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noting that the jurors were able to view and scrutinize the video recording of an interrogation and, from that, evaluate defendant's credibility during the interrogation
Summary of this case from People v. FernandezOpinion
C079709
09-22-2020
The PEOPLE, Plaintiff and Respondent, v. YOR XIONG, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of parts III through VII of the Discussion.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
MURRAY, J.
Defendant Yor Xiong shot the victim multiple times and then led police on a high-speed car chase on surface streets from south to north Stockton ending across the street from his house. A jury found defendant guilty of murder in the first degree (count 1), possession of a firearm by a felon (count 2), and evading an officer with wanton disregard (felony evading) (count 3). The jury also found true an enhancement allegation in connection with count 1 that defendant personally discharged a firearm causing the victim's death. The jury deadlocked on gang enhancement allegations on counts 1 and 2, and thereafter, the trial court granted the prosecution's motion to strike those allegations. Defendant was sentenced to 50 years to life plus two years eight months.
On appeal, defendant asserts that the trial court prejudicially erred in: (1) prohibiting him from testifying about his understanding, based on his experiences in Thai refugee camps, of a person's ability to deny allegations made by camp police officers, such testimony having been offered to establish that he made a false confession to the police in the instant case; (2) instructing the jury, in its CALCRIM No. 358 instruction, that the jury should consider with caution defendant's unrecorded statements because his defense was based on the premise that his recorded statements were coerced, false, and not credible and the instruction undercut this defense by suggesting the recorded statements should not be considered with caution; (3) refusing to hold an Evidence Code section 402 hearing regarding the testimony of the prosecution's gang expert; and (4) allowing the gang expert to testify concerning defendant's booking statements about his gang affiliation in violation of People v. Elizalde (2015) 61 Cal.4th 523, 189 Cal.Rptr.3d 518, 351 P.3d 1010 ( Elizalde ). Defendant also requests (5) that this court review the sealed transcripts of the in camera Pitchess hearing to determine if the trial court followed proper procedure and released all relevant material. In supplemental briefing, defendant asserts (6) that, following the enactment of Senate Bill No. 620, his case must be remanded for the trial court to consider whether to exercise its discretion to strike the firearm enhancement, and (7) that, following the enactment of Senate Bill No. 136, his two one-year prior prison term enhancements must be struck.
Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305 (Pitchess ).
In the published portion of this opinion, we conclude that the trial court erred in precluding defendant's testimony regarding his understanding about what happened to people who denied allegations made by police in the Thai refugee camps where he was born and stayed as a boy. His cultural experience was relevant to his state of mind in interacting with the detectives who interrogated him and tended to prove why he would have given a false confession. However, given the other evidence defendant was allowed to introduce concerning his confession, we conclude that he was not deprived of his constitutional right to present a defense by the preclusion of this testimony. We further conclude that the erroneous preclusion of this testimony was harmless.
We also conclude that the trial court erred in giving the following bracketed sentence from CALCRIM No. 358 : "Consider with caution any statement made by the defendant tending to show his guilt unless the statement was written or otherwise recorded." Defendant did not want the instruction, even though evidence of oral unrecorded inculpatory statements was admitted. The trial court had no sua sponte obligation to give the instruction. It is up to a defendant to request the instruction and a defendant is entitled to reject it. However, under the circumstances here, we conclude the error was harmless.
In the unpublished portion of this opinion, we modify the judgment by striking the two one-year prior prison term enhancements imposed pursuant to Penal Code section 667.5, subdivision (b). We remand so the trial court can exercise its discretion whether to dismiss or strike the section 12022.53, subdivision (d), firearm enhancement. As for defendant's other contentions, we conclude they are forfeited, meritless, and/or nonprejudicial.
Further undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
As modified, we affirm. FACTUAL AND PROCEDURAL BACKGROUND
The Charges
Defendant was charged with willful, deliberate, premeditated murder (§ 187, subd. (a); count 1); possession of a firearm by a felon (§ 29800, subd. (a)(1); count 2); felony evasion ( Veh. Code, § 2800.2, subd. (a) ; count 3); and participating in a criminal street gang (§ 186.22, subd. (a); count 4). The information further alleged that defendant committed counts 1 through 3 for the benefit of, at the direction of, or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) In connection with the murder count, the information alleged defendant personally used a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), and that defendant personally used a firearm in the commission of a felony. (§ 12022.5, subd. (a).) The information also alleged that defendant had served three prior prison terms within the meaning of section 667.5, subdivision (b).
Before the commencement of the jury trial, the trial court granted the prosecution's motion to dismiss count 4 based on insufficient evidence.
At the jury instruction conference, the trial court struck the gang enhancement allegation attached to count 3.
The People's Case-in-chief
The Shooting
L.C. lived in the vicinity of the shooting. She looked out a window and saw three guys talking across the street. One of them was wearing a red hat. After she closed the window, L.C. heard four gunshots and then two more. She saw a small black car speed away on 12th Street towards Airport Way.
N.V. heard what she believed to be fireworks. She then heard someone scream. She looked outside and saw a dark blue or black car, possibly an Acura, parked on the corner of 12th Street and Tiffany Street. She saw a person who looked Hispanic or Asian "looking like that they were looking down at somebody," extending his arm downward. It looked to N.V. like the person was pointing a gun at someone on the ground. N.V. also thought she heard the person "saying like ‘F you,’ and then ... like cuz or blood ...." N.V. testified that she may have told a detective that the individual said, "Fuck you, cuz, that's for messing with my family" and a detective confirmed that she did. She heard "another bang," and then the person jumped into the driver's side of the car and sped off in the direction of Airport Way. N.V. believed that there was a passenger in the front passenger seat of the vehicle as well. M.M. heard gunfire and went to the front of her house. She saw a person lying on the ground. She saw another person with a gun in his hand, walking away from the victim to a dark blue car, getting into the driver's seat, and taking off. M.M. described the male with the gun as having light skin and dark hair, wearing shorts and a white T-shirt. She believed he was possibly Asian. The car drove onto 12th Street toward Airport Way.
S.W. and D.C. were at home with D.W. when they heard gunshots. S.W. heard between three and six gunshots. He looked out his window and saw a small dark blue or black car take off westbound on 12th Street towards Airport Way. D.C. and D.W. ran outside. D.C. saw a "guy on the ground just bleeding." Both attempted to keep the person alive until an ambulance arrived.
Officer Edward Webb arrived at the scene at approximately 4:03 p.m. On the way, he received an update of a suspect vehicle, a black Acura. Webb saw a vehicle similar to that description at a red light, headed north on Airport Way at the intersection of Dr. Martin Luther King, Jr., Boulevard. Webb observed the driver of the vehicle. Later, when Webb saw defendant at the hospital, he recognized him as the driver of that vehicle. Webb continued to the scene of the shooting. There, Webb observed the victim on the ground and noted he had been shot several times and a woman was giving him CPR. Police discovered eight cartridge casings at the scene of the shooting.
