. Watkins, supra, 6 Cal.App.3d at p. 125; see also People v. Farnam (2002) 28 Cal.4th 107, 182 ["Where the deception is not of a type reasonably likely to procure an untrue statement, a finding of involuntariness is unwarranted."].)
"Lies told by the police to a suspect under questioning can affect the voluntariness of an ensuing confession, but they are not per se sufficient to make it involuntary." (People v. Musselwhite (1998) 17 Cal.4th 1216, 1240; People v. Chutan (1999) 72 Cal.App.4th 1276, 1280 [police trickery].) "So long as a police officer's misrepresentations... are not of a kind likely to produce a false confession, confessions prompted by deception are admissible in evidence." (People v. Chutan, supra, at p. 1280.) Only deception which, under the circumstances, is so coercive that it tends to produce statements that are both involuntary and unreliable, is improper. (People v. Ray (1996) 13 Cal.4th 313, 340.)
The false statement or lie regarding the prison exposure made to Toluao, Aano and Tuimavave was not " 'of such nature to produce an untrue statement.' " (Lee, supra, 95 Cal.App.4th at p. 785, italics omitted.) Unlike the interrogation in Lee, in which the police made up evidence to create criminal liability for a witness, the questioning of Toluao, Aano and Tuimavave was designed to produce the truth, not merely to produce evidence to support a version of events the police had already decided upon. (Id. at p. 786.)
"Courts have repeatedly found proper interrogation tactics far more intimidating and deceptive than those employed in this case. (See, e.g., Frazier v. Cupp (1969) 394 U.S. 731, 739 [officer falsely told the suspect his accomplice had been captured and confessed]; People v. Jones[, supra, ] 17 Cal.4th 279, 299 [officer implied he could prove more than he actually could]; People v. Thompson (1990) 50 Cal.3d 134, 167 [officers repeatedly lied, insisting they had evidence linking the suspect to a homicide]; In re Walker[, supra, ] 10 Cal.3d 764, 777 [wounded suspect told he might die before he reached the hospital, so he should talk while he still had the chance]; People v. Watkins[, supra, ] 6 Cal.App.3d 119, 124-125 [officer told suspect his fingerprints had been found on the getaway car, although no prints had been obtained]; Amaya-Ruiz v. Stewart (9th Cir. 1997) 121 F.3d 486, 495 [suspect falsely told he had been identified by an eyewitness].)" (People v. Smith (2007) 40 Cal.4th 483, 505.)
Although Taeotui characterizes the police interrogation of Toluao as "intense" and "threatening, " it took place at his high school - not at the police station. At the end of the interrogation, Toluao did not seem upset. At trial, Toluao referred to Detective Sylvia O'Brien, one of the two interrogators, by her first name.
Taeotui also emphasizes the warrant search of the residence of Aano and Tuimavave, when police humiliated the Somoan chief, and implies this added to the coercive nature of the interrogations that followed. Although Aano said the search was a frightening experience, neither he, Tuimavave nor Porotesano claimed that witnessing the scene caused them to make false statements about Taeotui.
Porotesano was present during the warrant search as well as Aano and Tuimavave.
Assuming arguendo that the pretrial interview statements of Toluao, Aano and Tuimavave were induced by the detective's unduly coercive interrogation technique of misstating the length of sentences they faced, Taeotui cannot prevail because he cannot show the second prerequisite for relief, namely, that the trial testimony of these witnesses was tainted by, or the product of, the pretrial coercion.
"A claim that a witness's [trial] testimony is coerced... cannot prevail simply on grounds that the testimony is the 'fruit' of some constitutional transgression against the witness. Instead, the defendant must demonstrate how such misconduct, if any, has directly impaired the free and voluntary nature of the anticipated testimony in the trial itself." (Boyer, supra, 38 Cal.4th at p. 444.) Emphasis on pretrial coercion " 'misperceives the limited nature of the exclusion recognized for coerced third party testimony. [Citation.] [T]his exclusion necessarily focuses only on whether the evidence actually admitted was coerced.... [D]efendant can prevail on his suppression claim only if he can show that the trial testimony given by [the third party] was involuntary at the time it was given.' " (Badgett, supra, 10 Cal.4th at p. 347.) "The purpose of exclusion of [coerced] evidence" is served "by focusing on the evidence to be presented at trial and asking whether that evidence is made unreliable by ongoing coercion, rather than assuming that pressures that may have been brought to bear at an earlier point ordinarily will taint the witness's testimony." (Id. at pp. 347-348.)
