Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-071303-2
McGuiness, P. J.
Marcell Thatcher (appellant) appeals from a judgment entered after a jury found him guilty of first degree murder on an aiding and abetting theory (Pen. Code, § 187 ). He contends the trial court: (1) committed Batson/Wheeler error in granting the prosecution’s peremptory challenge of an African-American juror; and (2) erred in admitting evidence of crimes committed by his accomplice Erik Smith against the victim’s family two days before the murder. We reject the contentions and affirm the judgment.
All statutory references are to the Penal Code unless otherwise stated.
Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
Factual and Procedural Background
On August 21, 2007, an information was filed charging appellant with one count of murder (§ 187, count 1). At a jury trial, Pittsburg Police Officer Ryan Wilkie testified he responded to Nation’s Giant Hamburger restaurant (Nation’s) at 8:33 p.m. on September 29, 2006, to investigate reported gunshots. A man who appeared “frantic” and “pale faced” and was “visibly shaking” identified himself as Nelson Salguero and said his friend had been shot. Salguero pointed to the Nation’s parking lot and said the friend was “near a white car.” Wilkie approached the white car, a Chevy Monte Carlo, and found a body, later identified as Luis Perez, slumped into the open driver’s door with his shirt soaked in blood. Wilkie saw five shotgun shell casings on the ground next to the car. Perez was pronounced dead at 8:45 p.m. A forensic pathologist testified that Perez died of wounds from two gunshots that were fired into his left upper abdomen and left lower chest from a distance of less than 10 feet. Two other bullet wounds were not fatal.
Perez’s sister Karla Perez (Karla) testified that on September 27, 2006, she was living with her husband, their two children, and Perez in Pittsburg. Perez had a daughter with Laura Banks, with whom he had been in a relationship for about six years. After Perez and Banks broke up, Banks married someone else but Perez and Banks continued to have contact regarding their daughter. Karla did not know Banks’s husband’s name but the parties stipulated that his name was Erik Smith. Banks would call or come over once in a while to drop their daughter off. Karla had seen Banks with two cars—a blue Honda Civic and a silver Chrysler Pacifica sports utility vehicle (SUV).
Because Luis Perez and Karla Perez share the last name, we refer to Karla Perez by her first name for purposes of clarity and ease of reference.
On the afternoon of September 29, 2006, Karla received a call on her cell phone from Banks, who sounded upset and said it was “important” for her to talk to Perez. When Perez returned home at about 4 p.m., Karla told him about Banks’s phone call. Perez called someone on his cell phone and Karla heard him talking and sounding upset. Perez left the house at about 7:45 p.m. and told Karla he was going to meet with his friend Nelson Salguero.
Salguero testified he met and shared a meal with Perez at Nation’s on the evening of September 29, 2006. After leaving Nation’s, Perez walked over to his car, a white Chevrolet, and Salguero went to his truck and waited for Perez because they were going to go out that night. After Salguero turned on the engine, he heard a “loud bang” “like a bomb.” He heard another three “bangs” and saw a man with a rifle shooting towards Perez’s car. The shooter was wearing a black sweatshirt with a hood over his head.
Gary Chabot testified he had walked out of the Silver Knight bar across the street from Nation’s when he heard four gunshots coming from Nation’s. Five to ten seconds later, he saw “a dark burgundy, root beer brown” Jeep Cherokee “flying out” of the Nation’s parking lot. Allen Hagerbaumer testified he had left the Silver Knight bar to walk his friend to her car when he heard gunshots. About five or ten seconds after he threw himself and his friend to the ground, he watched as an SUV, which he thought looked like a Nissan Pathfinder and “was a dark color—green or brown, ” “peeled out” and ran a red light. He thought the driver was an African American man with short hair.
Joy Wright was sitting in the passenger seat of her van waiting for her husband, who had gone into Nation’s, to return to the van. Her five little dogs were “kind of jumping around” in the van. While waiting for her husband, she saw a “boxy SUV-type car” driving backwards. The SUV came to a stop and the passenger got out and leaned into the SUV from the passenger side to talk to the driver in “an agitated fashion.” The driver then got out of the vehicle and walked around the rear of the SUV towards the passenger door. The two men “switched places, ” with the driver getting into the passenger seat and the passenger walking around to the driver’s side and getting into the driver’s seat. The new driver “sped as fast as you c[ould]” to quickly maneuver the SUV into a vacant parking space on the street. He appeared to be looking toward the door to Nation’s, putting his head up to peer when someone came out, then sitting down again when he was not interested in the person who came out. The driver then moved the SUV into the Nation’s parking lot and parked near a fenced-off area where a dumpster was located. The SUV’s occupants switched seats again.