The Pursuit, Arrest, and Identification of Defendant
Officer Jimmy Kwan heard the broadcast concerning the shooting and began to drive toward the area with his lights and siren on. He heard supplementary reports indicating that the persons responsible could be in a dark-colored Honda or Acura. Two to three minutes had elapsed since the initial broadcast, and Kwan was close enough to Tiffany and 12th Streets to believe that the vehicle could be in the area, so he began looking for a vehicle matching the description. Kwan then saw a dark-colored Honda or Acura waiting at the red light on Airport Way at the intersection with Dr. Martin Luther King, Jr., Boulevard. The vehicle proceeded north on Airport Way, and Kwan let it pass. He could see at least two people in the vehicle. Kwan reported the license plate to the dispatcher and he began to follow the vehicle with his lights and siren still on. The vehicle pulled over towards the side of the road, but did not stop. Kwan observed another officer's patrol vehicle with its lights on traveling south on Airport Way make a U-turn and pull behind Kwan's vehicle. The Acura accelerated and the two patrol cars pursued. The Acura was traveling at approximately 50 miles per hour and accelerating, and was not stopping for stop signs or traffic lights. Thereafter, the Acura accelerated to approximately 80 miles per hour, crossed the cement divider, and continued driving north in the southbound lane against oncoming traffic. Kwan testified that the other patrol vehicle lost a tire crossing a center divider. After some time, the Acura crossed back onto the northbound lanes and continued, and subsequently crossed onto the opposite lanes again. The Acura made several turns as Kwan attempted to catch up to it. At some point, Kwan lost sight of the Acura. After several seconds, Kwan reacquired the Acura, and saw that the passenger-side door was open and only one person remained in the car. The Acura continued driving through a residential area at 50 to 60 miles per hour. At some point, the Acura lost a rear tire, and Kwan's patrol vehicle also lost a tire. Realizing that his vehicle was compromised and anticipating the possibility that the Acura and his patrol vehicle could collide with other vehicles or pedestrians, Kwan decided to "use vehicle intervention to stop him." Kwan hit the Acura with his patrol vehicle's bumper a couple of times. The impact caused the Acura to swerve to the right, the vehicles’ bumpers became locked together and they eventually came to a stop.
Defendant was apprehended. During the arrest, a canine officer was deployed to help subdue defendant. Defendant suffered a dog bite to the buttocks and other injuries.
We discuss additional circumstances of defendant's arrest in our discussion of his Pitchess motion, post .
Kwan searched defendant and found a glass pipe of the type typically used for smoking methamphetamine. Defendant did not have a gun. Kwan learned that defendant lived across the street and a few houses down from where the pursuit ended.
Police brought M.M. to the location for a showup. M.M. testified she told police that the person was not the person she had seen. According to Officer Mark Sandberg, who transported M.M. to the showup, she thought the person she had seen was lighter skinned and she thought he was wearing a different color shirt, so she was unsure. M.M. testified that she also observed a car nearby, which she told police was not the car because it was not as dark as the car she had seen. However, according to Sandberg, upon observing the vehicle, M.M. said "that was the car."
N.V. was also brought to a location for a showup. She testified that she told police the person they detained was wearing clothes that looked like the person she saw, and that the car looked like the car that had sped away following the shooting. However, N.V. testified that she did not identify the individual because she had not seen what he looked like. According to Detective Eduardo Rodriguez, N.V. identified defendant as the person she saw earlier and also identified the car as the one she had seen. Police Interrogation of Defendant
Detectives Brian Fry and Chuck Harris interrogated defendant following his arrest. The interrogation was recorded and the video was played for the jury. Early in the conversation, Harris asked defendant if he was okay and defendant complained of pain to his buttocks. He remarked that he did not know "why they let the dog bit[e] me." Defendant stated he was not running or resisting. Our review of the video recording reveals that defendant did not appear to have a hard time sitting throughout the interrogation.
The trial court instructed the jury to "accept the video version rather than what's on the transcript because it's subject to typographical error." We have reviewed the recording and we have set forth in this opinion what was said based on our own independent review and not based on the transcript in the record, which was admitted into evidence.
Harris explained he wanted to hear defendant's point of view and asked where he was coming from. Defendant said he had been going home from his girlfriend's house near Airport and 10th Streets in the Acura he shared with his brother. Near a park, defendant picked up a male Hispanic acquaintance he only knew as "K" and whom he had only known a week. They had previously smoked crystal together. Defendant said he was on parole, had missed a drug court date and had a warrant out for him, so when police flashed a light on him, he decided not to stop. Believing that he would be arrested anyway, he decided to continue to his house to see his father, who was getting older. He also did not want his brother's car to be towed. At some point, K jumped out of the car and took off. As defendant arrived at his house, the officer chasing him ran his car into defendant's car.
Defendant said he had been on parole for auto theft.
When asked by Harris if he had experienced any problems with anyone during the course of the day, defendant stated that he had not. When asked if anyone had a problem with him, defendant responded that his brother's car had been vandalized a couple of months earlier. All of the windows were broken. Defendant explained that he was "hella mad" about that and filed a police report. When asked why he thought the police might have decided to stop his car, defendant stated that his license plate tags had expired.
Asked whether he was in any gang, defendant responded that he was not, but said his cousin used to be in a gang. He said he could not recall the name of the gang, but, when Harris asked if it could be HNS, defendant responded that it could be. Defendant denied having any gang tattoos.
Earlier in the interrogation, defendant volunteered: "I'm going to be honest with you guys. I've been doing drugs. I don't really have [a] good memory." He said sometimes when he uses drugs, he does not remember things he did. When later Harris asked defendant if he recalled driving around the area of Tiffany and 12th Streets, defendant stated that he did not. Harris then encouraged defendant to "think really hard" about it because "something happened over there and ... I need things from your point of view." Harris said officers had talked to people who saw defendant's brother's car there. Defendant responded, "My brother's car was there?" Harris then told defendant that the city had brought back city surveillance cameras and these cameras were all over Stockton. He stated that there were people monitoring the cameras, and continued: "they definitely saw what a couple other people saw. They saw ... your car. There in the same area.... when some stuff went down. And if there was any reason that you would have been over there like maybe you took your friend ... over there ... to ... help him pick something up. To drop him off so he could talk to somebody ... it's really important that I know that. Because that would be a good reason as to why your car would even be seen in that area." Defendant stated that he might have driven around the area. Defendant referred to someone his girlfriend knew in the area who would bring drugs. Harris told defendant that it was really important for defendant to remember whether he was in that area on that afternoon, and assured defendant he was "not here to knock you on the drugs ... I don't care." Defendant stated that he did not recall.