In People v. Douglas (1990) 50 Cal.3d 468, 497 (Douglas), disapproved in part on another ground in People v. Marshall (1990) 50 Cal.3d 907, 933, footnote 4, Mexican authorities beat a third party prior to obtaining statements implicating the third party and the defendant. Our Supreme Court held the third party's freely-offered trial testimony was admissible. "[The witness] was not subjected to any violence by United States authorities.... [He] testified under a general grant of immunity, precluding use against him of any statements made in connection with his testimony." (Douglas, at p. 502, citation & fn. omitted.) The agreement testimony was subject to cross-examination and impeachment, and defense counsel had " 'adequate tools' with which to challenge the reliability of [the witness's] testimony, being fully apprised of all the circumstances surrounding [his] earlier interrogation in Mexico." (Id. at p. 503.)
To the extent that their interviews with the detectives were tainted by the false statement that as accessories they faced life in prison, Toluao, Aano, and Tuimavave were properly informed that their maximum exposure was eight years in prison well before they testified at Taeotui's trial. Moreover, Toluao and Tuimavave signed immunity agreements, which required them to testify fully and truthfully, after they were properly informed of their prison exposure. Testimony given under an immunity agreement does not violate a defendant's right to a fair trial when the grant of immunity is conditioned on the witness testifying fully and fairly. (People v. Allen (1986) 42 Cal.3d 1222, 1252.) That is what the immunity agreements here required.
At trial, these witnesses simply were not subject to the coercion, if any, of their interviews by the detectives. If those interviews were coercive, the taint had been removed by the time of trial. All of these witnesses - Toluao, Tuimavave, Aano, Porotesano and Candy - were subject to extensive cross-examination and impeachment. (Douglas, supra, 50 Cal.3d at p. 503.) The fact that, to varying degrees, the witnesses changed their trial testimony depending on whether the prosecutor or defense attorney was conducting the examination - or in Aano's case flatly repudiated his statements to the detectives - does not establish that the taint still existed. These changes in testimony and Aano's repudiation went to the weight the jury would give to the testimony.
Aano, who refused to sign his immunity agreement, apparently did not feel pressured to conform his trial testimony to his earlier statement. Tuimavave said he did not feel threatened at trial. Toluao, whom the trial court found to be "deliberately evasive, " was reluctant to testify because he feared being characterized as a snitch. Toluao said the pressure he felt at trial was a pressure to tell the truth. Toluao also said he would not say something incriminating about a fellow gang member to save his own neck because that would be worse than being a snitch. At trial, Porotesano repeatedly vouched for all of his statements to the police and testified that the police and prosecutor had told him to only tell the truth. Candy admitted repeatedly lying to the police before finally telling the truth and claimed he was testifying truthfully at trial.
In sum, Taeotui has not met his burden to show that the purported coercion of these witnesses was operating at trial.
II
Admission of Immunity Agreements
Taeotui contends the trial court erred by admitting into evidence the immunity agreements between the district attorney's office and each of the five witnesses - Toluao, Tuimavave, Aano, Porotesano and Candy - who testified about incriminating admissions Taeotui made. Taeotui asserts the admission of the agreements violated his Sixth Amendment right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
The confrontation clause provides that in "all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him." (U.S. Const., 6th Amend.) The primary purpose of the confrontation clause is to "ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." (Maryland v. Craig (1990) 497 U.S. 836, 845.)
In Crawford, the United States Supreme Court held that testimonial hearsay evidence is admissible only when the proponent establishes unavailability of the witness and a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 68.) " 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated." (Evid. Code, § 1200, subd. (a).) Statements which are not offered to prove the truth of the matters asserted do not constitute hearsay.
The court in Crawford declined to "spell out a comprehensive definition of 'testimonial.' " (Crawford, supra, 541 U.S. at p. 68.) However, the Crawford court
"did list '[v]arious formulations' of the class of testimonial statements: ' "[E]x parte in-court testimony or its functional equivalent - that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially, " [citation]; "extrajudicial statements... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions, " [citation]; "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial, " [citation].' " (People v. Sisavath (2004) 118 Cal.App.4th 1396, 1401 (Sisavath).)
The court in Crawford also noted: "Whatever else the term [testimonial] covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." (Crawford, supra, 541 U.S. at p. 68.) The Crawford court "used the term ' "interrogation" ' in 'its colloquial, rather than any technical legal, sense.' It reasoned that the statement at issue in [that] case was 'knowingly given in response to structured police questioning' and consequently 'qualifie[d] under any conceivable definition.' " (Sisavath, supra, 118 Cal.App.4th at p. 1402.)