The man who had driven the SUV to the dumpster then got out of the SUV, walked over to the front of a white car that was parked in the Nation’s parking lot, and moved around the car, appearing to look into it from every direction. The man walked back to the passenger side of the SUV, crouched down, then walked towards Nation’s out of Wright’s sight. Wright then saw two other men leave Nation’s. One of them walked towards the white car that had just been examined. The white car’s lights flashed and Wright assumed the owner of the white car had hit the remote. As the owner of the white car was about to open his door, the man who had been crouching approached with a gun and shot the owner of the white car four times. The shooter walked back to the parked SUV and stopped at the passenger side rear corner, then returned to the white car while still carrying the shotgun and looked into the front and back seats of the white car. He then walked back to the SUV’s passenger side and got in, and the SUV left the parking lot with squealing tires.
Wright described the shooter as “tall and thin, ” between 6’ and 6’2” or 6’3” tall, 180 pounds, with “some type of mustache and beard, ” and in his early 20’s. She thought he was “either... Hispanic or a black man [who] was real, real light” and “could have been... Middle Eastern, too.” The man was wearing a black sweatshirt with the hood up. Wright did not see the other man’s face but noticed he was wearing a plaid shirt and was “[s]horter and heavier, ” about 220 pounds, with “big hair” sticking out from under some kind of cap or covering. She thought the man “moved like a younger person” and appeared to be in his early 20’s. Pittsburg Police Sergeant Patrick Wentz described appellant as 6’2” in height and weighing 230 pounds with a date of birth of January 26, 1979. Appellant was “a couple of inches” shorter and darker complected than Erik Smith.
Several days after the shooting, Wright identified a silver Chrysler Pacifica that was seized from Banks’s and Smith’s residence as similar to the SUV that was involved in the shooting. She recognized a photograph of a red, blue, white, and gray plaid shirt that was found in appellant’s residence as the shirt the non-shooter was wearing. When asked to explain the discrepancy between this observation and her statement immediately after the shooting that the man was wearing a green, red and orange plaid shirt, she said she “always associates flannels [or plaid] with the color green.” Wright was unable to recognize anyone in two separate photo lineups, one of which included a photograph of Erik Smith, and one of which included a photograph of appellant. On November 15, 2006, Wright attended a live lineup that included Erik Smith. Wright focused on numbers one and six, with Smith being in position six. She said the person in position one had more facial hair than the shooter and that “it couldn’t be number six because of his eyes.”
Erik Smith was contacted during the early morning hours of September 30, 2006. He was approximately 6’3” to 6’4” tall, 210 pounds, light skinned, “[a]ppeared to be a mixed-race male, possibly Pacific Islander and black male, ” with shoulder length hair and a thin line beard and mustache. He was wearing a black hooded sweatshirt. At the police department after his arrest, he appeared to be trying to hide his sweatshirt while he was out of sight in a bathroom stall. Police seized a silver Chrysler Pacifica and a blue Honda Civic from Banks’s and Smith’s residence. Four unexpended 12 gauge shotgun shells were found in the Honda and gunshot residue was found in the Chrysler. Two of Smith’s fingerprints were found on the Chrysler and one fingerprint of a man named Barney King was found on the Honda. Smith’s cell phone records showed hits at cell towers starting in San Francisco at 6:40 p.m. on September 29, 2006, coming across the Bay Bridge into Pittsburg, then back to San Francisco. The cell phone was turned off during the time of the murder, between 8 p.m. and 8:48 p.m.
Police contacted appellant at his residence approximately one month after the shooting. Police Inspector John Conaty interviewed appellant. Appellant told Conaty that Smith came over to his house in San Francisco on the night of the shooting, then left without him. After Conaty said, “You know it’s probably hard because he’s a friend, ” and, “your grandma didn’t raise you to be involved in this kind of stuff, ” appellant began to cry. Appellant told Conaty that Smith had asked him to come along that night, stating, “I just need you [to do] something for me.” Appellant did not have a valid driver’s license but Smith allowed him to drive. Appellant said he did not know of any animosity between Perez and Smith and was unaware of Smith’s intentions. While in the SUV, appellant heard seven “little” “fire cracker” type sounds. He then saw Smith get back in the car and toss a gun into the back seat. While dropping appellant off at his house, Smith said, “Just, you know, don’t tell nobody.”