Harris told defendant that he had looked at the surveillance video, saw defendant's car and described it, and saw defendant get in the car and there was another individual in the front seat. Harris then told defendant that, while the city cameras record video, they do not record audio. He said the camera "doesn't lie about anything. It just ... shows the picture. But the words are what's important." Harris indicated he would have to rely on defendant and everybody else to determine what was said and everything that happened off camera. Harris went on to state "the reason I'm asking about that place? ... [T]hat intersection. Is because some stuff went down. And ... things got out of hand but I don't know why they got out of hand." Harris stated that the video showed defendant and his friend getting out of the car and talking to someone. However, with no audio, Harris did not know what was said. Harris told defendant "that's the part that I need you to fill in." He continued, stating that defendant "talked to some guy that was pretty much in the front yard." Defendant responded: "Really?" and "I talked to some guy in a front yard?" Harris said: "I don't know what that whole thing was about" and defendant responded, "I don't recall it. ... let me think." Harris offered: "I'll give you as much time as you need man. Whatever you need. Because, this is ... important." Defendant responded: "Can I ask you what happened? Cause I don't recall it." Harris responded: "Sure. Well ... like I said I don't know what was said." He then explained where the camera was located and said: "So, your car is going to be parked somewhere over here on the street. In the video I see the guy that you ... call K and then ... I see you and I see this guy kind of right here. ... So it's like you guys are kind of standing in a triangle. That's what the video [is] showing me.... [S]o it shows you guys get out and walk up. And then you guys say something to this guy. Or he says something to you. And then ... looks like some physical thing kind of breaks out ... he got the worst of it.... Which isn't bad, it's not a big deal. [B]ut he got the worst of whatever happened. But I don't know what happened. But I don't know what caused what happened. That's the thing." Defendant asked: "What happened?" Harris responded: "See that's what I don't know. [A]ll I know is kind of got ... the shit beat out of him. Is what it looked like." Defendant responded, "He got beat up?" And Harris said, "Well not really beat up but just ... kind of. I don't know how to describe it. Kind of like ... he got the worst end of it. [R]emember when I asked you if you? When is the last time you held a gun? Or had anything ... like, went to a shooting range or had a friend that showed you a gun or anything like that? Because when we looked at this, we look at this video camera because it's a perfect angle. There's no trees or anything. And it looks like there's something in your hand. And so that's why I don't know if it was ... you know a hammer. If it was a bat. If it was a knife ... it wasn't big enough to be a bat though." Harris then stated that "from looking at the camera ... it looked like it could have been a gun. Or a bigger knife. [T]hat's basically what it looked like to me. All I know is like some commotion goes on right here.... All of a sudden this guy goes down."
Harris then told defendant that the guy was in the hospital, and that he was "going to be ok" and "[h]e's going to be fine." Harris told defendant: "this stuff isn't a huge deal and when he gets better and everything goes to court ... we're all going to sit around and we're going to tell ... what happened. Like ... your story, his story." Harris encouraged defendant to tell his side of the story to help himself out. Defendant stated: "I don't recall that" and continued, "So, now you got to tell me, tell me in detail see if I remember?"
Fry then interjected: "Ok Yor, check this out ... ..[T]his isn't your first time talking to police." Defendant responded: "I know." Fry then said: "[M]y partner is I believe gone above and beyond ... staying on the right side of not being disrespectful. Treating you with the u[t]most respect, ok. You've dealt with some dick head cops. You've dealt with some today ... haven't you?" Defendant agreed. Fry stated: "They didn't have to go as far as they did? Did they?" Defendant again agreed. Fry told defendant, "Ok, they didn't.... [I]f we wanted to we can have you sit there in handcuffs, with a dog bite on your butt," and "Just point our fingers at you and just disrespecting you. It's not the way we do business." Fry continued: "[Y]ou're looking probably the two most easy going cops you're going to find." Fry then stated: "So, what we are trying to do in this whole thing and we can go on for hours and hours and hours. Ok. Is give you an opportunity, show you some respect by give you an opportunity to tell your side of the story. Ok. There are two sides. Two sides to every coin. Two sides to every story. We've got one. You're a smart man. You are even more street smart than probably we are."
Fry then told defendant, "What we don't want for you is you[‘re] sitting there [in a courtroom] and you have that guy get up and tell his side of the story about what happened. Tell a bunch of lies. And then on a piece of paper that he's going to write, we have a bunch of ... I don't know, I can't remember. And yeah, drugs do crazy things to you." Frye continued: "What you're trying to do is see what we have. How much we know." Defendant denied that he was doing that and said: "I really don't remember sir.... I need to refresh my memory but I don't recall." Frye explained that they had done their "homework" and told defendant "if we came in here. And gave you everything that we know, what's left for you to tell us? You know what I'm saying?" Defendant indicated he understood. Fry continued: "So what we're doing is ... we're seeing if you're going to tell us anything. So far, everything's been I don't know." Frye then explained: "if we're going to walk this journey together, then we need to walk it together not us leading you down a path. Something happened." He explained that whatever happened could be understandable, but the camera did not "tell us why." Defendant responded: "I understand." Harris then told defendant, "Only you can tell us why" and defendant responded, "I know." Harris then asked: "So why did this happen? From your point of view. From your words. From your heart." Defendant responded: "My point of view?"
Defendant then volunteered he did not know who or why someone vandalized his car. He said his girlfriend saw who vandalized the car. Defendant emphasized that he had proof that his car had been vandalized. He then stated that, when he is at his girlfriend's house, "there's always people ... trying to walk up on me ... and creep up on me ...."
Defendant then stated that he went with his girlfriend to buy cigarettes at a market the previous night, and there he saw the person. Defendant's stepson was in the car. The guy "mean mugged" defendant and "stuck his hand in his pocket like, like he had something. Like something, he was going to do something." But there were "too many people" around. Defendant told the detectives: "So what that tells me is is this guy the guy who vandalize my car and try to kill me." Defendant said he thought the guy was going to shoot him, but he claimed he wanted to talk to the guy. He continued: "And when I confronted him, he told me what you going to do about it? I did what he was [unintelligible] going to do, but he didn't finish the job."
When asked about seeing the victim on the day of the shooting, defendant explained he was arguing with his girlfriend in the house when he saw the same guy walk by outside looking at his car and looking at the house. Defendant said he felt the guy was stalking him. Defendant went outside and the guy was gone, but defendant saw K down the street, and talked to him. He knew K would have a gun. Defendant told K he saw the guy, and K said he would go with defendant. Defendant and K got in the car. Defendant asked K, "You got a strap on you? Let me hold it. Let me get it in case you know ... in case, if he pull, if he start acting stupid and acts like he's going to pull one, you know." They saw the guy approximately a block and a half from defendant's girlfriend's house. Defendant said he parked the car "like exactly what you said the camera sees," and went to confront the guy. Defendant, who was holding the gun, asked him "nicely" why he looked at defendant like he was going to shoot defendant the day before. The guy said, "[W]hat you gonna do about it? You catch me slippin’ you ain't doing nothing?" Defendant then said to the detectives: "Ok I'll do, do my job. You know."
Fry asked defendant how many times he fired the gun and defendant replied: "I don't recall it. I'm being honest with you." He continued: "I'll be honest with you, I don't recall how many times ... how many bullets, was in that gun and how many shots were fired. I just remember pulling the trigger and my ear was sting ... .." Defendant told the detectives, "[Y]ou don't have to believe me. But I have, ... a vandalize everything record," and he said he had given his parole agent a copy. Fry explained they already knew about the vandalism and when they asked earlier if somebody had a beef with him or his family, they just wanted to see if defendant would tell them.
