Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 5-040791-6
Bruiniers, J.
Kimiko Kimio Wilson was accused of shooting three people at close range as they sat in a car or attempted to escape, killing two and severely injuring the third. He was convicted of two counts of first degree murder and one count of attempted murder, with a multiple murder special circumstance allegation found to be true. He challenges his sentence of life imprisonment without the possibility of parole on the grounds of instructional error, prejudicial admission of bad character evidence, and failure of the trial court to inquire into possible juror misconduct. We affirm.
Background
On May 11, 2004, Kimiko Kimio Wilson was indicted for the June 16, 2003, murders of Uchenna Noukwe Okeigwe and Erica Young (Pen. Code, § 187; counts 1-2) and attempted murder of Sheianna Keanne Babcock (§§ 187, subd. (a), 664, subd. (a); count 3). As to each count, it was alleged that he personally used and intentionally discharged a firearm in the commission of the offenses, causing great bodily injury and death. (§ 12022.53, subds. (b)-(d).) As to counts 1 and 2, a multiple murder special circumstance was alleged. (§ 190.2, subd. (a)(3).) On December 10, 2004, the district attorney filed a notice that the People did not intend to seek the death penalty in Wilson’s case.
All further statutory references are to the Penal Code unless otherwise indicated.
Trial began April 25, 2007, and continued for 16 days of testimony. Wilson testified in his own defense. After five days of deliberations, the jury found Wilson guilty on both counts of first degree murder and of willful, deliberate and premeditated attempted murder, and it found the special circumstance allegation true. The jury was unable to reach a verdict on the personal use and intentional discharge allegations. The court sentenced Wilson to life without the possibility of parole on the murder convictions, with sentence on the second count stayed pursuant to section 654, and to a concurrent sentence of life with the possibility of parole on the attempted murder conviction.
Because Wilson challenges the sufficiency of the evidence to support the verdicts, we review the evidence presented at trial in some detail.
Crime Scene
On June 16, 2003 at about 8:39 p.m., DeForrest Thompson placed a 911 call to the police reporting a shooting at Triangle Court in Richmond, California. He reported that two people had been shot, one inside and one outside a black Chevrolet parked in the parking lot. He described a lone perpetrator as young, Black, and six feet tall, and said he ran toward tracks that lead to North Richmond.
Wilson, who is Black, was 18 years old at the time and six feet three or four inches tall.
Richmond Police Officer Michael Rood arrived at the crime scene at about 8:42 p.m. He observed a Black man later identified as Uchenna Okeigwe in the driver’s seat of a black Chevrolet Caprice Classic with a gunshot wound to the head. The driver’s door was closed and its window was partially open. An autopsy later disclosed that Okeigwe had two gunshot entry wounds to the left forehead, and a gunshot entry wound behind the left ear. There was gunpowder stippling near the head wounds, which indicated the bullets were fired from between 6 and 18 inches away. The stippling covered an inch to an inch and one-half of area, which indicates it was in the closer end of the distance range. Okeigwe had $134.94 in currency and change loose in his pants pocket. No money or drugs were found in the Caprice, but small plastic Ziploc bags of the type often used to package drugs were hidden between the rear passenger-side seat back and the seat cushion. The keys to the Caprice were found on the floor of the car.
A woman later identified as Erica Young was slumped over in the back seat of the vehicle with gunshot wounds to her back and head. The rear driver-side door was closed and its window was shattered. Autopsy reports later disclosed that a bullet entered Young’s head below her left ear and jaw and exited her through her right chin. A second bullet entered her left lower back and exited the top rear portion of her head. The trajectory was consistent with being shot by someone standing outside the left passenger window while she was stretched across the rear seat of the car.
A woman later identified as Sheianna Babcock was lying on the asphalt about 30 feet to the right (i.e., passenger’s side) of the vehicle, bleeding profusely from her head. The front passenger-side door was open. Babcock, who was still alive, was airlifted to John Muir Hospital in critical condition.
Eight bullet casings were found at the crime scene, three on the driver’s side of the Caprice, three to the rear of the Caprice, and two near the place where Babcock was lying. Forensic evidence established that all of the casings were fired from the same.45-caliber semiautomatic pistol.
Initial Investigation
Thompson testified that he saw the Caprice drive up slowly at about 8:30 p.m. About 15 minutes later, while he was in his truck in the parking lot, he heard gunshots coming from the direction of the Caprice. He looked in his rear- and side-view mirrors and saw a young woman on the right side of the car, who was running and being chased by a man who had come from the front of the car. No one else was in the area. The woman slipped and fell. The man stood over her as she lay on her back looking up at him with her hands extended outward, yelling something like, “I didn’t do anything.” The man shot her, then ran northeast through a shortcut to North Richmond.
That night, Thompson described the suspect to the investigating officers as a Black male about 25 years old, six feet tall, 180 pounds. At trial, he similarly testified that the man was about six feet tall, skinny (about 180 pounds, not 230 pounds), and 20 to 25 years old, not 18 years old. Because Thompson’s truck was elevated, his estimate of the man’s height might have been distorted. Thompson testified that Wilson could have been the man he saw that night.
Later that night or early on June 17, 2003, detectives went to Okeigwe’s residence and told Okeigwe’s older brother, Emecca, that Okeigwe had been killed. Emecca called Imoudu (Imo) Momoh, a friend of his and Okeigwe’s, to share the news. Momoh then came to Emecca’s house and showed Emecca an incoming phone number from a call the previous night listed on his cellphone, which he thought might have been from Okeigwe. Emecca recognized the originating number as Wilson’s and told the investigating officers about the call. They both knew Wilson as a friend and fellow student of Okeigwe at Diablo Valley College. Emecca told police the number belonged to “Kimiko,” possibly “Kimiko Robertson” or “Roberts.” Emecca was certain about Kimiko’s first name, but not about his last name. Richmond Homicide Detective Mitchell Peixoto testified that Emecca told police that if Okeigwe went to Richmond, he was going to see “Kimiko Robinson.”
Momoh testified that Okeigwe had called him at around 4:00 p.m. on June 16 to ask if he wanted to go to Richmond. Momoh declined. At about 7:00 p.m., Okeigwe called Momoh again from a number Momoh did not recognize. “He was in Concord. Asked me what I was doing. I said I was home. And I told him to give me a call back in about an hour.” There was a call from Babcock’s telephone to Momoh at 7:14 p.m. About one or two hours later, Momoh received a call that he did not answer because he did not recognize the incoming phone number. Okeigwe often called him from various phone numbers.
Sheianna Babcock
On June 18, 2003, John Muir Medical Center notified Peixoto that Babcock was able to communicate. Babcock’s head was screwed into a “halo,” which immobilized her upper body. She had two tubes down her throat and could not speak. Peixoto asked her “yes or no” questions and had Babcock respond by blinking once for no and twice for yes. Using this method, Babcock indicated that she knew who had shot her and knew his name, that the shooter had been in the car with her before he started shooting, and that he was a Black male. Babcock indicated the shooter’s name was “Kimiko.” She twice confirmed that “Kimiko” shot her. Babcock also indicated that she knew where “Kimiko” lived, and that he lived in North Richmond.
Peixoto went to a police station and ran the names Kimiko Robinson and Kimiko Robertson on a computer database with no success. He then ran the name “Kimiko” alone and the computer returned the name Kimiko Wilson. The police obtained a picture of Wilson and determined “the description and location of where he lived... seemed to match.” Using a computer program, police put together a photographic lineup with persons who had similar characteristics, and Peixoto returned to John Muir on June 18, 2003, to interview Babcock again. When shown the lineup, she identified Wilson as the shooter. Peixoto had her confirm her answer twice. He then showed her a single photograph of Wilson and she twice confirmed that he was the shooter.