After a hearing was held under Evidence Code section 402 [the question of the admissibility of a confession or admission of the defendant shall be heard and determined out of the presence and hearing of the jury], the trial court ruled that appellant’s statements were made after proper warnings and waiver under Miranda v. Arizona (1966) 384 U.S. 436. An edited DVD of appellant’s statements was played for the jury and a transcript was given to each juror.
Appellant testified against the advice of his attorney. He testified that neither he nor Smith were present in Pittsburg on September 29, 2006, and that whatever admissions he made were the product of his fear that he would get electric shocks. He explained that he cried during the interview because the police used a “simple pad” on his seat and shocked him with electricity, which caused him pain. Appellant acknowledged that since being in custody awaiting trial, he had received numerous letters and money from Kay Dorsey, who is Smith’s mother. He testified that at one point, he had over $1,000 credit in his commissary account. Dorsey’s letter contained references to snitches and a “rain jacket” and a comment that appellant needed to “watch [his] back.” Appellant denied knowing what the word “snitch” meant and denied that “rain jacket” had anything to do with a “snitch jacket.” Dorsey wrote, “I will not be happy till both of you” and “[y]ou plus my son are home.” Appellant denied that anything in the letters were intended or interpreted to be threatening. Dorsey was present in the courtroom during appellant’s testimony.
The jury found appellant guilty of first degree murder. Appellant filed a motion for a new trial, which the trial court denied. The trial court sentenced appellant to 25 years to life in state prison.
Discussion
1. Batson/Wheeler Error
a. Background
The prosecutor in this case exercised four peremptory challenges to excuse African American prospective jurors Ms. S., Mr. A., Ms. B, and Ms. C. Appellant made Batson/Wheeler motions after challenges were made against Mr. A., Ms. B., and Ms. C. The trial court denied the motions. On appeal, appellant contends the trial court erred in denying his motion as to Ms. C., against whom the prosecutor exercised her first alternate peremptory challenge.
We will briefly summarize the facts relating to the other three African American prospective jurors who were excused, as appellant’s argument includes a comparison between Ms. C. and the three other prospective jurors.
(1) Ms. S.
Ms. S. lived in Pittsburg and was a registered nurse. Her husband was a car dealer and her son worked in theater. Two other sons lived and worked out of state. She was a juror on another criminal case in which the jury did not reach a verdict. Her cousin’s son was killed in Bay Point and the police treated the family “okay” in connection with that incident. She had been harassed by a sheriff on two occasions but denied that either event affected her ability to be fair. Her oldest son was arrested in Alameda County for driving under the influence and was treated fairly. Her house had been burglarized and the police took fingerprint evidence but “[n]othing” happened with the case.
(2) Mr. A.
Mr. A. lived in Antioch and worked as a “splicing tech.” His significant other was an optical technician. He was previously on a jury in a civil case in which a verdict was reached. When his house was burglarized, his cars were broken into, and he was the victim of hit and runs, “the police were okay. They couldn’t do anything about it, but they were fine.” Mr. A. was mistakenly arrested for assault with a deadly weapon without the intent to kill. The police came to his workplace and “kind of told me how I did it, when I did it, what my thoughts were and everything, ” essentially “convict[ing] me before anything happened.” He was taken to a small room at the jail and handcuffed to a chair for six to seven hours before the victim exonerated him by saying, “that’s not the guy.” When he was in his 20’s, Mr. A. was frequently stopped by police for mistaken identity or for being in a certain area. The police were “looking for a certain person, and they always thought it was me, ” even though “it wasn’t.” Some of Mr. A.’s family members had been arrested for “domestic disputes, maybe drug charges, things of that nature.” A cousin “did 15 years” after “he caught his wife with somebody else and he went to deal with” “the cheater” by shooting him a few times without killing him. Mr. A. had “no idea” how his cousin was treated by law enforcement. He did not know the cousin well at the time but later became close to him. Mr. A.’s father was a reserve police officer.
The trial court found a prima facie showing had been made as to Mr. A because he was the only African American man on the panel and the prosecutor had already excused Ms. S. It found, however, that a race neutral showing had been made, stating, “And it’s not so much the being pulled over in the 20s, but very serious incidents that occurred to [Mr. A.] where he was arrested and then chained to a chair for six to seven hours on the mistaken belief that he was assaulting someone with a firearm and also his close friendship with a cousin who was convicted of shooting but not killing the paramour of his spouse.”
(3) Ms. B.