In Crawford, the Supreme Court also noted: "When the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his [or her] prior testimonial statements." (Crawford, supra, 541 U.S. at p. 60, fn. 9.) In addition, the confrontation clause "also does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted." (Ibid.; see also People v. Combs (2004) 34 Cal.4th 821, 842-843.)
During the testimony of Toluao, Tuimavave, Aano, Porotesano and Candy, the prosecutor read aloud verbatim the applicable immunity agreement, which was projected on a screen for the witness and jury to see. Each of the immunity agreements, except for Candy's agreement, recounted the incriminating admission(s) made by Taeotui. At the close of evidence, the prosecutor moved to admit all of the immunity agreements, which had been previously marked as exhibits. Defense counsel objected on hearsay, relevancy and Evidence Code section 352 grounds as well as on "all the constitutional protections." The prosecutor responded by arguing that each immunity agreement was relevant because the agreement was "the contract" between the district attorney's office and the witness: "That's what the People and the witness were relying on when the witness took the stand. The jury has a right to see the full context of what is in that agreement." The prosecutor also suggested a limiting instruction would eliminate any issues. The trial court admitted the agreements over the defense's objection. The trial court added that it assumed that in the prosecutor's closing argument, "it will be [made] clear that the limiting instruction will apply to these immunity agreements. That is, what is in the immunity agreement is not admitted for the truth of the matter but to show the things that the prosecutor [says it] will show...."
The record does not indicate that Candy's immunity agreement was projected on the screen.
Prior to trial, the court had granted a defense motion to deem objections stated in terms of " 'all objections constitutional objections' " adequate to preserve any and all applicable federal and state constitutional grounds without the need to state such grounds with specificity on each such occasion.
On appeal, Taeotui claims admission of the immunity agreements, which purported to memorialize the incriminating statements made by the immunized witnesses to police detectives, violated his confrontation rights because the prosecutor (1) authored the agreements and (2) did not testify at trial and was not subject to cross-examination.
Before addressing this double hearsay Crawford challenge, we note the prosecutor's use of the immunity agreements during his examination of the five witnesses did not violate Crawford for two reasons: (1) the witnesses were subject to cross-examination; and (2) the agreements were used for a nonhearsay purpose.
Generally, hearsay evidence is inadmissible unless the law provides an exception for its admission. (Evid. Code, § 1200, subd. (b).) A hearsay exception for prior inconsistent statements is codified in Evidence Code section 1235.
As to Toluao, Tuimavave and Aano, who were forgetful or evasive during their testimony, the prosecutor's use of the immunity agreements during their testimony was justified for a nonhearsay purpose - namely, as prior inconsistent statements under Evidence Code section 1235. (See California v. Green, supra, 399 U.S. at p. 164; People v. Green, supra, 3 Cal.3d at pp. 987-988.) In California v. Green, supra, 399 U.S. 149, the high court held the admission of a witness's prior inconsistent statements under Evidence Code section 1235 did not violate a criminal defendant's federal constitutional right to confrontation. (Id. at p. 164.) Crawford cited California v. Green, supra, 399 U.S. 149, with approval, declaring:
Evidence Code 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 [Evidence Code] Section 770."
"[W]e reiterate that, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. See California v. Green, [supra, ] 399 U.S. 149, 162.... It is therefore irrelevant that the reliability of some out-of-court statements ' "cannot be replicated, even if the declarant testifies to the same matters in court." '... The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it." (Crawford, supra, 541 U.S. at p. 60, fn. 9, citation omitted.)
Double hearsay is admissible if each level falls within an exception to the hearsay rule. (People v. Ayers (2005) 125 Cal.App.4th 988, 995; Evid. Code, § 1201.)
As to Taeotui's double hearsay argument challenging the admission of the immunity agreements themselves because the prosecutor authored them, he points out the limiting instruction given to the jury was not expressly directed at the immunity agreements as exhibits, and the prosecutor did not make that connection in his closing argument. Given the all-embracing standing "constitutional objection" granted by the trial court in this case (see fn. 13, ante) and the principle that the law requires an objection to give the trial court an opportunity to prevent error (see People v. Zapien (1993) 4 Cal.4th 929, 979), we assume for purposes of this appeal that Taeotui adequately preserved the Crawford issue below. However, in objecting on hearsay grounds, Taeotui did not indicate below that this objection was based on the double hearsay nature of the immunity agreements. In other words, the record does not show Taeotui's counsel mentioned the prosecutor's authorship of the immunity agreements as a ground to exclude the immunity agreements. Thus, Taeotui has forfeited the issue. (Evid. Code, § 353, subd. (a).)