Later the same day, Peixoto was informed that one of the tubes had been taken out of Babcock’s mouth and that she could communicate on a limited basis. When he arrived at her bedside, she appeared more alert, but also fearful. He showed her the photographic lineup but she did not focus on it and was looking away. She said, “I don’t know,” and something like, “[They] all look the same.” Peixoto tried to “shock her back into reality” and asked her, “You’re gonna let this guy get away with this?” He told her, “You don’t need to be scared of picking the wrong person because you actually know the person.” “You told me the name, and we spelled it out, and we talked about it. And then I asked you a name, and you said yes.” She again said that she did not know who had shot her. Peixoto testified that when she was shown the single photograph of Wilson, she shifted to a fetal position and her heart rate climbed from 70 to 106. Detective Peixoto believed that she was “in fear of her life and fear for some kind of retaliation.”
At trial, Babcock testified that she could not remember the John Muir interviews. She remembered the day of the incident and some of what occurred at Triangle Court. Earlier in the day, she was with Young, her first cousin, in Babcock’s home in Concord. Okeigwe called and asked Babcock to do his hair. Babcock did beautician work in her home, and had done Okeigwe’s hair before. After she did his hair, Okeigwe asked Babcock and Young to ride with him to Richmond. He said he was going to drive there and come right back, and they agreed.
Babcock and Young went to Richmond with Okeigwe in his black Chevrolet Caprice. Okeigwe drove. Babcock sat in the front passenger seat. Young sat in the rear driver-side seat. During the drive, Okeigwe was on the phone several times, and it appeared to Babcock that he was talking to the person he planned to meet. However, she had no memory of conversations in the car as they drove to Richmond, of Okeigwe stopping and picking someone up, or of where they went in Richmond.
At some point, Okeigwe’s car was stopped in the area of other parked cars. Okeigwe, Babcock and Young were in the car. She had no memory of a man being in the back seat of the car. She remembered hearing shots as she was getting out of the car. Then she remembered being on the ground and looking up at the person who shot her, who was standing right over her. She had no memory of how or why she fell. “I just remember laying on the ground, holding my hands up, looking in his face. And at one particular point... I cried out to God and asked him to have mercy on me because I wasn’t ready yet.” It was dusk and she got a clear look at the person’s face and had a clear image of the person in her mind. It was Wilson. She had no doubt about her identification. Babcock remembered seeing the gun and thought it was a.45 because it looked like a police gun.
Wilson’s Access to a Semiautomatic Pistol
Daryl Jackson, a prosecution investigator, spoke to Ashley Jordan on June 25, 2004. Jordan said Wilson told her he sold marijuana and offered her free marijuana the day he met her. Shortly before June 16, Jordan was in North Richmond at a friend’s house and saw Wilson remove a semiautomatic pistol from a car parked in the friend’s driveway, place it in his waistband, and walk away. She said the pistol was about the same size as Jackson’s duty weapon, which was approximately the same size as a.45-caliber pistol. Jordan testified at trial that she did not recall saying these things to Jackson.
Cell Phone Records
On June 16, 2003 at 5:52 p.m., a call was made from Wilson’s cell phone to Okeigwe’s cell phone. At 7:17 p.m., another call was made from Wilson’s cell phone to Okeigwe’s cell phone. At 7:19 p.m., a call was made from Babcock’s landline phone to Wilson’s cell phone.
Calls had also been made from Okeigwe’s cell phone to Wilson’s cell phone on May 3, 12, 18, 27 and 31, and on June 1, 2, 3, 4, 7, 8 and 16.
At 8:02 p.m., a call was made from Okeigwe’s cell phone to Wilson’s cell phone. At the start of the call, Okeigwe’s signal bounced off a cell tower in San Pablo and at the end it bounced off a cell tower in North Richmond. Between 8:06 p.m. and 8:09 p.m., five calls were made from Wilson’s cell phone to an Alameda number that was identified in the phone records as a landline. The first four calls lasted one minute or less, and the fifth lasted four minutes. At 8:23 and 8:25 p.m., calls were made from Wilson’s cell phone to Momoh’s cell phone. Thompson’s 911 call was made at 8:39 p.m.
Momoh testified that Okeigwe frequently called him from other people’s phones.
The next call on Wilson’s cell phone was a one-minute call placed at 8:57 p.m. to the same Alameda number that had been called five times between 8:02 and 8:09 p.m. Additional short calls were made from Wilson’s cell phone at 8:59, 9:07, 9:10, 9:14, 9:16, 9:37 p.m.
Evidence of Drug Trafficking
Based on voice mail messages left on Okeigwe’s cell phone, contact with a telephone number Okeigwe called on June 16, 2003, and information provided by Emecca, Detective Peixoto, who was qualified as an expert on drug dealing in Richmond, opined that Okeigwe was a street-level marijuana dealer, and that he was planning to purchase marijuana on June 16.
Babcock also testified that she had purchased marijuana from Okeigwe.
Peixoto testified that persons involved in street-level sales typically have suppliers from whom they purchase in large amounts. A street-level dealer might pay as much as $1,200 for one ounce, or $7,000 for one pound, of high-quality marijuana, such as marijuana grown in Humboldt County, California.
Based on documents seized pursuant to search warrant from Wilson’s room in his grandmother’s residence in North Richmond, Peixoto also opined that Wilson sold narcotics. He testified that certain writings included a pay/owe sheet relating to drug transactions, and a list of monetary amounts in the thousands of dollars.
The largest entry was “17,000.”
Darlene Weaver
On June 19, 2003 at 2:56 a.m., a police SWAT (Special Weapons and Tactics) team executed a warrant to arrest Wilson at his last known residence, a home in Antioch, California, but did not locate him. Peixoto spoke with the owner, Darlene Weaver, who was Wilson’s second cousin. The police told Weaver that Wilson was wanted for killing three people and she informed them that Wilson no longer lived with her, but had moved to one of three residences in North Richmond. She gave him Wilson’s cell phone number.
Weaver testified that Wilson had lived with her and her family on and off over the years, most recently from January to mid-April 2003. He left because they had disputes about Wilson’s complying with household rules. Wilson was attending Diablo Valley College when he lived with them and she believed that Okeigwe was one of Wilson’s closer friends. He would frequently call for Wilson, they would go to clubs together, and he often gave Wilson a ride home. After Wilson left the Weaver home, he went to live with his grandparents.
Weaver described the police entry to her home as a frightening experience. She testified at trial that she called Wilson at his grandmother’s house at about 4:00 a.m. that morning. “I was very scared,... yelling, crying, scared.” She told Wilson the police were at her house and they broke down the door looking for him for murder. “What did you do?... Why are they here?” He responded, “What? The police are at your house? What?” After about three or four minutes, Wilson said he would call Weaver back. Weaver called back and Wilson’s grandmother said Wilson just left.
Peixoto testified that Weaver told him that when she called Wilson that morning, Wilson did not respond immediately to her questions. Then he said, “ ‘They don’t have me as an accessory?’ ” She said, “No, they said you killed two people.” Wilson then hung up the phone. Weaver immediately called back and Wilson’s grandmother said he was no longer there.
Wilson’s Arrest in Humboldt County
Peixoto discovered that Wilson had been calling numbers in Northern California before the murders. With this and other information, he put a house in McKinleyville in Humboldt County under surveillance. On July 9, 2003, Wilson got in the driver’s seat of a car that had pulled up to the house and started to drive away. After about two blocks, two police SUV’s behind Wilson activated their flashing lights to get him to pull over. Wilson drove evasively, accelerated to 45 to 50 miles per hour, at times reached 85 to 95 miles per hour, and ran stop signs. After about five minutes of pursuit, the transmission seal blew out on his car and it came to a rolling stop. Wilson was arrested.
Wilson’s Defense
Wilson’s defense at trial was based on third-party culpability. He testified that Marcus Rauls (deceased at the time of trial), was the actual perpetrator, and that the shootings were motivated by a drug-related dispute.
Wilson testified that he was raised in Richmond until he was about 16 years old. He lived on and off with Darlene Weaver in Antioch. He became acquainted with Okeigwe in January 2003 at Diablo Valley College, where both were students. Wilson and Okeigwe saw each other daily on campus, became friends, socialized on and off campus, and frequently spoke by phone. Okeigwe was among Wilson’s closest friends in June 2003.