Ms. B. was a high school history teacher in Concord. She said she “know[s] Nations” and “remember[s] the incident” and did not feel comfortable being a juror in a case that occurred in the “very small town” of Pittsburg in which she had lived “all [her] life.” She knew “everybody” and knew “too much” about the city and the police department and was “a little” fearful of retaliation. She said she would not want a juror with her frame of mind on the jury. She disliked one of the officers who may be involved in appellant’s case and did not think she could treat him fairly. Ms. B.’s father worked for the Pittsburg Police Department and her uncle was a commander on the same force. Her cousins and her partner had been charged with driving under the influence (DUI). One cousin was charged with forgery in Alameda County.
The trial court denied appellant’s Batson/Wheeler motion as to Ms. B, finding, “[j]ust by virtue of the sheer numbers” of African American jurors who had been excused or remained on the jury panel, that a prima facie case had been established. It continued, “But I will find that [the prosecutor] has given a sufficient race neutral reason for excusing [Ms. B], particularly about her personal safety and her concern that she might be retaliated against if she serves on the jury, and also her negative experience with an officer who... might well be testifying.”
(4) Ms. C.
Ms. C. was a long time Pittsburg resident. She did not have a problem being a juror in a case that occurred in Pittsburg and thought she could be fair. When someone broke into her car and stole her laptop, she “didn’t think that was a crime. You know, just figured it was a theft. No big deal.” She reported the incident and the police “were fine.” They found her bag and some other items and returned them to her. She had “different family members” including her brother, cousins and uncles, who had “gone to jail for different reasons.” Her brother had been “in and out of jail for the majority for his adult life for—generally, theft, some drug use. Things like that.” Her brother had gone to trial, and his last offense was in Contra Costa County. She felt her brother was treated fairly by the police and prosecutor. When asked whether any relatives had been charged with a serious offense, Ms. C. said that her cousin went to trial and was convicted of murder in Louisiana 25 years ago. She came from a very large family in which her father was one of 16 children. She said, “So if you can do the trickle-down effect, we’ve probably had... some sort of history of being in and out of jail or has been arrested.” She said she could think of five or six cousins who were arrested “mostly for drug use, maybe some theft, maybe public intoxication.” She had an uncle who had been convicted of a drug charge and an ex-boyfriend who had been arrested for assault on someone else. When asked whether she had any negative experiences with law enforcement, she said, “No.” She then said, “I laugh just because I was thinking about it. I’ve had so many speeding tickets, it’s unreal. And, I mean, I was always speeding. So I can’t complain....”
At the hearing on appellant’s Batson/Wheeler motion as to Ms. C., the trial court stated, “Okay. And before you say anything, [prosecutor], I want to mention that I’m somewhat concerned in that the other jurors who were African American who were excused I felt had—that the grounds for your challenges were very clearly nonracial because they had—for the most part, had had very negative personal experiences with officers.” The court continued, “And I’m not sure I remember [Ms. C] describing any negative experiences with her personally, and I’m concerned if it’s about her relatives that I would have to do a comparative analysis of the other jurors and see whether or not—any of the other jurors you did not excuse who also had family members who had had troubles....”
The prosecutor responded there was “no requirement that the individuals themselves have had negative experiences” and that it was “appropriate to exercise a peremptory if a juror has a number of relatives [who] have been convicted of offenses.” She stated, “[I]n this case, she has a cousin [who] was convicted of murder, she has had numerous cousins [who] have been convicted and arrested for criminal offenses, specifically drugs and thefts, she had an uncle [who] was also arrested for drug possession, she has a brother in jail [who] has been in and out relating to theft and drug use and has also gone to trial, she has had [an] ex-boyfriend [who] was arrested for assault... [¶]... She has a long history of family that has been involved in the criminal justice system and has either been prosecuted or arrested by law enforcement.” The prosecutor also noted that two African American women remained on the panel.
The parties discussed whether a comparative analysis should be conducted to determine whether any non-African American jurors who remained on the panel also had relatives who were convicted of offenses. After a break during which the parties reviewed their notes, the prosecutor stated that none of the jurors “had the extensive record that [Ms. C’s] family had.” Eight jurors had no criminal history and no friends or relatives with any criminal history. One juror had a DUI conviction, another juror had a DUI conviction “30 year ago, ” a third juror “had a DUI for a brother and a roommate, ” and a fourth juror had a friend who was charged with assault after being involved in a “bar fight.” The prosecutor noted “this [was] a murder case” and that Ms. C. had a cousin who was “convicted in Louisiana of murder, although it was 25 years ago.” Ms. C. also had “multiple family members and cousins and relatives and a brother [who] had also been prosecuted in this county.”