Fry asked if the victim fell down, stood up, or said anything, and defendant replied, "I'm going to be, ... honest with you. I was in shock when I ... pull the trigger. I don't remember what happened but I know I pulled the trigger." The next thing defendant said he remembered was getting in the car and driving away.
Defendant said he drove away from the scene slowly, "like an old person would dr[i]ve," like nothing happened. When police started following him defendant decided he needed to see his father, and he wanted to be sure his brother's car did not get impounded. Defendant said K left the car when one of the car's tires popped during the pursuit. Before leaving the car, K told defendant to give the gun back, saying "I'm not going to jail with you." Defendant believed that K took his gun with him.
Defendant explained that he had woke up on the wrong side of the bed that day. And the victim had been causing problems. Defendant further explained that when he went looking for the victim, it was his intent to confront him and "if he's a real man, we box." Fry asked defendant if, when he went looking for K prior to the shooting, he did so because he knew K would have a gun. Defendant replied that was not the reason. Rather, defendant just wanted K to watch his back when he confronted the victim in case the victim had a gun, "[s]o he knows it's actually who, who he is."
The detectives offered defendant some pizza and left the room. Defendant sat there for a short while, put his head in his hands, then looked up and said something to himself that sounded like, "Don't matter [unintelligible]." Our review reveals that defendant immediately and clearly said thereafter: "I'd rather be a man and step up to the plate than be a punk about it." The detectives brought defendant pizza, and after defendant finished, the detectives reentered the room and the interrogation resumed. Fry encouraged defendant to disclose more information about K, stating that, without K, the detectives were faced with a "he said, he said," situation between defendant's statements and the victim's. Fry suggested that the victim could recover and refute defendant's account of the events, saying, "What if he says that guy[’]s crazy. I was walking my dog skipping along the streets." Defendant immediately corrected Fry by responding: "[T]here was no dog."
In the transcript, the entire conversation defendant had with himself is noted as "unintelligible," and some of what defendant said at this point is hard to understand, but we can clearly hear him say, "I'd rather be a man and step up to the plate than be a punk about it."
When Fry asked defendant if K was involved with a gang, defendant responded: "Why was the guy ... a gang member?" Fry subsequently said, "[Y]ou asked a[n] interesting question. You said ... was that guy in a gang? [T]he guy that you got the confrontation with." Fry then asked: "Did you think he was in a gang?" Defendant responded: "I don't know. He was wearing red right?" Defendant then said, "I don't know," and "If he's in a gang well, I don't know. I don't know what I've gotten myself into." Defendant later asked if the guy was a gang member, and the detectives stated that they did not know. When Fry asked whether the victim was Hispanic, Asian, or Black, defendant responded that he was Asian, specified that he "looked [Hm]ong," and then stated, "Yeah he's [Hm]ong because I talked to him in [Hm]ong."
Before the detectives left the room, Harris thanked defendant for being honest. Defendant replied: "Thank you." He shook both detective's hands. Immediately after the detectives left the room, defendant can be heard to say to himself, "You know I'm doing right. At least I'm speaking with the truth. Life is going to hurt."
In their trial testimony, both Fry and Harris acknowledged that there were no city surveillance cameras at the location of Tiffany and 12th Streets as represented by Harris during the interview. Instead, prior to interviewing defendant, Fry and Harris had learned information from witnesses and officers at the location of the shooting. Harris acknowledged that he intentionally lied to defendant during the interview. Harris used this technique because he did not believe defendant was being truthful when defendant responded, "My brother's car was there?" after Harris said people had seen his car in the area.
Autopsy Evidence
The victim sustained six gunshot wounds and no other injuries. Four gunshot wounds were to the torso area, including the right arm, right buttocks, right back near midline and penis. The gunshot wound to his right arm traveled into his chest lacerating major blood vessels close to the heart. The gunshot wound to the right back travelled upwards, perforating the right lung and exited out of the right chest.
Two of the gunshot wounds were to the head. One entered the upper right neck near the scalp, traveled downwards through the neck, transected the spinal cord and fractured vertebrae. This wound would have resulted in spinal shock causing the victim to become immediately unresponsive. The other was a graze wound. A cluster of abrasions and lacerations to the scalp and miniscule bullet fragments recovered therefrom indicated that the bullet that caused the graze wound impacted a hard surface and shattered near the victim's head and ricocheted back into the victim's scalp, suggesting the victim's head may have been close to the concrete when that bullet wound was inflicted. Gang Expert Testimony
Detective Richard Slater, assigned to the Gang Violence Suppression Unit, testified as a gang expert, specializing primarily in Asian gangs. Slater testified that the victim was a documented gang member. According to Slater, a tattoo on the victim's back, which read "MOD," could stand for the gang Masters of Destruction or Menace of Destruction. According to Slater, in Stockton, MOD was a primarily Hmong gang which "could fall under a Blood gang, they associate with the color red." At the time he was shot, the victim was wearing a red shirt and a red cap.
Slater testified that MOD and HNS, or Hmong Nation Society, were rival gangs. HNS was a criminal street gang and a Crip set associated with the color blue. As of the time of trial, HNS had approximately 10 validated members. According to Slater, the primary activities of HNS included homicide, firearms violations, assault with a deadly weapon, robbery, burglary, and fraud. Slater documented defendant as a validated member of HNS based on the facts of this case, prior contacts, statements defendant has made to law enforcement, and who he was with during an arrest in 2006. Slater further opined that defendant shot the victim for the benefit of, at the direction of, or in association with HNS. According to Slater, defendant would have been "getting rid of the rival."
In the unpublished portion of this opinion post , we discuss in more detail Slater's testimony concerning the basis for his opinion about defendant's gang membership.
Slater explained that, to be "caught slipping" means to be caught without a firearm with which to protect one's self against a rival; "you're caught out in the open with no way to defend yourself."
Slater noted that defendant was purported to have said to the victim, "Fuck you, cuz, that's for fucking with my family." Slater explained that if a Crip gang member calls a Blood gang member "cuz," that can be a derogatory, disrespectful statement that can lead to an altercation. Consequently, he construed defendant's remark to the victim as derogatory and gang-related. (3 RT 890) Slater also testified that "mean mugging" is staring at someone in a derogatory manner, and that it is very disrespectful for a gang member to "mean mug" a rival gang member. If a gang member "mean mugs" a rival gang member, that usually serves as a call for the rival gang member to do something about it.
Asked whether defendant's statement -- "Well, he was wearing red, right?" -- had any relevance to Slater, he responded, "Yes, he knew that he was a gang member."
Defendant's Case
Defendant testified. He said he was addicted to methamphetamine and had been using for approximately eight or nine years. He had been to rehab programs, but had not been successful in quitting. Defendant acknowledged that he had previously been convicted of a felony and testified that he was on parole and, on the day he was arrested, he knew he had an outstanding warrant for failing to go to drug court.