Both Okeigwe and Wilson sold marijuana. They also provided each other with sources for marijuana, and sometimes sold marijuana to each other when they were short. One of Wilson’s suppliers was Marcus Rauls. Rauls had just been released from juvenile custody for murder when Wilson met him. Rauls also sold marijuana to Okeigwe after Wilson introduced them. Both Wilson and Okeigwe would purchase about two or three ounces of marijuana at a time from Rauls, paying $250 to $300 per ounce, paying a total of about $750 in cash. Sometimes Okeigwe would contact Rauls directly, and sometimes he would ask Wilson to find Rauls for him in Richmond. Wilson was often present when Okeigwe bought marijuana from Rauls, which occurred once or more per week, and they often met Rauls for drug sales in Triangle Court, where the killings occurred. Wilson also called Rauls almost daily, and Rauls sometimes went to parties with Wilson and Okeigwe. Rauls also sold ecstacy and possibly crack cocaine. Wilson did not sell those drugs, but he often saw Rauls sell ecstasy to Okeigwe when he was also selling him marijuana.
The parties stipulated that Okeigwe was arrested September 14, 2002, for a Health and Safety Code section 11378 violation, possession of ecstasy for sale.
Wilson denied carrying a gun when he sold marijuana. He insisted that did not have access to a gun, “but I’m sure in Richmond you can find one.” He denied that he ever removed a semiautomatic pistol from a car as allegedly described by Jordan. Wilson testified that he had seen Okeigwe with a gun, and that he had seen a gun on Rauls nearly every time he got in a car with him.
On June 16, 2003, Wilson and Okeigwe called each other in the afternoon. Okeigwe asked if Wilson could find Rauls for him. When Wilson saw Rauls later that day, he told Rauls that Okeigwe wanted to see him. Rauls said to meet him at 8:30 p.m. in Triangle Court. Wilson relayed that information to Okeigwe by phone and Okeigwe said he would come to Richmond with his cousin. Okeigwe later called Wilson to say that he was in North Richmond, and he picked up Wilson in his black Caprice. Instead of the cousin, two women were in the car whom Wilson did not know. Wilson sat in the rear passenger-side seat.
Okeigwe drove to Triangle Court and they waited in the car for Rauls. Wilson and Okeigwe were talking and music was playing in the car. Okeigwe used both Wilson’s phone and his own phone while they were in the car. They were being friendly with each other, and there was no argument.
Wilson saw Rauls, who was Black, 5 feet 11 inches tall and 175 pounds, walking toward the car. Wilson opened the right passenger-side door. “As I’m getting out of the car, I heard gunshots, pops, booms.” The sound was loud and it came from right behind him as he was exiting the car. His immediate reaction was to run. “[Y]ou don’t stop to think... when you hear gunshots going off. You don’t. You get away from ‘em. [¶]... [G]rowing up in Richmond, I’ve been in areas where I’ve heard gunshots before, and as kids, we ran on.” He ran southwest as fast as he could. As he ran, he heard more gunshots. When he reached Seventh Street, he saw someone from the neighborhood, who gave him a ride to his grandmother’s house.
When Wilson arrived at his grandmother’s house, he did not know whether anyone had been wounded or killed. He did not call Okeigwe because, “I mean, what do I call and ask? There was a shooting. I don’t want to know.... [I]t’s none of my business.” About an hour later, he went outside and heard rumors that people were killed at Triangle Court.
Wilson went back to his regular routine selling marijuana in front of his grandmother’s house. He learned two or three days later that it was Okeigwe who had been killed. Asked to explain how he felt, he testified, “You’re confused.... You’re trying to add what happened. You’re trying to put things together. But it’s like at the same time, now that I know some people were killed, I want to be completely removed.” He did not go to the police because “I’ve never in my life called the police on anyone because just growing up in that area I’ve just saw adults, other kids, the way they react to people calling the police. You don’t.” “I don’t want anything to do with this. That’s just what’s embedded in me, I guess you would say.... There’s people in that town that see crime, felonies, every day. They don’t call the police. That’s my environment. That’s not what you do.” “I was in fear of the situation. Then, you know, you find out someone’s dead.... I don’t care who was doing the shooting.... [I]f one of ‘em shot the other, do you not fear someone who’s capable or willing to kill?”
When he received a call from Weaver at 4:00 a.m. on June 19, 2003, after the police had searched Weaver’s house, “[T]he conversation was to the extent of: Are you sure?... [¶] Are you 100 percent sure?... Okay, I know—I know something.... [¶] Are they speaking... of a murder or is he wanted for questioning, accessory for murder?” After the call, Wilson left his grandmother’s home. He did not recall where he went, but he returned to his grandmother’s house later that same morning.
In the days following the shooting, Wilson had not seen Rauls as he normally would in the neighborhood. He saw him after Wilson’s name started appearing in the news as a suspect in connection with the shootings. Rauls told Wilson that he needed to leave, and that Rauls had a place “up north” where Wilson could stay. Wilson went to McKinleyville in Humboldt County, as Rauls directed, by bus. He had been to parties in McKinleyville before and he knew the mother of Raul’s child, Melissa, and some other people there. He recalled being with Rauls in Humboldt County.
Wilson was arrested driving Melissa’s car.
Wilson testified that Rauls told him why he killed Okeigwe while they were together in Humboldt County. “He explained to me that... [Okeigwe] was snitching on him... to other drug dealers that you’re selling drug[s] out of... territorial boundaries. He’s selling drugs in South Richmond, Central Richmond. People find out about that, you know, they kill you.” Wilson testified that drug territories are violently enforced, and he understood the seriousness of Okeigwe’s alleged snitching. “[I]t could have easily been reversed to [Rauls’s] death if he would have been caught over there in the area in which [Okeigwe] snitched....” He understood, but did not “accept,” why Rauls would kill him over it.
Wilson testified that he called Rauls about once a month while he was incarcerated following his July 2003 arrest, and that he received letters from Rauls while he was in jail, but he did not keep them. Rauls sent his picture to Wilson soon after Wilson was arrested.
In April 2004, Wilson learned that Rauls had been shot to death. When he heard the news, he “felt free” and he called his lawyer. “I’ve already told them what happened, but it’s like, hey, man, let the people know.... [H]ey, can you call the [d]istrict [a]ttorney and tell them what happened?... I mean, shit, let the truth be known.”
Regarding the several calls Wilson had made on his cell phone to an Alameda number both shortly before and shortly after the killings, Wilson said he did not remember who he called and speculated that he might have received someone’s number and called it for the first time that night. He testified that the calls had nothing to do with Okeigwe, Rauls, the killings, or the meeting at Triangle Court. He could not say who he called at 8:57 p.m., shortly after the killings, attributing this to his state of mental confusion at the time. Wilson testified that it could have been Rauls’s number, even though Wilson had frequently called him before, because Rauls and many other drug dealers frequently changed cell phones.
Regarding the car chase that led to his arrest in Humboldt County, Wilson said he fled because he did not have a driver’s license and he knew they would find out that he was wanted for murder.
Wilson acknowledged that he did not go to his friend Okeigwe’s funeral or ever contact Okeigwe’s or Young’s relatives to express his condolences about their deaths.
The writing that Peixoto had opined was a pay/owe sheet for drug sales was not a pay/owe sheet, but a “piece of paper I was writing on numbers where I was trying to save up money or put together money to make a down payment on a motorcycle” in 2003.
Wilson acknowledged that in April 2004, shortly after Rauls was killed, he asked his mother to send him her phone records for May and June 2003, a period during which he was using her phone. He testified that he did so “[b]ecause they have all the numbers that I call on them. [¶]... [¶] You don’t memorize calls. They have all of my numbers on them, kind of like a phone book.” He also admitted writing to his mother asking for the name of a woman who said she saw the killings, and telling her that she should send the information to him and not to his attorneys. Wilson’s mother testified that Ethel Ingram, who lived in or near Triangle Court, had approached her in a grocery store parking lot and told her she saw the shooter and it was not Wilson or any of his siblings.