Evidence Code section 353, subdivision (a) provides that a judgment shall not be reversed because of the erroneous admission of evidence unless there was a timely objection "so stated as to make clear the specific ground of the objection."
On the other hand, if we assume that Taeotui adequately preserved the double hearsay Crawford objection below, the next question is whether the second layer of hearsay was testimonial. Because the immunity agreements purport to memorialize police interrogation, we determine they were testimonial. (Crawford, supra, 541 U.S. at p. 68; Sisavath, supra, 118 Cal.App.4th at p. 1402.)
Relying on Correa v. Superior Court (2002) 27 Cal.4th 444 (Correa), the People argue the prosecutor's authorship of the immunity agreement was ministerial - akin to a translator - and should not be considered a layer of hearsay. We disagree. In Correa, the defendant claimed that a police officer should not have been permitted to testify to the translated hearsay statements of a foreign-speaking defendant. The defendant argued that the officer's testimony was a classic example of double hearsay, depriving the defendant of the opportunity to meaningfully cross-examine the individual who heard the statements firsthand - the translator. The Court of Appeal agreed and reversed, concluding that the admission of single-level hearsay from a trained investigative officer would not pass constitutional muster if it were expanded to include multiple layers of hearsay through translation because the defendant would be deprived of the opportunity for meaningful cross-examination about the accuracy of the translated out-of-court statements. (Correa, supra, 27 Cal.4th at pp. 448, 464.)
In reversing the Court of Appeal, our Supreme Court held that a generally unbiased and adequately skilled translator simply serves as a " 'language conduit, ' " so that a translated statement will be considered to be the statement of the original declarant and not that of the translator. (Correa, supra, 27 Cal.4th at p. 455.) However, our high court restricted its holding to translated statements that can be "fairly attributable to a declarant." (Id. at p. 457.) It is up to the trial court to determine on a case-by-case basis whether the translator was merely the language conduit for the declarant and whether the statement could be fairly attributed to the declarant. (Id. at pp. 458-459.) In doing so, the Correa court said the trial court must consider four factors: (1) who was the party that supplied the interpreter; (2) did the interpreter have any motive to mislead or distort the information; (3) what were the interpreter's qualifications and language skills; and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated. (Ibid.) The Correa court warned that there might be cases where the interpreter should be called to testify in order to determine bias and/or skill. (Id. at p. 459.)
In authoring the immunity agreement, the prosecutor here was not a disinterested bystander, and he was not questioned about his biases. The prosecutor, as author of the immunity agreement, could not objectively be considered a mere language conduit under Correa, supra, 27 Cal.4th 444. Hence, there was "the danger of faulty reproduction" (California v. Green, supra, 399 U.S. at p. 158) of the witnesses' statements to police as recounted by the prosecutor in the immunity agreements. The availability of Toluao, Tuimavave, Aano, Porotesano and Candy for cross-examination did not overcome the confrontation issue presented by the prosecutor's authorship of the immunity agreements under Crawford, supra, 541 U.S. 36. Under these circumstances, such cross-examination cannot substitute for cross-examination of the prosecutor.
Nonetheless, the admission of the immunity agreements themselves was harmless. (Chapman v. California (1967) 386 U.S. 18 (Chapman).)
The standard of review, as set forth in Chapman, " 'requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.' (Chapman, supra, 386 U.S. at p. 24.) 'To say that an error did not contribute to the ensuing verdict is... to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.' (Yates v. Evatt (1991) 500 U.S. 391, 403.) Thus, the focus is what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is 'whether the... verdict actually rendered in this trial was surely unattributable to the error.' (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)" (People v. Neal (2003) 31 Cal.4th 63, 86 (Neal).)
In light of the prosecutor's use of the immunity agreements while examining the five witnesses, which was proper, the admission of the immunity agreements themselves was merely cumulative and, therefore, harmless. (See People v. Schmaus (2003) 109 Cal.App.4th 846, 860 [confrontation clause error harmless beyond a reasonable doubt if " 'the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence' "]; U.S. v. Nielsen (9th Cir. 2004) 371 F.3d 574, 582 [confrontation clause error harmless beyond a reasonable doubt where extrajudicial statement was of "minor importance" and there was "cumulative evidence of [defendant's] guilt"].)