Noting that Ms. C. said her father had 16 brothers and sisters, defense counsel stated, “so I think we’re talking about a very large, extended family.” Counsel’s impression of Ms. C. was that she was “sincere, interested and truthful.” Counsel said that when asked about her brother, Ms. C. thought his problems were “all his own doing and that he was treated fairly by both the police and the prosecution. [¶]... [S]he did not indicate or even hint at the slightest bias against the defendant, specifically against her brother. She felt he got what he deserved.” The prosecutor responded, “What I’m concerned about... is even though someone says that they’re fair, this is a murder case. What I’m concerned about is that she may have some type of sympathy for the individual in this case. She has had numerous family members that have been in the defendant’s position that have taken cases to trial. And I’m concerned about any kind of deep-seated bias that she might have. And even though she may say, I can be fair and impartial, when someone has that many relatives who have had that many negative experiences with the criminal justice system, the courts have held that the use of peremptories is appropriate. [¶] I am concerned she may sympathize with Mr. Thatcher in this case, that she may sympathize with him because she has had family members in similar types of positions and may give his testimony, should he choose to testify, more weight.”
The trial court denied the Batson/Wheeler motion, noting that two African American women remained on the panel, including one who was placed on the panel after the prosecutor exercised one of her challenges, most likely knowing that an African American juror would be seated. The court stated, “The only people on the panel... who had offenses were (Juror No. 1/75), who had his personal DUI, (Juror No. 5/138), who had his friends who had a DUI and a bar fight, (Juror No. 6/12), whose brother and roommate were arrested for DUI, and (Juror No. 9/95), who had a personal DUI 30 years ago.” The court found the prosecutor “ha[d] outlined nonracial reasons for excluding [Ms. C.], which are her concern about the sympathy given [Ms. C.’s] family members being in more serious trouble than DUIs, particularly the cousin who was convicted of murder many years ago, the brother being in and out of jail, and her—although this is not as serious, the ex-boyfriend because his assault charge was dropped, but the other family members, including the uncle, who have repeated troubles with the law. [¶] So I will find that [the prosecutor] has stated a race neutral reason for excusing [Ms. C.] and that her reasons are genuine.”
c. Discussion
Under California law, both the prosecution and defense are entitled to 20 peremptory challenges of prospective jurors in the trial of an offense that is punishable by death or life imprisonment, and 10 peremptory challenges in all other felony trials. (Code Civ. Proc., § 231.) While peremptory challenges are intended to allow parties to reject a certain number of jurors for any reason at all, both the state and federal Constitutions prohibit the use of peremptory challenges to exclude prospective jurors on the basis of race or ethnicity. (Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276-277.)
A Batson/Wheeler motion initiates a three-step process. First, the party raising the motion must make a prima facie case by establishing that the excluded person is a member of a cognizable group and that there is a “strong likelihood, ” “from all the circumstances of the case, ” that the person is “being challenged because of [his or her] group association....” (Wheeler, supra, 22 Cal.3d at p. 280.) Second, once a prima facie case has been found, “the ‘burden shifts to the [striking party] to explain adequately the racial exclusion’ by offering permissible race-neutral justifications for the strikes.” (Johnson v. California (2005) 545 U.S. 162, 168.) In this step, we “rely on the good judgment of the trial courts to distinguish bona fide reasons for such peremptories from sham excuses belatedly contrived to avoid admitting acts of group discrimination.” (Wheeler, supra, 22 Cal.3d at p. 282.) Third, once a race-neutral justification is tendered, the defendant “ultimately carries the ‘burden of persuasion’ to ‘ “prove the existence of purposeful discrimination.” ’ ” (Johnson v. California, supra, 545 U.S. at pp. 170-171.) We review a trial court’s rulings on a Batson/Wheeler motion “deferentially, considering only whether substantial evidence supports its conclusions.” (People v. Bonilla (2007) 41 Cal.4th 313, 341.)
Here, Ms. C. had an extensive list of relatives or friends with a criminal history, including a brother who was “in and out of jail for the majority of his adult life, ” a cousin who was convicted of murder, five or six cousins who had been arrested “mostly for drug use, maybe some theft, maybe public intoxication, ” an uncle who had been convicted of a drug charge, and an ex-boyfriend who had been arrested for assault on someone else. In contrast, of all of the non-African American prospective jurors who remained on the panel, eight had no relatives or friends with any criminal history. Two had DUI convictions, one had a brother and a roommate with a DUI conviction, and one had “friends who had a DUI and a bar fight.” The experiences of the four prospective jurors—who had had some contact with the criminal justice system, personally or through a relative or a friend—were much more limited than those of Ms. C.