Defendant testified that he was in his car with K at the intersection of Dr. Martin Luther King, Jr., Boulevard and Airport Way waiting for the traffic signal to change. When the light changed, defendant drove through the intersection. A police car then came up behind him with its lights and siren on. Defendant drove to the side of the road so that the police car could pass him. When the police car remained behind his car, defendant thought he was going to be arrested for his expired vehicle registration and the outstanding warrant, so he drove off. Defendant sped up and the police car pursued him. Defendant figured he was going to jail regardless. He intended to get home to see his father for a moment before being taken into custody. He also hoped that if he made it home, his brother's car would not be impounded.
Defendant acknowledged that when he was fleeing from the police, he was driving anywhere between 60 and 80 miles per hour on Stockton surface streets and that he disregarded stop signs and red lights. He also acknowledged driving on the wrong side of the roadway. Defendant made a turn and briefly lost control of his car. He slowed down for a moment, and, at that point, K got out of the car, exiting through the sunroof. The pursuit ended when defendant arrived across the street from his house.
After defendant stopped, officers pointed their guns at him. Kwan ordered him to the ground and to place his hands over his head. Defendant testified that he complied without resistance and Kwan handcuffed him. While being handcuffed, defendant felt an impact on his head and shoulders. He then felt a sharp pain on his buttocks and thigh. Police then placed him in a police car. Defendant testified about the various injuries he sustained during the arrest, including the dog bite.
Defendant went on testify that, approximately 30 minutes after being given Vicodin at the hospital where he was treated for his injuries, he was taken to a police building. He told the jury he was feeling "very light and dizzy and tired." Defendant was then interviewed by Fry and Harris. He had not been informed, and did not know, he was a suspect in a shooting. He thought detectives wanted to talk to him about why he drove away from police.
Defendant testified that he did not know what Harris was talking about when Harris told him that his brother's car had been seen near Tiffany and 12th Streets. He testified that the car had not been at that location that day. Defendant also said he did not know what Harris was talking about when Harris said he saw defendant and another individual approach a third person, something going down, and the third person getting the worst of it. Defendant testified that he and K had not been involved in any confrontation with anyone at that location. He also testified that he was not in possession of a gun and he did not see K with a gun. He denied shooting the victim.
When asked why he did not tell the detectives that there was a mistake, that it was not him at that location, defendant responded: "Because I was afraid of them. I only answered and told them that I didn't remember." When Fry told defendant that "this could go on for hours and hours and hours," defendant understood that he meant that the interview would go on for hours "until [defendant] told them what they wanted to hear." When Fry said "they could be assholes like the cops before and have you in handcuffs and sitting on your dog bite," defendant took this to mean, if he did not do what Fry asked, "that he could also do what they did to me."
Defendant testified he then began to talk to the detectives about the guy who mean mugged him at the store the night before, which had actually happened. However, he claimed when he told the detectives that he saw the same person in his girlfriend's neighborhood the next day, that was not true. Nor was it true that defendant went out looking for the guy, or that he enlisted K's assistance in looking for him. Defendant testified he did not ask K if he had a gun. Defendant did not see the individual on the street, and he did not confront him. Defendant acknowledged telling Fry, who asked which hand he held the gun in, that it must have been his right hand because he was right-handed. Defendant testified that this was not true, and that he was making up a story that sounded good. Defendant further testified that he did not speak to the victim in Hmong, and, in fact, he never spoke to him at all.
When asked why he said all of these things, defendant responded; "I was afraid. I was afraid of them. And they told me a story, so I just added to the story. I added to the story because I was afraid of them and I wanted the story to sound good." When asked what he felt after the detectives stopped asking him questions, defendant responded: "I felt that after they asked me and I had told them the story that they wanted me to tell them, and they said that the victim was not dead, so I thought that when he recovers and he comes and look at me, he'll say that it wasn't me who shot him, it wasn't me who confronted him."
Defendant gave an explanation for why he responded to the detectives’ question about whether the victim was in a gang with, "Well, I don't know. He was wearing red, right?" He said that "[b]ecause in the area where my girlfriend lives, there was a lot of gang activities. There's a lot of gangsters. And most of the gangs consist of blue and red. But there was a lot more red, so I mentioned that, because I sort of think that could be." Defendant testified that he did not know whether the victim wore a red hat or a red shirt. He said he did not know the victim at all, and had never seen him.
On cross-examination, defendant testified that the following things he told Harris and Fry were lies: that the day he was arrested, he saw the person who had mean mugged him the night before; that he got out of his car on 12th and Tiffany, walked up to the guy and confronted him about what had happened; that he spoke to the victim in Hmong; that the victim said to him, "Well you caught me slippin’. What are you [g]oing to do about it"; that he shot the victim; and that he got back into his car and drove away. He said the following things he told the detectives were true: that he had had an argument with his girlfriend earlier; that he fled from the officers at a high rate of speed; that K jumped out of the car; that he had been mean mugged by a guy with a ponytail at the liquor store the previous evening; and that his car previously had been vandalized.
Defendant introduced evidence that no gunshot residue was detected on hand samples taken from him.
Dr. Richard Leo, a Professor of Law at the University of San Francisco, testified as an expert in false confessions, interrogation techniques including psychologically coercive interview tactics, unreliable statements, and the distinction between interviews and interrogations. Dr. Leo reviewed, among other things, the recorded interrogation by Harris and Fry.
Dr. Leo testified that a danger of confronting a suspect with false evidence during an interrogation is that it can increase the risk of eliciting a false confession from someone who is actually innocent. Three groups of people have been identified as being particularly susceptible to making false confessions: juveniles, people with cognitive impairments and low IQs, and people with "mental illnesses or what is sometimes called reality monitoring disorders." Dr. Leo also testified that there could be other factors that may make someone more vulnerable to giving false confessions, including intoxication and cultural reasons. Cultural reasons include cultural teachings that it is disrespectful to disagree with authority or "where people are afraid that because of where they come from, if you don't do what you're told you will be tortured." Additionally, some individuals simply have very suggestible or compliant personalities.
Dr. Leo testified that among the materials he reviewed in preparation for his testimony was a report by Dr. Daniel Lee, a clinical psychologist. Dr. Lee opined that defendant has a "compliant personality." Dr. Leo explained that compliant personality "refers to submissiveness or acquiescence, people who tend to do what they are told, follow orders, not resist, not rebel, kind of go along with what people are saying, particularly authority figures."