There was overwhelming evidence of Taeotui's guilt in the murder of Officer Bessant. In addition to the incriminating admissions he made, which were properly admitted through the testimony of the five witnesses, Taeotui's DNA linked him to a beer can, two cigarettes and a pool of saliva near the mailbox at 622 Arthur Street - the location from which the deadly bullet was fired. Immediately after the shooting, Taeotui ran to a fellow gang member's nearby residence (Seau). Taeotui's DNA was found on the.22 caliber revolver found in the kitchen drawer of Gaono's residence. Police found.22 caliber cartridges in Taeotui's residence. After the shooting, Taeotui went to Los Angeles to get out of town, which was damning evidence of consciousness of guilt. We are convinced beyond a reasonable doubt that the admission of the immunity agreements themselves and their presence in the jury room did not contribute to the verdict and was unimportant in relation to everything else the jury considered. (Chapman, supra, 386 U.S. at p. 24; Neal, supra, 31 Cal.4th at p. 86.)
Similarly, Taeotui cannot prevail on his claim that the trial court abused its discretion under Evidence Code section 352 by admitting the immunity agreements into evidence because such error, if any, was not prejudicial. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
III
Prejudicial Courtroom Atmosphere
Taeotui contends the trial court made various evidentiary rulings that together created an inherently prejudicial courtroom environment and deprived him of a fair trial. The contention is without merit.
One of these rulings was to allow a six by five foot board, which showed headshot photographs of 15 individuals connected with the case, to be displayed in the courtroom throughout the trial. Eight of these individuals, including Taeotui, were identified as WDVB gang members as well as by their names. Taeotui asserts the court could have ordered the large photo display of 15 photographs be taken down "so that it would not hover over the entirety of the proceedings" or ordered the gang member captions be removed.
A second ruling allowed the prosecution to show a computer-generated animation depicting the prosecution's theory of how the shooting of Officer Bessant occurred. Taeotui complains that the use of a red line (see fn. 18, ante) falsely suggested a laser sighting rifle was used to kill, because the color red is "closely associated" with laser sighting devices. Thus, Taeouti argues, the "animation conveyed to the jury the false notion that the shooter did not merely aim at Bessant, ... but used a laser device to achieve even greater accuracy." Taeotui claims this false suggestion would have been eliminated if the court had ordered the prosecution to change the color of the line in the animation.
The animation, which was shown during the prosecutor's opening statement and his closing argument, starts with a diagram and map of the surrounding area and then zooms into overhead and street-level views of the corner of Arthur Avenue and Gold Street. It shows individuals - a uniformed male police officer, a uniformed female police officer and a female civilian - standing near two police cars. The individuals are shown at various angles and then a red line hits the male officer. The view then zooms up Arthur Avenue and follows the red line down a dark street until it reaches the end of a rifle barrel and an individual holding the rifle. The view is rotated around this individual until it is behind him and the rifle. The view then follows the red line back to the uniformed male officer. Then the picture shifts to a view of the male officer in the cross-hairs of the rifle's scope. The scope circle is expanded until the screen is filled with a view of the male officer standing at the back of a car, with a stop sign above his head and the cross-hairs focused on the back of his head. The image shifts back to a view over the shooter's shoulder and streaks back toward the male officer, zeroing in on him. The red line has shifted to the point on the male officer's chest where the bullet struck Bessant. The other persons on the corner fade from view and the male officer is shown slumping by the right front tire of a police car as the animation fades to black.
Another ruling allowed admission of a CD recording of police radio transmissions made by Officers Pina and Bessant, as well as other officers, immediately before, during and after the shooting. The wording of each transmission was displayed on a screen, along with a photograph of the particular uniformed officer who was speaking; each of these photographs had an American flag in the background. Taeotui faults the trial court for not ordering redaction of the American flag in the background of the officers' photographs because images of the American flag are likely to evoke positive associations.
The court also admitted surveillance photographs of Taeotui taken shortly before his arrest in which he is flashing gang signs. Taeotui asserts that the selection of photographs showing him flashing the hand signals for "Crip Killer" was unduly prejudicial.
Taeotui also complains about the use of a image taken from a Web site associated with WDVB gang members with the words, "Fuck the Police"; the image was projected on a screen in the courtroom.