Appellant asserts the prosecutor’s explanation that Ms. C. might have a “ ‘deep seated bias’ ” was “completely hypothetical” and “speculative, ” in contrast to “the very specific experiences upon which the earlier peremptory challenges of three black jurors rested.” He points out that the three other prospective jurors “cited personal experiences with police officers or facts interwoven with the case at hand. Ms. C., on the other hand, was excluded for asserted reasons which were no more than hunches resting on a stereotype.” It is settled, however, that an encounter with the criminal justice system, experienced by the prospective juror or by a relative or friend, is a valid reason for the prosecutor to exercise a peremptory challenge against that juror. (See e.g., People v. Gray (2005) 37 Cal.4th 168, 192 [no prima facie showing of group bias where the prosecutor “may well have exercised a peremptory challenge against [the juror] because she reported that someone close to her had been arrested and sent to jail for stealing a car”]; People v. Panah (2005) 35 Cal.4th 395, 442 [“the arrest of a prospective juror or a close relative is a gender-neutral reason for exclusion”].) Although appellant emphasizes that Ms. C. did not express any negative feelings towards law enforcement and felt her brother who was “in and out of jail for the majority of his adult life” had been treated fairly, the prosecutor had a well-based concern that Ms. C.’s close relationship to so many people who were involved in the criminal justice system could cause her to have “some type of sympathy” for appellant. (See People v. Farnam (2002) 28 Cal.4th 107, 138 [“Although [the prospective juror who had visited his nephew in prison] claimed that the experience would have no impact on him as a juror, a prosecutor may reasonably surmise that a close relative’s adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution”].) The trial court properly found that the prosecutor’s reasons for exercising a peremptory challenge against Ms. C. were race neutral and genuine.
2. Evidence of Smith’s Crimes
Appellant contends the trial court abused its discretion—and therefore denied his right to due process and a fair trial—in admitting evidence of crimes Smith committed against the Perez family two days before the murder. We reject the contention.
a. Background
The prosecutor filed a pretrial motion seeking to use evidence of crimes, including arson, committed by Smith at the Perez family home two days before Perez was shot. The prosecutor argued the evidence was admissible to prove Smith’s identity as the shooter at Nation’s and his preexisting intent to harm Perez. The prosecutor stated in her written motion: “The issue in this case is whether Marcell Thatcher aided and abetted Erik Smith in the premeditated murder of Luis Perez. The fact that two days earlier Erik Smith admitted that he was angry with Luis Perez, fire bombed a car, left a bomb at another home, shot off a shotgun and then admitted that he was angry with him is highly relevant and the probative value far outweighs [any] prejudice.” At a pretrial hearing, the prosecutor made an offer of proof that Banks married Smith “within months” of breaking up with Perez, then “cheated” on Smith by continuing her relationship with Perez. When Banks told Smith about her continued relationship with Perez, Smith became “furious” at Perez. The prosecutor argued that the method of operation was the same for the crimes in that Smith used a “get-away driver” and there was “a common scheme, a common plan, which shows evidence of conspiracy, which shows premeditation and motive for killing.”
Citing Evidence Code section 352, defense counsel argued the evidence was more prejudicial than probative. He argued the evidence on motive and premeditation would be cumulative and that the arson evidence at most showed an attempt to send a message to Perez and did not conclusively show premeditation. He argued there was a potential for prejudice and confusion because the jury could mistakenly believe that appellant was connected to the arson. He argued that the length of time needed to present the evidence would likely obscure the actual issues in dispute in appellant’s case.
The trial court granted the prosecutor’s motion, stating, “There is no question that the arson two days before, given its proximity in time and given that it involves... the same victim, is relevant with the premeditation, intent and conspiracy. The question is, is it unduly prejudicial or would it confuse the issues or mislead the jury or take up too much time. [¶] I will find none of those things are true, that the probative value far outweighs the prejudicial effect given that it is a critical element of the People’s case. I don’t think the jury will be unduly confused. We can have limiting instructions, and I’ll work with the attorneys on how they want to do that, as to what the effect should be—or how the evidence should be construed by the jury. I don’t think it will unduly consume time, and so I will let it in.”