Wilson further acknowledged that he attempted to contact potential witnesses, either directly or indirectly, in the weeks before trial. Wilson said that he tried in his own fashion to get Rauls’s mother and ex-girlfriend to talk to his attorneys. He contacted Rauls’s former girlfriend and mother on the assumption they might know something about the shootings based on their close relationships with Rauls. Rauls’s mother would not help him because “she doesn’t want no part because everything is interpreted as snitchin’. [¶]... Don’t nobody want to talk to the police. Nobody want to talk to attorneys. Nobody want to talk to private investigators.”
Other Defense Evidence
The defense presented several witnesses to question the reliability of Babcock’s identification. Mary Escobar, R.N., who was present during Peixoto’s interviews of Babcock at John Muir, testified that Babcock was medicated with powerful sedatives, including prophyrol and morphine, at the time of the hospital interviews. She did not recall that Babcock had a noticeable physical reaction to being shown a picture of Wilson during the third interview, as Peixoto had testified. Nagui Achamallah, a psychiatrist at John Muir who evaluated Babcock for post-traumatic disorder, testified that she had an acute stress reaction, which when coupled with her physical trauma and psychological stressors could have impacted her memory. Dr. Scott Fraser, a psychologist and expert in the area of identification and memory, described factors that affect eyewitness identification, including weapon focus, fight-or-flight reactions, and photograph bias. He opined that a witness’s degree of confidence in an identification is not an indication of its accuracy.
Rebuttal
Peixoto was qualified as an expert witness in the areas of possession, possession for sale and sale of controlled substances including marijuana in the streets of Richmond. He testified that street-level drug dealers in Richmond fiercely and violently defend their selling territories, and that deaths commonly resulted from such territorial disputes. However, there was a “big difference” between street-level sellers and wholesalers. “Persons that sell in ounces and above, that deliver narcotics, there is no territory.” They sell where the customers are. He also testified that the term “snitch” only applies to an individual who provides law enforcement with information, not to one “drug dealer telling another drug dealer about what drug dealers are doing.”
Peixoto testified that Wilson spoke to him about the crime after his arrest in Humboldt County. Wilson asked whether Peixoto thought he committed the murders. Peixoto said he did, and Wilson took a deep breath and said, “ ‘That’s now [sic] how it went down.’ ” He said, “ ‘Fuck that. I’ll tell you right now, I didn’t pull no trigger.’ ” Some “bad shit” happened and he “r[an] for [his] life” but did not shoot “no one.” Wilson told Peixoto that he was friends with Okeigwe but that Okeigwe had plans to rob someone in North Richmond, who happened to be a family member of Wilson’s. Wilson said, “ ‘Even though we were friends, I had to tell my family member about these robbery plans.’ ” Peixoto asked for the name of the family member and said he would investigate to confirm the story, but Wilson refused to provide a name. He did not mention Rauls.
Peixoto asked Wilson to confirm that he told Weaver, “ ‘Are they looking for me as an accomplice?’ ” and Wilson admitted making that statement. Wilson then said, “ ‘I don’t know why I said that shit.’ ” Wilson said as soon as he spoke to Darlene Weaver, “he stopped the conversation and that day obtained a ride from a friend to McKinleyville.” Finally, Wilson told Peixoto he had a bus ticket to leave for Atlanta, Georgia the next day and Peixoto was lucky he caught him when he did.
Peixoto mistakenly used the word “accomplice” rather than “accessory.”
Wilson denied making any of these statements to Peixoto. He did not tell him that Okeigwe said he was going to rob a family member of Wilson and that he told that family member about the plan; Detective Peixoto said that to him. He did not have a ticket to Atlanta. He and his vehicle and his residence were searched and no ticket was found.
Christine Rauls, Marcus Rauls’ mother, testified that she saw Rauls almost daily between June 2003 and when he was killed on August 4, 2004, and Rauls never told her that he had anything to do with the killings. The trial “[wa]s the first I’ve ever heard that Marcus supposed to had done this, and he’s been dead three years.”
Wilson called Ms. Rauls from jail and said he was going to send someone to talk to her. Wilson’s brother Marvin came to her house and asked her to take a drive with him. “[H]e said, ‘You know, um, your son and my little brother was tight, and I don’t even know how to come at you with this, but could you just help his little brother out and say that Marcus did it?’ ” She did not respond and he told her just to think about it. Marvin asked her if she needed anything and she said she did not. He said if she did she should let him know and it would be taken care of. Then he dropped her off. The next day Wilson spoke to Ms. Rauls on the phone and said she should just think about it and he understood it would be hard for her to say that about her son and he understood because he had been friends with Rauls.
Ms. Rauls testified she thought Wilson and Rauls were friends. Rauls supported himself by selling drugs and getting money from his girlfriends. She had heard that he carried a gun, but she had never seen him with one.
Prosecution Argument
In closing argument, the prosecutor relied almost entirely on the theory that Wilson was the direct perpetrator of the crime. However, he also briefly argued felony murder culpability based on aiding and abetting a robbery.
Discussion
Wilson raises four issues on appeal. First, he argues the court erred in instructing the jury on accomplice liability. Second, he argues the court erred in not instructing the jury that it had to unanimously agree whether Wilson was the direct perpetrator or an aider and abettor. Third, he argues the court erred by admitting evidence that Wilson had been kicked out of the Weaver home because of his behavior and that Weaver had said he had a “ghetto mentality.” Finally, he argues the trial court erred when it did not respond to, or inquire further into, a juror question about whether it would be unethical for a defense attorney to allow his client to testify if the client had confessed to the attorney. We begin with the instructional issues and then proceed to the evidentiary and juror question issues.
I. Jury Instructions
Wilson argues the trial court erred when it instructed the jury on accomplice liability and when it refused a defense request for an instruction requiring the jury to unanimously agree on a theory of first degree murder liability.
A. Sufficiency of the Evidence to Support Accomplice Instructions
Wilson argues there was insufficient evidence to support accomplice instructions and the error was prejudicial. When the prosecutor requested the accomplice instructions, the court considered whether the instructions were supported by the evidence. The court found sufficient evidence, citing the telephone calls to the Alameda number made in rapid succession right after Wilson had spoken to Okeigwe, Wilson’s role in directing Okeigwe to the scene of the killings, and his statements to Peixoto during the interview in the car.
“It is error to give an instruction which, while correctly stating a principle of law, has no application to facts of the case.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129 (Guiton).) Such an error requires reversal only if it is reasonably probable the result would have been more favorable to the defendant had the error not occurred. (Id. at p. 1130.) “In determining whether there was prejudice, the entire record should be examined, including the facts and the instructions, the arguments of counsel, any communications from the jury during deliberations, and the entire verdict. [Citation.] Furthermore, instruction on an unsupported theory is prejudicial only if that theory became the sole basis of the verdict of guilt; if the jury based its verdict on the valid ground, or on both the valid and the invalid ground, there would be no prejudice, for there would be a valid basis for the verdict.... [T]he appellate court should affirm the judgment unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.” (Ibid.)
1. Potential for Prejudice
The People argue that we need not decide whether there was sufficient evidence to support the accomplice instructions because there was sufficient evidence to support Wilson’s conviction as a direct perpetrator. We agree there was sufficient evidence to support a conviction on the direct perpetrator theory, and Wilson does not challenge the sufficiency of the evidence on this basis. However, the trial record does demonstrate a reasonable probability that one or more jurors relied on the allegedly unsupported accomplice theory, since the jury was unable to reach unanimity on the allegation of personal use of a firearm. (Guiton, supra, 4 Cal.4th at p. 1130.)