Generally, trial court rulings about the admissibility of evidence are reviewed on appeal under an abuse of discretion standard. (People v. Alvarez (1996) 14 Cal.4th 155, 201.) More specifically, "[u]nder Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.... [E]xercise of that 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.' " (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, citation omitted.)
The trial court did not abuse its discretion in allowing the headshot photographs of the 15 individuals who were related to the case to be displayed throughout the trial. As the trial court pointed out, the photographic display assisted the jury to "keep track" of the witnesses and other individuals who were referred to during the trial. We note numerous witnesses had the same or similar sounding last names. Further, the identification of eight of the 15 individuals, including Taeotui, as gang members was not in dispute.
The court did not abuse its discretion in allowing the prosecutor to show the animation of Bessant's shooting during his opening statement and closing argument. In People v. Hood (1997) 53 Cal.App.4th 965, 969, a murder prosecution, the Court of Appeal held a computer animation of the shooting, which was based on information from witnesses and experts, was properly introduced. Noting the animation was "clinical and emotionless, " the appellate court found the trial court did not abuse its discretion in determining the probative value of the animation outweighed its prejudicial impact. (Id. at p. 972.) Taeotui's argument about the red line in the animation is speculative at best.
With respect to the animation, the trial court instructed the jury as follows: "In the People's closing argument you will again see the computer animation that the prosecution believes visually depicts some of the circumstances surrounding this occurrence. [¶] Please remember, however, that any presentation in a closing argument is not evidence in and of itself. Evidence comes to you solely from the testimony of witnesses and the introduction of physical or other evidence admitted during the trial. [¶] As with all information in a closing argument, the computer animation represents what the People believe the evidence has shown in this case. You may disregard the animation if you find it to be inaccurate or unhelpful. On the other hand, if you find the demonstration to be supported by the evidence you have received in this case, you may consider the animation to the extent it helps you better understand the prosecution's closing argument. Please remember, however the computer animation is not itself evidence in this case."
As to the police radio transmissions with the accompanying photographs of the speaking officers with an American flag in the background, we disagree that the brief display of photographs of police officers with a flag in the background was inherently prejudicial. There was no reasonable likelihood that the photographs of officers with the American flag in the background influenced the jury, which had been instructed not to be swayed by bias, sympathy, prejudice or public opinion. We presume jurors understand and follow the court's instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
More specifically, the jury was instructed: "Do not let bias, sympathy, prejudice, or public opinion influence your decision. Bias includes, but is not limited to, bias for or against the witnesses, attorneys, defendant or alleged victims: based on disability, gender, nationality, national origin, race or ethnic background, religion, gender identity, sexual orientation, age, occupation, lifestyle or socioeconomic status."
The surveillance photographs were made from a videotape by police of Taeotui flashing gang signs outside his residence on the day he was arrested. The photographs depict the following hand signs: "W" for "Westside, " "V" for "Valley, " and "C" for "Crip" (the rival gang) with one hand; and a gun shape with the other hand for "Crip Killer." The photographs were relevant to show that up until his arrest Taeotui continued to embrace the gang mentality of killing or acting violently toward gang enemies.
The "Fuck the Police" image was taken from a WDVB-related Web site. The trial court overruled Taeotui's objection to the exhibit being entered into evidence, noting the exhibit showed an attitude toward the police, which was relevant. During the prosecutor's closing argument, the "Fuck the Police" slide was displayed on a PowerPoint presentation, which inadvertently included a previously redacted phrase, "Kop Killuhz." After closing arguments by both counsel and before the prosecution's rebuttal argument, the prosecutor informed the court about the "Kop Killuhz" phrase, which had been shown for about five seconds before being changed. Defense counsel said he believed it was an inadvertent mistake. The trial court said it did not notice "Kop Killuhz" on the slide because of the small size of print. We do not deem the five-second showing of the "Kop Killuhz" phrase to be inherently prejudicial given the misspellings and brief showing.
When the exhibit was identified by the prosecution's gang expert, the court instructed the jury that there was no evidence that Taeotui had anything to do with the image or knew about it.
The trial court did not abuse its discretion in making any of these evidentiary rulings. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 214 ["Defendant offers no basis for concluding the coroner's head exhibit [model head made of plastic foam pierced with two knitting needles] threatened to create such a prejudicial impact that the trial court abused its discretion in admitting it."].) Moreover, but for the inadvertent mistake in showing the "Kop Killuhz" phrase, which was very brief, there was no error.