At trial, Pittsburg Police Officer Charles Blazer testified that in the mid-afternoon of September 27, 2006, he responded to a home on Nautilus Place in Pittsburg on a report of a vehicle fire and possible gunshots. A gold Lexus parked in front of the home was engulfed in flames and there was a “fire device” with a burnt wick on the porch of the home next door. Two other cars further down the block had some damage from buckshot. A fire expert testified that the fire device contained gasoline. He opined the Lexus was intentionally set on fire with ignitable liquid. He based this opinion on an examination of the vehicle and on the fact a Black male had been seen running up to the car right before the car caught on fire.
Francisco Flores, Karla’s husband and Perez’s brother-in-law, testified that he lives at Nautilus Place in Pittsburg. On September 27, 2006, he answered his door when a neighbor knocked and told him Flores’s car was on fire. Perez was not home at the time but had previously driven the car.
A neighbor, Denise Martines, testified she was driving home at 2:30 p.m. on September 27, 2006, when she saw two men inside a small blue car. After she went inside her house, the men got out of the car. The passenger walked across the street and into a driveway near the Perez family’s home. When she looked again, the man was heading into the gate of the home next door to the Perez family’s home. She described this man to police as a dark complected Black male wearing a light or gray colored short sleeve shirt, in his 30s, around 5’10” or 5’11” and 160 pounds. The other man was light skinned, “probably black, ” and of the same age and height, about 180 pounds, and wearing shorts and a black sweatshirt with the hood up. At trial, Martines reversed the weight of the two men, stating the passenger was 180 pounds and the man in the hooded sweatshirt was 160 pounds. Martines did not see either man’s face and was unable to recognize them.
Diema Ellingberg, another neighbor, testified she came home at about 2:20 p.m. and noticed a silver or blue Honda parked across the street. Two men got out of the Honda and headed across the street. After Ellingberg went inside her home she saw the passenger “head[ing] towards” the Perez family’s home and the driver walking towards the house next door to the Perez family’s home. While using the bathroom, she heard a “very loud” “boom, bang.” She looked out the window and saw the Lexus on fire and noticed the Honda was gone. She went outside and noticed that windows on two of her cars had been damaged. She testified the passenger was Black or Hispanic man, 6’ to 6’3” tall and 190 to 200 pounds with long, wavy hair. She described the driver as shorter and stockier, about 5’6” tall. She identified a photograph that depicted a “similar” blue Honda. She was shown photo lineups, which included Smith and appellant’s photographs, and did not identify either man. The prosecution presented Smith’s cell phone records from September 27, 2006, to show that his phone had taken hits off a cell site in Pittsburg at 2:03 p.m. and 2:16 p.m., off a cell site in Pacheco at 2:42 p.m., and a off a cell cite in Martinez at 2:49 p.m.
During a conference regarding jury instructions, the prosecutor requested to use CALCRIM No. 375, “common plan, ” as part of the “other crimes” instruction. She stated she wished to advise the jury that it was permitted to conclude that Smith’s crimes had a “common” thread, i.e., that because Smith had used a second person in the arson crimes who facilitated commission of those crimes, he was also likely to have used a knowing participant in the homicide. She argued the evidence was “relevant as to whether or not the defendant intended to aid and abet Erik Smith. And if Erik Smith had a plan to enlist somebody and fill them in on what’s going on to help him, clearly I can argue this arson and Erik Smith as part of this plan would have told Marcell Thatcher on September 29, 2006... [¶]... [¶]... Erik Smith... enlisted somebody to assist him in attacking the victim. I can argue in this case that Erik Smith did exactly the same thing. He enlisted Marcell Thatcher to aid and abet him in the murder of Luis Perez.” Defense counsel argued the reasoning was flawed because Smith’s method of operation with an unknown second participant was not relevant to appellant’s intent, there could be no common plan in the absence of proof of appellant’s participation, and the prosecutor was conflating the two criminal events.
The trial court instructed the jury with CALCRIM No. 375 that the People had presented evidence that Smith committed arson on September 27, 2006, and that the jury could consider the evidence only if the People had proved by a preponderance of the evidence that Smith committed the arson. The court further instructed, “If you decide that Erik Smith committed the arson, you may, but are not required to, consider that evidence for the limited purpose of proof of deciding whether or not: A, identity, Erik Smith was the person who committed the offense alleged in this case; B, intent, Erik Smith acted with [the] intent to kill Luis Perez or with the intent to assault him with a firearm; C, motive, Erik Smith had a motive to commit the offense alleged in this case or to assault Luis Perez with a firearm; D, common plan, Erik Smith had a common plan or scheme to murder Luis Perez or to assault him with a firearm; or E, other purpose, Erik Smith acted with the requisite deliberation and premeditation to kill Luis Perez. [¶] In evaluating this evidence, consider the similarity or lack of similarity between the uncharged offense and the charged offense. Don’t consider this evidence for any other purpose. [¶] If you conclude that Erik Smith committed the arson, that conclusion is only one factor to consider along with all of the other evidence. It is not sufficient by itself to prove that Erik Smith murdered Luis Perez. The People must still prove each element of the charge beyond a reasonable doubt.”