The People argue the failure of the jury to render a verdict on the enhancement allegation does not necessarily demonstrate prejudice. They note that the Supreme Court has held that a jury’s rejection of an enhancement does not preclude reliance in a retrial on a theory factually related to the substance of the enhancement. (See People v. Catlin (2001) 26 Cal.4th 81, 123-125 (Catlin).) For example, in Catlin, the court held that a judgment of acquittal under section 1118.1 on a “financial gain” special circumstance allegation in a prior murder trial did not preclude the People from presenting evidence of the defendant’s receipt of proceeds from insurance on the decedent in that case as evidence of the defendant’s financial motive in a subsequent killing. (Catlin, at pp. 124-125.) In People v. Santamaria (1994) 8 Cal.4th 903, 922, the court approved the prosecution’s use, on retrial, of evidence that the defendant used a knife to commit the murder, even though the jury in the first trial had found the enhancement allegation based on use of the knife not to be true. Catlin and Santamaria, however, address the application of collateral estoppel and double jeopardy principles in criminal retrials, issues that have no application to this case. Moreover, Santamaria explains, “[T]he jury’s not true finding on the enhancement allegation does not mean defendant did not use the knife, only that there was a reasonable doubt that he did.” (Santamaria, at p. 922, italics added; see Catlin, at p. 124.)
Here, the jury’s inability to reach a verdict on the personal use enhancements indicates that at least one juror had a reasonable doubt about whether Wilson personally fired the shots that killed Okeigwe and Young and injured Babcock. It necessarily follows that at least one juror had reasonable doubt that Wilson was liable for murder and attempted murder as the direct perpetrator. Because the jury agreed unanimously that Wilson was culpable for those crimes, there is a reasonable probability that one or more jurors relied on an accomplice theory in return of the verdict of guilt.
The People argue that a conviction cannot be set aside merely because the jury rendered an inconsistent verdict. However, the holdings they cite apply only in the absence of instructional error. (United States v. Powell (1984) 469 U.S. 57, 66-67; People v. Sanchez (2001) 26 Cal.4th 834, 853, fn. 11.) Here, the People argue that even if the trial court erred by instructing the jury on a factually unsupported theory of liability, we should let the inconsistent verdicts stand. The cases do not support such a rule, which would directly conflict with Guiton’s instruction that a conviction in such circumstances should be affirmed “unless a review of the entire record affirmatively demonstrates a reasonable probability that the jury in fact found the defendant guilty solely on the unsupported theory.” (Guiton, supra, 4 Cal.4th at p. 1130, italics added; see also People v. Perez (2005) 35 Cal.4th 1219, 1234 [assuming instructional error was factual rather than legal, finding reasonable probability the jury relied on unsupported theory where closing arguments focused on the theory and the jury returned a general verdict].)
Because there is a reasonable probability that at least one juror relied on an accomplice theory to convict Wilson of first degree murder, we consider the merits of Wilson’s argument that there was insufficient evidence to support an accomplice theory of liability.
2. Sufficiency of the Evidence Standard
When a conviction is challenged on the ground of insufficient evidence, “the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578; see Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)
“In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citations.]” (People v. Johnson, supra, 26 Cal.3d at pp. 576-577.) “ ‘[I]t is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’ [Citation.]” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
“The court does not, however, limit its review to the evidence favorable to the respondent.... ‘[O]ur task... is twofold. First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent. Second, we must judge whether the evidence of each of the essential elements... is substantial; it is not enough for the respondent simply to point to “some” evidence supporting the finding, for “Not every surface conflict of evidence remains substantial in the light of other facts.” ’ [Citation.]” (People v. Johnson, supra, 26 Cal.3d at p. 577; see also People v. Cuevas (1995) 12 Cal.4th 252, 260-261.) “ ‘A reasonable inference... “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶]... A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.” ’ [Citation.]” (People v. Coddington (2000) 23 Cal.4th 529, 599.)
3. The Accomplice Instructions
While Wilson contests the propriety of instructing the jury on accomplice theories of liability, he does not contend that the jury was incorrectly instructed on these theories. The trial court instructed generally on aiding and abetting liability, robbery felony murder, and accomplice liability for felony murder. (CALJIC Nos. 3.00, 3.01, 8.20, 8.21, 8.21.1, 8.27.)
“A person aids and abets the commission of a crime when he or she, (i) with knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose of committing, facilitating or encouraging commission of the crime, (iii) by act or advice, aids, promotes, encourages or instigates the commission of the crime.” (People v. Cooper (1991) 53 Cal.3d 1158, 1164.)
Section 189 provides that “any killing committed in the perpetration of specified felonies, including robbery, is first degree murder. Under long-established rules of criminal complicity, liability for such a murder extends to all persons ‘jointly engaged at the time of such killing in the perpetration of or an attempt to perpetrate the crime of robbery’ [citation] ‘when one of them kills while acting in furtherance of the common design.’ [Citation.]” (People v. Pulido (1997) 15 Cal.4th 713, 716.)
4. Evidence of Accomplice Liability
On review of the entire trial record, we conclude there was sufficient evidence to convict Wilson on an accomplice theory of liability.
Wilson places both himself and Rauls at the crime scene, and admits that he was the one who directed Okeigwe to the location. While mere presence at the scene of a crime is alone insufficient to show aiding and abetting, it may be considered with other evidence in determining if that person is an aider and abettor. (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460.)
There was evidence from which it can be inferred that Okeigwe was robbed. In final argument, Wilson’s counsel agreed that the evidence showed that this was a murder during a drug transaction, the only issue being the identity of the shooter. Wilson testified that Okeigwe was there to conduct a drug transaction and that both he and Okeigwe typically purchased $750 worth of marijuana at a time. Only $134 was found on Okeigwe or in his car. The jury could easily infer that whoever shot Okeigwe and his companions also stole the cash Okeigwe planned to use to buy the drugs. Jurors could have concluded that Wilson intentionally joined in the commission of a robbery, even if he did not intend to participate in murder. Under the felony-murder doctrine advanced by the prosecution, the jury could find him liable for first degree murder if they believed him to be an accomplice in this robbery.
The record also includes evidence of motive. Wilson testified that Rauls had a motive to kill Okeigwe for telling rival drug dealers that he had been selling drugs in their territory. In light of Wilson’s apparently close relationship with Rauls on both a social and business level—Wilson admitted that Rauls was his supplier and his previous contacts with Rauls in Humboldt County suggest his involvement in Rauls’s marijuana distribution operations might have been more extensive than he admitted—Wilson might have directly or indirectly shared in Rauls’ concerns. Alternatively, a motive for Wilson to kill or rob Okeigwe with another person could be inferred from Peixoto’s testimony that Wilson believed that Okeigwe planned to rob a relative of Wilson’s.
He testified that the purpose of the meeting was to carry out a drug transaction and it could be inferred he chose a location where he believed this criminal conduct would not be readily detected. The evidence showed that he called a number five times in rapid succession just before Okeigwe picked him up in Richmond en route to Triangle Court, a pattern that suggests he felt an urgency to contact the person associated with that number before he was picked up by Okeigwe. The first call he made following the murders was to the same number, a mere 20 minutes or so after the shootings. The jury may have found it less than credible that Wilson could not remember the identity of the first person he called after witnessing three cold-blooded murders.
Although the phone records identified the number he called as a landline located in Alameda, the prosecutor argued in closing argument that the “landline” designation might mean only that Wilson was calling a cell phone served by a different carrier from Wilson’s and that the number was based in Alameda. He noted that the 8:02 p.m. call from Okeigwe’s cell phone to Wilson’s cell phone appeared on phone records as a mobile to landline call on Wilson’s phone records because Okeigwe used a different carrier than Wilson.
There was evidence from which the jurors could readily conclude that Wilson was fabricating all, or part, of his testimony. Wilson did not publicly accuse Rauls until the start of trial, almost four years after the killings and three years after Rauls died. At about the time of Rauls’s death in April 2004, Wilson asked his mother to send him his phone records from May and June 2003, even though Wilson had been incarcerated since July 2003. Wilson testified that he did so because he wanted to use the records as a sort of personal phone directory, but this explanation does not explain the timing of the request.