Nonetheless, Taeotui claims that the totality of these exhibits "set a tone in the courtroom which eroded the presumption of innocence." In other words, Taeotui is asking us to consider the cumulative effect of these rulings, which he asserts removed the presumption of innocence and deprived him of a fair trial.
"The right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment." (Estelle v. Williams (1976) 425 U.S. 501, 503 (Estelle).) The presumption that a defendant is innocent until proved guilty "is a basic component of a fair trial under our system of criminal justice." (Ibid.) To assure the presumption of innocence applies, "courts must be alert to factors that may undermine the fairness of the fact-finding process [and] must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt." (Ibid.)
We realize there are courtroom practices that are so detrimental to the presumption of innocence that they violate a defendant's due process rights. For example, compelling a defendant to appear at a jury trial in prison clothing is improper. (Estelle, supra, 425 U.S. at pp. 504-505.) Unwarranted shackling or gagging of a defendant during trial also is impermissible. (Illinois v. Allen (1970) 397 U.S. 337, 345.) Use of an excessive number of security personnel in a courtroom also can damage the presumption of innocence. (Holbrook v. Flynn (1986) 475 U.S. 560, 567-568; Estelle, at p. 505.)
Although "certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial" (Carey v. Musladin (2006) 549 U.S. 70, 72), what happened in Taeotui's trial - either singularly or cumulatively - did not come close to such a description. Taeotui was not required to wear jail clothing, nor was he shackled or gagged during the trial. The presumption of innocence was not undercut.
Considered singularly or together, we find (1) the photo exhibit, which identified eight individuals, including Taeotui, as WDVB gang members and was on display throughout the trial; (2) the animation, with a red line recreating the prosecution's theory of how Bessant's shooting took place; (3) the American flag background in the photographs of police officers heard on radio transmissions; (4) photographs of Taeotui flashing a "Crip Killer" hand sign; (5) the "Fuck the Police" image from the WDVB Web site; and (6) even the brief, inadvertent "Kop Killuhz" image were not unduly suggestive of guilt. Taeotui's claim to the contrary is based on conjecture and underestimates the capability of jurors to follow the court's instructions. Taeotui's trial was not unfair. The evidentiary rulings he challenges concerned relevant evidence, unlike the situations in Illinois v. Allen, supra, 397 U.S. 337; Estelle, supra, 425 U.S. 50l; and Coy v. Iowa (1988) 487 U.S. 1012. The prosecutor presented evidence it was entitled to present. The trial court did not abuse its discretion in allowing the prosecutor to present such evidence. The inadvertent, five-second display of the "Kop Killuhz" image was unfortunate, but it did not make the trial unfair. "Lengthy criminal trials are rarely perfect...." (People v. Hill (1998) 17 Cal.4th 800, 844.)
IV
Lesser Included Instruction
Count 3 of the amended information charged Taeotui with assault with a semiautomatic firearm (rifle) on civilian ride-along Castañeda. The jury instruction on count 3 presented an aiding and abetting theory and direct perpetrator theory, leaving to the jury to determine which theory to apply.
In the jury instruction, the first two elements begin with the language: "The defendant did an[/the] act, or aided and abetted an[/the] act...." The third element begins with the language: "When the defendant acted, or when he aided and abetted the act...." The fourth element begins with the language: "When the defendant acted he had the present ability, or when he aided and abetted the act the perpetrator had the present ability...."
Taeotui contends the trial court erred by failing to instruct the jury on assault with a firearm (§ 245, subd. (a)(2)) as a lesser included offense to the crime of assault with a semiautomatic firearm (§ 245, subd. (b)) in count 3. We agree.
Section 1159 provides a defendant may be found guilty "of any offense, the commission of which is necessarily included in that with which he is charged." (§ 1159.) "Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117.) Assault with a firearm is a lesser included offense of assault with a semiautomatic firearm because the greater offense cannot be committed without also committing the lesser offense.
A defendant is entitled to instruction on lesser included offenses, without a request or even over objection, if the evidence raises a question as to whether all of the elements of the charged offense were present, but not when there is no evidence the offense was less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).) " 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could... conclude[]" ' that the lesser offense, but not the greater, was committed." (Id. at p. 162; see also People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8 (Barton) ["evidence that a reasonable jury could find persuasive"].)