During closing argument, the prosecutor stated, “And so what do we look at, ladies and gentleman? What do we look at to determine whether or not some[one] is aiding and abetting? We look at the manner of the killing. How did the killing go down? We look at the actions of Mr. Thatcher in this case. We look at the prior actions towards this victim. How are previous attacks implemented? [¶] How [were] previous attacks [against Luis Perez] implemented?... [¶]... Were there two individuals or was it just a solo act? Was there any planning or premeditation when you go in after someone in the previous acts? Because the law says, you can consider that. If there was previous prearming, preplanned attacks on this victim, you can consider whether or not that perpetrator in that earlier incident who used an aider and abettor did the same thing in this case.” The prosecutor stated Smith “took a second individual” to commit the other crimes and used “the same manner, same means and same method” to commit murder. She urged that each man had a role in the earlier crimes and that the aider and abettor in each instance “knew what [Smith] was going to do.”
b. Discussion
Evidence of a person’s character, including evidence of past misconduct, is not admissible when offered to prove the person’s conduct on a particular occasion. (Evid. Code, § 1101, subd. (a).) However, evidence that a person committed “a crime, civil wrong, or other act, ” is admissible to show “motive, opportunity, intent, preparation, plan, ” or “to support or attack” a witness’s credibility. (Id., subds. (b), (c).) The admissibility of evidence of other crimes depends on “the materiality of the facts sought to be proved, ” “the tendency of the uncharged crimes to prove those facts, ” and “the existence of any rule or policy requiring exclusion of the evidence.” (People v. Carpenter (1997) 15 Cal.4th 312, 378-379, superseded by statute on other grounds as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) Admission of evidence under Evidence Code section 1101, subdivision (b), lies within the trial court’s discretion. (People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1609.)
“To prove that [a] defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] [and] [¶] 4. The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.” (CALCRIM No. 401.) Here, evidence of the arson crimes was highly relevant to prove the first element of the charged offense, i.e., that Smith committed premeditated murder. Evidence that Smith fire bombed and shot at the Perez family’s home just two days before Perez was shot had significant probative value to prove Smith’s identity as well as his motive and intent in committing murder. The arson incident was also compelling evidence of Smith’s common plan of using a gun and employing a getaway driver to ensure he would escape.
Appellant asserts the evidence should have been excluded because “proof of Smith’s guilt as the premeditated killer of Perez was absolutely indisputable and overwhelming.” However, appellant testified at trial that Smith was not at the murder scene; thus, Smith’s identity as the shooter was directly in dispute. Further, unlike some of the other evidence that was presented to show Smith was the shooter—e.g., the transcript from appellant’s police interview and eyewitness testimony—evidence of the arson crimes was key in proving the shooting was premeditated. (See, e.g., People v. San Nicolas (2004) 34 Cal.4th 614, 668 [evidence of a defendant’s prior threats against the decedent was properly admitted to show the defendant’s motive and state of mind].)
Appellant also claims the evidence likely confused the issues and misled the jury because it “changed the focal point of the trial from an analysis of appellant’s intent, based upon a minimal amount of evidence, to a wallowing in the overwhelming evidence of Smith’s general criminality regarding society and Luis Perez.” We disagree. Evidence of the arson crimes was admitted to show Smith’s—not appellant’s—identity, intent, motive, common plan, and premeditation, and the trial court so instructed the jury with CALCRIM No. 375. The trial court also instructed the jury that the evidence was not be considered for “any other purpose” and that the People “must still prove each element of the charge beyond a reasonable doubt.” Thus, contrary to what appellant suggests, there was no danger the jury would mistakenly “transfer[]” whatever intent Smith or his accomplice had in committing the arson crimes onto appellant. The trial court did not abuse its discretion in admitting the evidence and did not violate appellant’s right to due process and a fair trial in doing so.
Disposition
The judgment is affirmed.
We concur: Siggins, J., Jenkins, J.