Dr. Leo also testified that there is a danger related to "contamination" in an interrogation or transference of nonpublic information concerning a case. If nonpublic case information is communicated to the subject, there is a danger that an innocent person who confesses falsely will incorporate the details communicated into their confession, rendering their false confession more persuasive and adding a degree of verisimilitude. He testified that police are trained not to contaminate suspects with non-public facts, rather police "let them supply it." Dr. Leo did not identify an example of contamination in defendant's recorded interrogation. On cross-examination, Dr. Leo acknowledged that the detectives did not mention that the victim was wearing red clothes. He also acknowledged that the fact that defendant knew the ethnicity of the victim might be an indicator of reliability. Dr. Leo explained that "[i]f somebody possesses personal knowledge of non-public crime facts that are not likely guessed by chance, were not fed to them by the police, or they didn't learn from [the] media or community gossip or some other source, and these are truly unlikely guessed by chance, that would be indicia that the confession or statement is reliable because it reveals personal knowledge. Exactly what the police training manuals say."
He noted that another way to determine reliability is to look to whether the statements fit the "crime facts" and physical evidence. A wrong guess could be indicia of unreliability, except when there is a motive for the suspect to get the fact wrong.
Dr. Leo testified that the incorporation of false evidence and the use of coercive interrogation techniques appear in a high percentage of proven false confession cases. According to Dr. Leo, one type of false confession is "compliant," where the individual is so worn down and psychologically distressed by interrogation that he or she just wants to get out of the interrogation room and end the pressure being exerted. Such individuals will make up or agree to a story they know to be false just to put an end to the interrogation.
When defense counsel asked Dr. Leo, based on his review of defendant's recorded interrogation, whether he had an opinion on whether coercive techniques were used during defendant's interrogation, Dr. Leo testified, "I don't know whether coercive techniques were used, but ... I think that it's possible that [defendant] felt coerced by the interrogation." He further testified "I didn't see a lot of classic coercive techniques, but the defendant may have experienced, nevertheless, that what did occur, given his particular background or perception, as psychologically coercive." Dr. Leo also identified a number of the interrogation techniques used by the detectives here, including: accusations, challenging defendant's statements and lack of response, contradicting his claims that he did not remember details, confronting him with false evidence, minimizing his culpability to incentivize admissions, and downplaying the seriousness of his involvement and the consequences. But he acknowledged that the "kinds of threats and promises that you often see in interrogations that are clearly psychologically coercive were not present here." He testified that the technique that stood out in defendant's interrogation was reference to false evidence, but he also acknowledged that law enforcement is permitted to confront suspects with false evidence during an interrogation. Dr. Leo also agreed that suspects sometimes ask the officers for information, and further acknowledged that defendant asked the detectives for details, although he said that "might be a little different than show me your cards." When asked about defendant's repeated requests that the detectives refresh his memory, Dr. Leo agreed that this conduct could fall into the category of "show me your cards, what have you got against me," but also testified, "it could be the person, as you see sometimes in false confession cases, can't confess because they don't know the details."
Dr. Leo conceded that most confessions are probably true. On cross-examination, the prosecutor asked, "you ... agree that specific facts that fit logically and that fit the extrinsic evidence of the case would indicate or would be an indication that it's probably true as opposed to a false confession?" Dr. Leo responded, "[A]bsent contamination and the degree to which it's not likely guessed by chance, correct."
Verdict and Sentencing
The jury found defendant guilty of murder in the first degree (§§ 187, subd. (a), 189), and found true the enhancement allegation that, in committing murder, defendant personally discharged a firearm causing the victim's death (§ 12022.53, subd. (d)). The jury also found defendant guilty of possession of a firearm by a felon (§ 29800), and felony evasion ( Veh. Code, § 2800.2, subd. (a) ). The jury deadlocked on the gang enhancement allegations, and the trial court granted the prosecution's motion to strike those allegations.
The jury was apparently not asked to consider the firearm use allegation charged under section 12022.5, subdivision (a), and the trial court struck that enhancement on the day of sentencing.
The trial court sentenced defendant to 50 years to life plus two years eight months, calculated as follows: 25 years to life on count 1, murder in the first degree, plus 25 years to life for the personal use of a firearm causing death enhancement; the upper term of three years on count 2, possession of a firearm by a felon, with execution of that sentence stayed pursuant to section 654; eight months (one-third midterm), on count 3, felony evasion, and two one-year terms for prior prison term enhancements pursuant to section 667.5, subdivision (b). DISCUSSION
I. Defendant's Cultural Perceptions of Law Enforcement
A. Additional Background and Defendant's Contentions
Defendant testified that he is Hmong. His parents were from Laos, and he was born in a refugee camp in Thailand. He testified that he came to the United States when he was seven years old.
Regarding his experience in the refugee camps, defendant's trial counsel attempted to elicit defendant's understanding of a person's ability to deny allegations made by police officers in the refugee camps. The following is from direct examination:
"[DEFENSE COUNSEL:] [D]id you ever have any dealings with the [police] officers ... in the refugee camp?
"[DEFENDANT:] No. Me personally, I have not dealt with them. But I have seen them punish other people and attack other people.
"[DEFENSE COUNSEL:] Now in terms of police officers in the refugee camp, what was your understanding, if any, about being able to say no or deny an allegation by them?"
The prosecution objected and counsel for defendant requested a bench conference. The trial court sustained the objection "as calling for a conclusion."
Defense counsel proffered: "My client has testified before concerning why he didn't respond or why he did respond the way that he did to the allegations made by the officers during the interview, and which he never denied it, but he merely claimed a lack of recollection. And I would offer his testimony to establish that that is a cultural thing that he learned growing up in the refugee camp." The trial court again ruled, "I am sustaining the objection as calling for a conclusion."
It appears that defense counsel's comment about defendant's prior testimony referenced testimony defendant gave in an Evidence Code section 402 hearing, which was held to determine the voluntariness of defendant's recorded statement. In that hearing, defendant testified about how he was injured by officers during the arrest on the instant charge and that he feared the police as a result. He testified that instead of denying accusations during the interrogation, he repeatedly stated he did not remember because he was afraid of the police. He believed that if he refused to answer the detectives’ questions, they would "beat [him] again like they did." He did not, however, testify about his experience in the refugee camps.
Defendant asserts that the trial court abused its discretion by excluding his testimony concerning his understanding of a person's ability to deny accusations leveled by police officers in the refugee camps. Defendant asserts that his understanding of whether a person could say no to officers in the refugee camp or deny allegations made by them was relevant to his contention that admissions he made during the interrogation with Harris and Fry were false and that he made those statements because he was afraid not to go along with the detectives’ narrative. Defendant contends that, contrary to the trial court's determination, this evidence did not call for a conclusion, but rather for his understanding and mental state during the interview with the detectives, which were informed by his experiences in the refugee camp. According to defendant, this excluded evidence constituted circumstantial evidence of his fear of police officers and his conduct during the interrogation, and it would have supported his credibility as to why he made false admissions to the detectives. We agree, but as we shall explain, the refusal to allow this testimony was harmless.
B. Relevance Principles
"No evidence is admissible except relevant evidence." ( Evid. Code, § 350.) " ‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." ( Evid. Code, § 210.) " ‘ " ‘The test of relevance is whether the evidence tends, " ‘logically, naturally, and by reasonable inference’ to establish material facts." ’ " ’ " ( People v. Richardson (2008) 43 Cal.4th 959, 1001, 77 Cal.Rptr.3d 163, 183 P.3d 1146.) "[T]he court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony ...." ( Evid. Code, § 780.) An appellate court reviews a trial court's decision to exclude evidence for abuse of discretion. ( People v. Peoples (2016) 62 Cal.4th 718, 745, 198 Cal.Rptr.3d 365, 365 P.3d 230.)