The jury could reasonably conclude that Wilson’s dealings after the killings with the person he identified as the perpetrator were not consistent with Wilson’s testimony that he fled and refused to contact the police out of fear of Rauls, but rather as evidence that he and Rauls continued to cooperate in avoiding the police after the killing. He lived with Rauls in McKinleyville, and communicated regularly with Rauls once arrested and incarcerated. Ms. Rauls testified that she had the impression that Wilson and Rauls were friends and she testified that Wilson’s brother told her Wilson and Rauls were “tight.” In view of the lack of corroboration that Wilson feared Rauls, the jury could infer a consciousness of guilt from his repeated flight (from his grandmother’s home after Weaver’s call, from Richmond to McKinleyville, from the police during the car chase, and a planned departure from McKinleyville to Atlanta). Peixoto testified that Wilson changed his story about how he went from Richmond to McKinleyville (saying he took the bus during the interview in the police station, but saying he got a ride from a friend during the conversation in the police car), thus suggesting he was lying and losing track of his story.
Further, Wilson’s own statements to Weaver and Peixoto could reasonably be construed to confirm Wilson’s role in the killings, at minimum as an accomplice. One of Wilson’s first reactions to Weaver’s report that the police were looking for him was to ask if they wanted him as an accessory. Wilson implied in his testimony that by “accessory,” a term he did not use in its technical legal sense, he meant percipient witness, but the jury could have inferred that he made the comment because he was concerned that the police had determined that he was criminally involved in the killings. Peixoto testified that when he asked Wilson if he had said, “Are they looking for me as an accomplice?” Wilson agreed that he made the statement, arguably disclosing consciousness of guilt. Peixoto also testified that Wilson denied being the shooter, rather than denying that he was involved at all in the crime. When Peixoto said he thought Wilson was the shooter, Wilson said that was “no[t] how it went down,” which arguably suggested Wilson had greater knowledge about how the incident unfolded than he had claimed on the witness stand.
The credibility of Wilson’s testimony about his close friendship with Okeigwe may have been further undermined by Wilson’s apparent failure to show emotion when he was asked on the witness stand how he felt when he learned Okeigwe was dead. The prosecutor referred to Wilson’s demeanor in this specific context during cross-examination and closing statement, and defense counsel elicited testimony from Wilson about desensitization and revived the theme in closing. Wilson admitted that he did not call Okeigwe or his family to express his condolences from the time of the killings to the time of trial. In stark contrast, he apparently maintained a friendly relationship with Rauls, someone he initially characterized as his marijuana supplier, but not really a friend. In closing argument, the prosecutor argued based on the pattern of phone calls between Wilson and Okeigwe that there had been a falling out of some sort between the men in the month before the killings. On the day before the killings, Wilson repeatedly called Okeigwe. The prosecutor argued that this suggested an urgent need to contact him, possibly to carry out a preconceived plan to bring him to Triangle Court on the evening of June 16, 2003.
Wilson attempted to explain his behavior at and after the killings by asserting that he was desensitized by the violence in the community where he lived and was raised, and that certain rules of the street, such as the prohibition against snitching, were embedded in him. The jury was free to draw different inferences from that testimony. The harshness of Wilson’s life, his involvement in drug dealing, and his access to weapons might have persuaded the jury that it was plausible that this 18 year old, who was not impeached with any adult criminal record, was nevertheless capable of cold-blooded murder for rather pedestrian goals, such as protecting the business operations of himself and his supplier, or to prevent the robbery of a relative.
Wilson contends that there were reasonable innocent explanations for his conduct which support his defense. However, the jury had the opportunity to observe Wilson’s demeanor on the witness stand and take those observations into account when it weighed the evidence. By judging whether and when Wilson was telling the truth, in whole or in part, during his lengthy testimony, the jury could have been persuaded that the reasonable interpretations of certain circumstantial evidence were inculpatory, rather than exculpatory. Some of Wilson’s responses to cross-examination, for example, were substantive explanations of his actions, whereas others were categorical denials or implausible explanations. The jury could reasonably chose to reject, for example, Wilson’s testimony that he made none of the statements Peixoto attributed to him, and his testimony that he could not remember the identity of the first person he called a mere 20 minutes after he fled from the scene of the killings, and whom he had repeatedly called shortly before the murders.
In short, after carefully reviewing the entire record and drawing all reasonable inferences (including credibility determinations) in favor of the jury’s verdict, we conclude there was sufficient evidence to support the murder and attempted murder convictions on a theory of accomplice liability.
B. Fair Notice of Accomplice Theory
Wilson argues he was not given fair notice that the prosecution would be relying on an accomplice theory and the error was prejudicial.
Wilson forfeited the argument by failing to object on this ground in the trial court and by failing to move to reopen his case after the court agreed to give the instruction. (People v. Silva (2001) 25 Cal.4th 345, 368 (Silva).) Wilson argues that trial counsel’s failure to object or move to reopen his case amounted to ineffective assistance of counsel. However, when an ineffective assistance claim is raised on direct appeal, we will reverse the conviction only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his conduct. (People v. Frye (1998) 18 Cal.4th 894, 979-980, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Here, it is more than conceivable that defense counsel, a well-known and experienced criminal practitioner, made a tactical decision not to object to the instruction. In closing argument, defense counsel forcefully argued that the prosecution’s adoption of a new theory of liability late in the trial demonstrated that even the prosecutor had a reasonable doubt about whether Wilson shot the victims. Moreover, defense counsel complained at sentencing about lack of notice of the accomplice theories. Because his statements at sentencing demonstrate he was aware of the argument, his failure to raise it earlier suggests a strategic choice. Similarly, we cannot conclude on this record that defense counsel lacked a rational tactical reason not to reopen Wilson’s case to respond to the accomplice theories, even assuming the defense did not anticipate the theories. Wilson does not describe what additional evidence he would have presented to respond to those theories. In sum, we cannot conclude on this record that the forfeiture of Wilson’s notice claim resulted from ineffective assistance of counsel and that Wilson is therefore entitled to relief from the forfeiture.
In any event, Wilson has not demonstrated error. The Supreme Court has “ ‘long held that a pleading charging murder adequately notifies a defendant of the possibility of conviction of first degree murder on a felony-murder theory.’ (People v. Gallego (1990) 52 Cal.3d 115, 188 [(Gallego)]....)” (Silva, supra, 25 Cal.4th at p. 367).) The court has acknowledged that, “[b]ecause of the different varieties of murder,... in some instances an information charging murder without elaboration may not provide notice sufficient to afford the due process of law guaranteed by the Fourteenth Amendment to the federal Constitution. (People v. Gallego, supra, 52 Cal.3d 115, 189....)” (Silva, at p. 368.) In Sheppard v. Rees, for example, the Ninth Circuit held the defendant was denied federal due process where the felony-murder theory was never directly or indirectly raised during pretrial proceedings, opening statements, presentation of evidence, or counsels’ discussion of jury instruction with the court. (Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, 1235, discussed in Gallego, at p. 189.) On the morning of closing arguments, the court granted the prosecutor’s eleventh-hour request for a felony-murder instruction. (Sheppard, at p. 1236.) The Attorney General conceded that the prosecutor had “ambushed” the defense, and the federal court granted the defendant habeas corpus relief. (Id. at pp. 1237-1238.)
In both Silva and Gallego, the court concluded there was no due process violation of the sort found in Sheppard. In Silva, where the defendant argued he was surprised by felony-murder instructions, the prosecutor had said in opening statements that the defendant intended to rob the victim, and had introduced evidence of attempted robbery. (Silva, supra, 25 Cal.4th at p. 368 .) Together, these facts put the defendant on notice that the prosecutor intended to pursue a felony-murder theory. (Ibid.) In Gallego, the defendant similarly claimed surprise by a felony-murder theory; however, the defendant himself presented evidence that the murders were committed while he and another person were engaged in a robbery, and the prosecutor requested felony-murder instructions before the start of closing arguments, thus giving the defendant a fair opportunity to prepare his closing argument to address the theory. (Gallego, supra, 52 Cal.3d at p. 189.) The court found no error. (Ibid.)