The rule requiring a lesser included offense instruction if the evidence merits such an instruction avoids an unwarranted all-or-nothing choice for the jury, and insures a verdict no harsher or more lenient than the evidence merits. (Breverman, supra, 19 Cal.4th at p. 155.) "[A] defendant is entitled to a lesser offense instruction... precisely because he should not be exposed to the substantial risk that the jury's practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." (Keeble v. United States (1973) 412 U.S. 205, 212-213 (Keeble).)
Here, there was substantial evidence to support Taeotui's conviction of assault with a semiautomatic weapon on Castañeda under a theory he aided and abetted Gaono, who fired the rifle, which was a semiautomatic firearm. (See People v. Prettyman (1996) 14 Cal.4th 248, 262.) However, there also was substantial evidence that Taeotui committed an assault on Castañeda with the.22 caliber revolver, which was not a semiautomatic firearm. In the absence of evidence that the shooters knew that a civilian was with the two officers, Taeotui was entitled to have the jury instructed on the lesser and necessarily included offense of assault with a firearm on Castañeda. The jury could have reasonably found he fired his revolver in her direction rather than aiding and abetting Gaono, who had the semiautomatic rifle and was shooting in her direction, regardless of whether defense counsel argued such a theory. (See Barton, supra, 12 Cal.4th at pp. 195-196 & fn. 4 [court must instruct on a lesser included offense, despite defendant's express objection, "when the evidence is substantial enough to merit consideration by the jury"].)
On this record, we do not find the instructional error harmless. Failure to instruct on necessarily lesser included offenses supported by the evidence is grounds for reversal when "it appears 'reasonably probable' the defendant would have achieved a more favorable outcome had the error not occurred." (Breverman, supra, 19 Cal.4th at p. 178.) " '[P]robability, ' " in this context, "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918, summarizing the holding of Watson, supra, 46 Cal.2d 818, 836-837.) Without the lesser assault with a firearm instruction, the jury faced an " 'unwarranted all-or-nothing choice' " of conviction or acquittal on facts showing Taeotui was clearly guilty of some offense against Castañeda. (People v. Hughes (2002) 27 Cal.4th 287, 365.) "We cannot say that the availability of a third option - convicting [Taeouti] of [assault with a firearm] - could not have resulted in a different verdict [on count 3]." (Keeble, supra, 412 U.S. at p. 213; see also Barton, supra, 12 Cal.4th at p. 196.)
If a greater offense must be reversed, but a lesser included offense could be affirmed, the prosecution is given the option to retry the greater offense or accept a reduction to the lesser offense. (People v. Kelly (1992) 1 Cal.4th 495, 528.)
V
Gang Enhancement
Taeotui contends, and the People concede, his sentence must be modified to delete the stayed 10-year gang enhancement term on count 1, the first degree murder conviction.
Because of the special circumstance finding, the trial court imposed a term of life without the possibility of parole on count 1 and stayed the 10-year criminal street gang enhancement under section 186.22, subdivision (b)(1). In People v. Lopez (2005) 34 Cal.4th 1002, 1011, the Supreme Court held that when the crime is punishable in the state prison for life, the enhancements under section 186.22, subdivision (b)(1) do not apply. Accordingly, we order the trial court to strike the stayed section 186.22, subdivision (b)(1) enhancement.
DISPOSITION
The conviction of assault with a semiautomatic firearm (count 3) is reversed. If, after the filing of the remittitur in the trial court, the People do not retry Taeotui on count 3 within the time limit set forth in section 1382, subdivision (a)(2), the trial court shall treat the remittitur as a modification of the judgment as to count 3 to reflect a conviction of assault with a firearm in violation of section 245, subdivision (a)(2), and resentence Taeotui accordingly. (See People v. Edwards (1985) 39 Cal.3d 107, 118; People v. Racy (2007) 148 Cal.App.4th 1327, 1336, 1338; People v. Woods (1992) 8 Cal.App.4th 1570, 1596.)
The trial court also shall modify Taeotui's sentence to strike the stayed section 186.22, subdivision (b)(1) enhancement. The court shall amend the abstract of judgment in accordance with our directions in this and the preceding paragraph, and forward an amended abstract of judgment to the Department of Rehabilitation and Corrections.
In all other respects, the judgment is affirmed.
WE CONCUR: McDONALD, Acting P. J., O'ROURKE, J.
Evidence Code 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."
A trial witness's deliberate forgetfulness may result in the admission of the statement notwithstanding the hearsay rule or the confrontation clause because the statement could be regarded as a prior inconsistent statement - an exception to the hearsay rule. (People v. Perez (2000) 82 Cal.App.4th 760, 764.)