C. Forfeiture
The People assert that defendant forfeited this issue because trial counsel did not make a sufficient record or object to the trial court's ruling on the grounds defendant asserts here. We disagree. It is true that " ‘[T]o preserve an alleged error for appeal an offer of proof must inform the trial court of the "purpose, and relevance of the excluded evidence ...." ’ " ( People v. Valdez (2004) 32 Cal.4th 73, 108, 8 Cal.Rptr.3d 271, 82 P.3d 296 ( Valdez ).) Here, defense counsel attempted to elicit testimony from defendant concerning his understanding of whether refugee camp residents could say no to officers in the camp or deny allegations made by the officers. Defense counsel referenced defendant's prior Evidence Code section 402 hearing testimony and asserted that defendant's understanding of this matter was "a cultural thing that he learned growing up in the refugee camp." We conclude that this was sufficient to preserve defendant's contention for appellate review. (See generally Valdez , at p. 108, 8 Cal.Rptr.3d 271, 82 P.3d 296.) D. Analysis
Defendant contends he was denied constitutionally effective assistance of counsel based on the way counsel handled this issue. We note that defense counsel's offer of proof after the prosecution's objection to defendant's testimony may have been more persuasive had he explained on the record the specific answer he anticipated defendant would give and connected defendant's answer to Dr. Leo's proposed testimony concerning how cultural experiences might produce false confessions.
We also note that prior to trial, defendant moved to introduce Dr. Leo's testimony concerning "the phenomena of false confessions." The trial court reviewed the written submissions and heard argument, but postponed ruling on that in limine motion until the end of defendant's case-in-chief based on People v. Ramos (2004) 121 Cal.App.4th 1194, 1207, 18 Cal.Rptr.3d 167. The court later allowed Dr. Leo's testimony based on defendant's trial testimony. In his brief in support of the in limine motion, defendant indicated that Dr. Leo reviewed Dr. Lee's report. As part of Dr. Lee's evaluation of defendant, Dr. Lee "determined the following: [Defendant] was born in the Ban Vinai Refugee Camp in Thailand and lived in various refugee camps until he reached the age of eight or nine; that [defendant] perceived the camp guards as authoritative figures who were not to be questioned and with whom a refugee camp resident was not to disagree at the risk of being jailed, beaten or disappeared; that [defendant] possessed the same perception and attitude toward authoritative figures, police officers in this case, as the residents at the refugee camp." (Italics added.) Presumably, the italicized text represented what defendant told Dr. Lee and approximates how he would have answered the question posed at trial at issue here. Defendant went on to state in his in limine motion that Dr. Leo would testify "why certain personality traits increase the risk that someone may give a false confession in response to police interrogation techniques." Based on the fact that the court had not yet ruled on whether it would permit Dr. Leo to testify and the court's ruling on the objection to defendant's testimony as reflected in the record before us, it appears that any further argument by trial counsel may have been futile. (See, e.g., People v. Price (1991) 1 Cal.4th 324, 387, 3 Cal.Rptr.2d 106, 821 P.2d 610 [counsel "does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile"].) In any event, even if trial counsel should have made a better offer of proof, we conclude post that defendant suffered no prejudice. Thus, defendant's alternative contention that he was denied constitutionally effective assistance of counsel fails. (Strickland v. Washington (1984) 466 U.S. 668, 688, 691-692, 104 S.Ct. 2052, 2065, 2066-2067 [80 L.Ed.2d 674, 693-694, 696] (Strickland ) [to prevail on a claim of constitutionally ineffective assistance of counsel, defendant must establish both deficient performance and prejudice]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218, 233 Cal.Rptr. 404, 729 P.2d 839 (Ledesma ) [same].) To show prejudice, defendant must show a reasonable probability that he would have received a more favorable result had counsel's performance not been deficient. (Strickland , at pp. 693-694, 104 S.Ct. 2052 ; Ledesma , at pp. 217-218, 233 Cal.Rptr. 404, 729 P.2d 839.) This is essentially the same standard applied in reviewing state evidentiary error under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243 (Watson ). (People v. Ocegueda (2016) 247 Cal.App.4th 1393, 1407, fn. 4, 203 Cal.Rptr.3d 233.)
We have found no published California cases addressing the issue presented here. However, we agree with defendant that the trial court erred in excluding the proffered testimony. This evidence was relevant to defendant's state of mind during the interrogation, how he perceived the detectives, and his conduct and responses during the interrogation, all of which was relevant to defendant's claim that he made false admissions based on fear of the detectives and his desire for the interrogation to end. (See generally Evid. Code, § 210 [relevant evidence]; cf. People v. Edwards (2013) 57 Cal.4th 658, 726, 161 Cal.Rptr.3d 191, 306 P.3d 1049 [state of mind evidence must be relevant].) "People learn from their experiences. Even when those experiences occurred long ago, the knowledge gained from such experiences can be retained and recalled in the future." ( People v. Hendrix (2013) 214 Cal.App.4th 216, 242, 243, 153 Cal.Rptr.3d 740 [holding that past experiences may be relevant to knowledge a defendant has at the time of the offense for purposes of Evidence Code section 1101, subd. (b), and establishing the knowledge element of the charged offense].) While the answer to the question posed to defendant may have called for a conclusion or an opinion, it was defendant's conclusion based on his life experience, and his opinion and perception had a direct bearing on his state of mind during the interrogation. Additionally, the jury could properly consider this evidence in determining defendant's credibility concerning his recantation of the interrogation admissions. ( Evid. Code, §§ 210 [relevant evidence includes evidence relevant to the credibility of a hearsay declarant], 780 [in determining the credibility of a witness, jury may consider any matter that has any tendency in reason to prove or disprove the truthfulness of the witness's testimony].)