Similarly, in this case, the prosecutor presented evidence of robbery during his case-in-chief: evidence that Wilson and Okeigwe went to Triangle Court to make a drug deal, that Okeigwe typically would pay more than $134 to purchase drugs in such a transaction, and that only $134 was found on Okeigwe and in his car following his murder. Defense counsel acknowledged early in the trial that the prosecutor’s theory was that Wilson killed the victims in the context of “a drug rip-off or a money rip-off,” and conceded in final argument that this killing arose from a drug transaction. Wilson presented evidence that a fifth person, Rauls, was at the scene, and the prosecutor elicited evidence that Wilson and Rauls were friendly and remained friendly after the murders. The prosecutor also presented evidence that Wilson called a particular number five times in rapid succession just before being picked up by Okeigwe, and dialed the number again shortly after the murders. The prosecutor presented evidence that Wilson asked Weaver, “They don’t want me as an accessory?” and confirmed the statement to Peixoto. Also, the prosecutor presented evidence that Wilson made statements to Peixoto suggesting he was involved but not the direct perpetrator. This evidence should have put the defense on notice that the prosecutor was developing accomplice theories as an alternative to his primary direct perpetrator theory. In any event, the prosecutor requested the accomplice instructions well before the start of closing arguments and defense counsel had a fair opportunity to prepare to meet the argument.
We reject Wilson’s argument that he was not given fair notice that the prosecutor would present an accomplice liability theory to the jury.
C. Unanimity Instruction
Wilson argues the trial court erred in not instructing the jury that it had to unanimously agree on a liability theory (i.e., whether Wilson was the direct perpetrator or an accomplice) before it could convict him of first degree murder.
The trial court instructed the jury that it could not convict Wilson of first degree murder unless all jurors agreed he was guilty of murder and that the murder was of the first degree. However, the court did not instruct the jury that it had to unanimously agree on a theory of liability for first degree murder. The court specifically denied a defense request for an instruction that the jury had to unanimously agree whether Wilson was the direct perpetrator of the crime or an accomplice.
“Murder is classified into two degrees. If you should find the defendant guilty of murder, you must determine and state in your verdict whether you find the murder to be of the first or second degree.” (CALJIC No. 8.70.) “If you are convinced beyond a reasonable doubt and unanimously agree that the crime of murder has been committed by a defendant, but you unanimously agree that you have a reasonable doubt whether the murder was of the first or of the second degree, you must give the defendant the benefit of that doubt and return a verdict fixing the murder as of the second degree....” (CALJIC No. 8.71.) “The People and the defendant are entitled to the individual opinion of each juror. [¶]... Each of you must decide the case for yourself....” (CALJIC No. 17.40.)
Supreme Court authority precludes Wilson’s claim. “ ‘It is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by statute, it need not decide unanimously by which theory he is guilty. [Citations.] More specifically, the jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator.... [¶]... [¶] Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. Sometimes, as probably occurred here, the jury simply cannot decide beyond a reasonable doubt exactly who did what. There may be a reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he was the aider and abettor, but no such doubt that he was one or the other.’ [Citations.] Defendant contends that different facts would support aiding and abetting liability and liability as a direct perpetrator, but, as we have explained, the jury need not unanimously agree ‘on the precise factual details of how a killing under one or the other theory occurred in order to convict defendant of first degree murder.’ [Citation.] Naturally, in order to return a guilty verdict, the jury must agree unanimously that each element of the charged crime has been proved, but the factors that establish aiding and abetting liability are not included as elements of the crime of murder.” (People v. Jenkins (2000) 22 Cal.4th 900, 1024-1025 (Jenkins).)
Wilson argues that federal constitutional principles as expressed in Schad v. Arizona (1991) 501 U.S. 624, compel a different conclusion in the circumstances of this case. However, the Supreme Court considered Schad in its Jenkins decision and we are bound by the court’s application of federal law. (Jenkins, supra, 22 Cal.4th at p. 1025; Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
In Jenkins, the Supreme Court acknowledged that a unanimity instruction may be required in particular cases “if there are multiple acts shown [to support distinct theories of liability] that could have been charged as separate offenses.” (Jenkins, supra, 22 Cal.4that p. 1025.) Where, however, “defendant’s conduct as an aider and abettor or as a direct perpetrator could result only in one criminal act and one charge,” a unanimity instruction is not required. (Id. at pp. 1025-1026.) In Jenkins, the aiding and abetting theory presumed that the defendant was far from the crime scene at the time of the killing, whereas the direct perpetrator theory had the defendant present and pulling the trigger. (Id. at p. 1025.) Nevertheless, under either theory the defendant’s conduct culminated in a single criminal act: the drive-by shooting of a police officer as he approached his car. (Id. at pp. 935, 1025.) Similarly, under the direct perpetrator, aiding and abetting, and felony-murder theories presented in this case, defendant’s conduct culminated in a single criminal act: the close range shooting of Okeigwe, Young and Babcock in the Triangle Court parking lot. A unanimity instruction was not required in these circumstances. (See also People v. Davis (1992) 8 Cal.App.4th 28, 30-31, 44-45 [no unanimity instruction required in trial on armed robbery charge on dual theories that the defendant was direct perpetrator (i.e., entered the store and committed the armed robbery) and that he was an aider and abettor (i.e., waived in the getaway car)], cited in Jenkins, at p. 1026.)
The trial court did not err in refusing to instruct the jury that to convict Wilson of murder it had to unanimously agree whether he was the direct perpetrator or an aider and abettor.
II. Admission of “Ghetto Mentality” Evidence
Wilson argues the trial court erred by admitting evidence of Wilson’s prior bad acts in the Weaver home and Weaver’s comment that he had a “ghetto mentality.”
A. Factual Background
In his opening statement, the prosecutor told the jury, “Now, you heard a little bit about the defendant and him being a poor [B]lack from Richmond. Well, that’s not quite true. The fact of the matter is, starting at least in January of 2003, the defendant didn’t live in Richmond at all. He lived in Antioch... with his second cousin, Darlene Weaver, and her husband Ivan. [¶] And they are not poor. They have a million-dollar house, or at least they just recently sold it for, like, [$]985,000 dollars.... [¶]... However, he, apparently, for whatever reason, rejected the efforts of Ivan and Darlene to try to give him some opportunities. He conducted himself in a way that was of great consternation to them. They characterize it as kind of a ghetto mentality. [¶] And so, on his 18th birthday, which was April something, April 19th, 2003, on that very day Ivan put all of Kimiko’s stuff on the doorstep and invited him to leave.”
The jury voir dire was not transcribed. However, in closing argument the prosecutor asked the jury to recall that during voir dire defense counsel had told Wilson to stand and then asked the jurors, “Can you give... a poor [B]lack from Richmond a fair trial[?] I want you to look at him in the eye and tell us that you can.”
Midtrial, in anticipation of testimony by Darlene Weaver and her husband, defense counsel moved to exclude evidence of Wilson’s conduct in the Weaver home and the “ghetto mentality” comment as inadmissible character evidence. The prosecutor argued that the evidence was relevant to explain the Weavers’ relationship with Wilson, illuminating why Wilson lived with the Weavers, why he left, and where he went after leaving their home. “[I]t’s not my intention to spend a lot of time with background but to understand the context, and so the jury can know who Darlene Weaver is and why she’s in the position to say the things she’s able to say....” The prosecutor argued the nature of their relationship was relevant to the jury’s consideration of statements Wilson did (the accessory statement) and did not (protestations of innocence) make to Ms. Weaver after the killings.
The court ruled that testimony by the Weavers about their past relationship with defendant was “relevant to a certain degree because it does go to the witness[es’] motive and bias, and it does explain the relationship between them. It would explain why she would call him at 4:00 a.m., and it would explain why the police would come to her house, and it would further explain why he was not there. So, those things I do find highly relevant, and basically explains the situation of the spontaneous statement of what he’s saying to her. [¶] So, for you, I think it actually cuts both ways. I don’t find that the fact that he wouldn’t do chores around the house is so prejudicial to outweigh the probative effect of the relevance of it that I do find is there, so I will allow the prosecutor to go in to explain the relationship that they have with the defendant.”
Darlene Weaver testified that her relationship with Wilson was that of a parent and teenage son. They got along fine, but had some disputes about the times when Wilson would come home. The Weavers asked Wilson to call if he was not going to come home. Before Wilson’s 18th birthday, the Weavers told him he could stay as long as he wanted to if he followed household rules, such as calling if he was not going to be home at a certain time or doing household chores. He chose to leave and Ivan helped him move out.
Ms. Weaver denied that she told Peixoto that Wilson continued to have a “ghetto mentality” and was not following the rules of the house. Peixoto, however, testified that Weaver told him she had taken Wilson into her home, but then had problems with him. She said Wilson had a “ghetto mentality” and Peixoto wrote “ghetto mentality” in quotation marks in his report, indicating that those were the exact words Weaver used.
B. Analysis
Under Evidence Code section 352, “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) The trial court enjoys broad discretion in determining whether to admit evidence under section 352 and its exercise of discretion must not be disturbed on appeal unless arbitrary, capricious or patently absurd and resulting in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
The court did not abuse its discretion by admitting the evidence. Evidence of Weaver’s relationship with Wilson and their living relationship was relevant to explain why the police would seek to arrest Wilson at Weaver’s house, why he was not there, why she would know where and how to locate him, why Weaver would call Wilson shortly after the search, and why Wilson would communicate with the Weavers while he was “on the run” and after his arrest and incarceration. Evidence regarding the nature of their recent relationship was relevant to the jury’s evaluating Weaver’s testimony (specifically, discrepancies between her testimony and Peixoto’s notes of her prior statements) and Wilson’s statements to her and to her husband.
While the “ghetto mentality” statement could be viewed as prejudicial in isolation, the court reasonably concluded it was not unduly prejudicial in the context of the unfolding trial. The defense placed great emphasis on Wilson’s background as a poor Black man who grew up in the crime-infested area of North Richmond. During trial and in closing argument, defense counsel argued that Wilson’s conduct at the time of the shootings and after could only be understood in the context of a person who grew up in the environment of North Richmond, where snitching was not tolerated and people are so saturated by violence that they become desensitized and might seem callous to the outside observer. Wilson testified, “It’s like a jihad every day I wake up.” The “ghetto mentality” statement tended to support the defense argument that Wilson was inculcated in the rules of the street, which required him not to report the killings and to flee on Rauls’s instructions. As the court stated when it admitted the evidence, “I think it actually cuts both ways.”
Beyond the “ghetto mentality” statement, the specific reasons for Wilson’s expulsion from the household were not unduly prejudicial: Weaver testified he would not do his chores, pay his share of some household costs, or comply with a curfew. These are typical teenage tensions the jury was not likely to factor into its decision whether Wilson committed a double homicide.
III. Juror Misconduct
Wilson argues the trial court erred by declining to answer a juror’s question about whether it was ethical for defense counsel to allow the defendant to testify that he was innocent if the defendant had confessed to his attorney.
A. Factual Background
In its pretrial instructions to the sworn jury, the court stated, “If, during the trial, you have a question that you believe should be asked of a witness, you may write out the question and send it to me through the bailiff. I will discuss the question with the attorneys and decide whether it may be asked. [¶] Do not feel slighted or disappointed if your question is not asked. Your question may not be asked for a variety of reasons, including the reason that the question may call for an answer that is inadmissible for legal reasons. [¶] Also, do not guess the reason your question was not asked or speculate about what the answer might have been.”
During a break in Wilson’s redirect examination, the court conferred with the attorneys out of the presence of the jurors regarding two juror questions it had received. One of the questions read, “ ‘Is it a breach of ethnics [sic] for defense counsel to place a defendant on the stand to testify on being innocent if the defendant has inferred the same defense counsel that defendant’s committed a crime.’ ” Defense counsel stated, “[U]nquestionably the answer is yes. And I think the jury should be so informed.” The prosecutor objected, arguing it could not be a breach of ethics to do so because then a guilty person would not have the right to both speak truthfully to his attorney and testify on his own behalf. He also argued that informing the jury that it would be a breach of ethics to allow a guilty defendant to testify he was innocent would “invit[e] the jury to speculate about matters within the purview of the attorney/client privilege,” and would allow the jury to infer that Wilson had not confessed to his attorney, which was not in evidence, and was not subject to inquiry by the prosecution.
The court stated, “This [c]ourt doesn’t answer these notes. They’re just given to you.” When defense counsel offered to have an ethics expert testify, the court ruled, “It’s not relevant.... [¶] And it calls for speculation. And it would get into something that could take a lot of time that this [c]ourt doesn’t feel we should go into.”
B. Analysis
Wilson argues the trial court failed to make a reasonable inquiry into whether the juror who asked the ethics question was committing misconduct by considering facts not in evidence. Although he cites People v. Davis (1995) 10 Cal.4th 463 (Davis)in support of his argument, that case demonstrates the trial court did not err.
In Davis, during the penalty phase of a capital trial but before deliberations on the penalty, a single juror submitted a written note asking a series of questions about penalty issues, including whether it was certain that the jury’s verdict would be carried out. (Davis, supra, 10 Cal.4th at p. 546 & fn. 42.) The trial court did not conduct an inquiry into juror misconduct, but instructed the jury to assume its verdict would be carried out, even though the governor had the power of commutation. (Id. at p. 547.) The Supreme Court found no error. “A trial court must conduct a sufficient inquiry to determine facts alleged as juror misconduct ‘whenever the court is put on notice that good cause to discharge a juror may exist.’ [Citation.] On this record, we cannot conclude that the trial court was put on notice of good cause to discharge [the juror who asked the questions]. Accordingly, it did not err in refusing defendant’s request to conduct an inquiry into whether the jury had engaged in premature deliberations concerning penalty. [¶] Defendant merely speculates that there might have been jury misconduct. Mere questions from individual jurors prior to actual deliberations do not constitute jury misconduct. [Citation.] The note does not evince bias on the part of [the juror]; nor does it suggest that the jury improperly discussed the case prior to its submission to them.” (Id. at pp. 547-548.)
In People v. Ledesma,a capital jury asked the court during deliberations whether a sentence of life without the possibility of parole could be reduced. (People v. Ledesma (2006) 39 Cal.4th 641, 737.) The trial court instructed the jury to assume its verdict would be carried out. (Ibid.) On appeal, the Supreme Court rejected the defendant’s argument that “the question itself was evidence of juror misconduct in that it revealed the jurors were considering facts outside the evidence” and that the trial court had erred by not conducting an inquiry. (Id. at p. 738.) The court held that the question “cannot reasonably be construed as demonstrating that the jurors were unable or unwilling to follow the court’s instructions. The circumstance that the jurors asked the trial judge for clarification suggests they merely were seeking to understand the meaning of the instructions they had been given and were unaware that discussion of such matters was improper. Because the trial court had no basis for doubting the jurors’ ability or willingness to follow its instructions, further inquiry was not required.” (Ibid.)
Here too, the mere question from an individual juror about defense counsel’s ethical duty did not suggest juror misconduct. The juror’s inquiry was responsive to the court’s invitation to submit questions, but the jurors were also told that submitted questions would not necessarily be asked, and that they should not speculate as to the reason if they were not. The question in no way indicated that the juror was unwilling or unable to follow the court’s instructions, or that any basis for discharge of the juror would have been revealed if the inquiry suggested had taken place.
In both Davis and Ledesma, although the trial courts did not conduct an inquiry into juror misconduct, the courts instructed the entire jury in response to the juror questions. Wilson argues that, at a minimum, the trial court here should have provided a responsive instruction at that point, at least directing the jury to consider only facts in evidence. Had the trial court then provided an instruction addressing the substance of the juror’s question, the instruction might well have simply planted the seeds of speculation in the minds of the 11 other jurors. Although the trial court could have immediately reinstructed the jury to consider only facts in evidence, but it was not an abuse of discretion not to do so. The court had already instructed the jury to consider only facts in evidence and not to speculate about reasons juror questions were not answered. The court again instructed the jury before deliberations to not consider facts which were not in evidence. The failure to provide an additional such instruction midtrial was not an abuse of discretion.
Disposition
The judgment is affirmed.
We concur: Simons, Acting P. J., Needham, J.