We do not imply that such testimony is necessarily relevant in a pretrial suppression hearing on the issue of due process voluntariness, where the predicate to a due process violation is state action. (Colorado v. Connelly (1986) 479 U.S. 157, 164, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 ["Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law"].) Thus, absent police exploitation of a suspect's vulnerabilities, the mere existence of a vulnerability does not lead to a due process violation. (See id . at pp. 164-165, 107 S.Ct. 515 [absent police exploitation of the defendant's mental illness, there is no due process violation]; People v. Hogan (1982) 31 Cal.3d 815, 838, 183 Cal.Rptr. 817, 647 P.2d 93, disapproved on other grounds in People v. Cooper (1991) 53 Cal.3d 771, 836, 281 Cal.Rptr. 90, 809 P.2d 865 [statements were coerced by police offering help for defendant's mental illness, suggesting that defendant committed murder because of mental illness and the mental illness prevented him from remembering the crime].) Thus, in a suppression setting, the defendant's cultural experiences may be irrelevant unless the police exploited those experiences. (See People v. Guerra (2006) 37 Cal.4th 1067, 1098, 40 Cal.Rptr.3d 118, 129 P.3d 321, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151, 74 Cal.Rptr.3d 454, 180 P.3d 224 [in the suppression hearing, trial court properly excluded defense expert testimony about how defendant's experiences in Guatemala affected his understanding of the interrogation and defendant's testimony that he believed he had to submit to police questioning because in Guatemala, the police would torture or kill him if he did not cooperate; defendant's proffered testimony would only establish that his pressure "sprang from himself" and thus, as a matter of law, this did not involve state coercion and no causal link existed between defendant's internal pressure from his experiences with the Guatemalan police and any police activity in this case].) In any event, no state action or police exploitation need be proven when a defendant seeks to establish at trial that he was coerced or felt coerced in an effort to explain why he gave a false confession and/or why his statements were not reliable.
The People argue that under Evidence Code section 800, which pertains to opinion testimony offered by a lay witness, "a ‘lay witness generally may not give an opinion about another person's state of mind, but may testify about objective behavior and describe behavior as being consistent with a state of mind." However, the question defendant was asked on direct examination did not call for an opinion concerning the state of mind of any officer in the refugee camp or of any other camp resident concerning the officers in the camp; based on the record before us, defendant was going to testify concerning his own mental state and state of mind relative to officers in the camp based on his own observations and perceptions. When asked if he had personal dealings with police officers in the refugee camps, defendant responded, "No. Me personally, I have not dealt with them. But I have seen them punish other people and attack other people." He was then asked for his understanding about "being able to say no or deny an allegation by them," and the court sustained the prosecutor's objection to this question.
Evidence Code section 800 provides: "If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his testimony."
"A ‘ "lay witness may offer opinion testimony if it is rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony." ’ " ( People v. Dalton (2019) 7 Cal.5th 166, 231, 247 Cal.Rptr.3d 273, 441 P.3d 283 [child protective services worker's opinion that the murder victim whose body was never found loved her children and would not abandon them was based on the worker's personal observations of and conversations with the victim and was properly admitted].) Contrary to the trial court's determination, the answer to the question calling for defendant's understanding was not testimony that called for an improper opinion or conclusion. Rather, as we have said, this was evidence of defendant's state of mind, which, under the circumstances presented here, was relevant to the false confession defense.
We conclude that the preclusion of this testimony was error, but as we next discuss, the error was harmless. E. Harmless Error
1. Standard of Review
Defendant asserts that constitutional principles related to his right to present a defense and to a fair trial are in play here. He contends that the trial court's ruling deprived him of his right to present a defense, and, accordingly, the potential harmlessness of this error must be considered under the standard in Chapman v. California (1967) 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 ( Chapman ). However, if the error is simply one of state evidentiary law, then we apply the harmless error standard in Watson , supra , 46 Cal.2d 818, 299 P.2d 243. ( People v. Boyette (2002) 29 Cal.4th 381, 427-428, 127 Cal.Rptr.2d 544, 58 P.3d 391.) Accordingly, our harmless error review here requires that we: (1) determine whether a constitutional right was violated, and then (2) apply the appropriate harmless error standard depending on the answer to the first question. Thus, we first determine whether, as defendant asserts, the exclusion of defendant's understanding regarding refugee camp police violated his right to present a defense and thus his due process right to a fair trial. On this point, we find instructive Crane v. Kentucky (1986) 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 ( Crane ).
In Crane , the United States Supreme Court held that exclusion of testimony at trial of the circumstances of a defendant's confession relevant to voluntariness violated the defendant's constitutional right to present a defense. ( Crane, supra , 476 U.S. at p. 687, 106 S.Ct. 2142.) The state trial and appellate courts had held that evidence of the circumstances bearing on the issue of voluntariness was properly excluded from the jury trial because the issue of voluntariness had been decided by the trial court pretrial. ( Id . at pp. 686-687, 106 S.Ct. 2142.) Rejecting that conclusion, the high court reasoned that evidence concerning the circumstances surrounding the confession bears on the credibility of the confession, and noted that a defendant may "challenge the confession's reliability during the course of the trial." ( Id . at p. 688, 106 S.Ct. 2142.) In other words, the manner in which the confession is secured is "germane to its probative weight, a matter that is exclusively for the jury to assess." ( Ibid. ) The court further observed, "stripped of the power to describe to the jury the circumstances that prompted his confession, the defendant is effectively disabled from answering the one question every rational juror needs answered: If the defendant is innocent, why did he previously admit his guilt?" ( Id . at p. 689, 106 S.Ct. 2142.) The court went on to note that the "an essential component of procedural fairness" associated with due process "is an opportunity to be heard." ( Id . at p. 690, 106 S.Ct. 2142.) "That opportunity would be an empty one if the State were permitted to exclude competent, reliable evidence bearing on the credibility of a confession when such evidence is central to the defendant's claim of innocence." ( Ibid . ) Acknowledging the "traditional reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial courts" and "the power of States to exclude evidence through the application of evidentiary rules that themselves serve the interests of fairness and reliability," the court wrote: "we have little trouble concluding on the facts of this case that the blanket exclusion of the proffered testimony about the circumstances of petitioner's confession deprived him of a fair trial." ( Id . at pp. 689-690, 106 S.Ct. 2142, italics added.) The defendant was deprived of " ‘a meaningful opportunity to present a complete defense.’ " ( Id. at p. 690, 106 S.Ct. 2142, quoting California v. Trombetta (1984) 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 ( Trombetta ).) In remanding the matter to the state courts to determine whether the error was harmless, the Crane court cited Delaware v. Van Arsdall (1986) 475 U.S. 673, 680-681, 106 S.Ct. 1431, 89 L.Ed.2d 674, which applied the harmless error standard in Chapman, supra , 386 U.S. at p. 24, 87 S.Ct. 824. ( Crane , at p. 691, 106 S.Ct. 2142.)
Here, the issue presented is not the circumstances under which a confession or admission was obtained. Nevertheless, the excluded evidence was germane to the probative weight to be given to the confession by the jury. (See generally Crane, supra , 476 U.S. at p. 688, 106 S.Ct. 2142.) Thus, defendant's right to present a defense as to the credibility of the confession was potentially implicated. However, we conclude defendant was not deprived of " ‘a meaningful opportunity to present a complete defense.’ " ( Id . at p. 690, 106 S.Ct. 2142.)
In People v. Page (1991) 2 Cal.App.4th 161, 2 Cal.Rptr.2d 898 ( Page ), the court applied Crane and concluded that the exclusion of certain evidence did not deprive the defendant of a meaningful opportunity to present a complete defense. There, the trial court excluded aspects of an expert's proposed testimony concerning the reliability of the defendant's confession. ( Id . at p. 183, 2 Cal.Rptr.2d 898.) The proposed testimony fell into three categories: general psychological factors that might lead to an unreliable confession; the particular evidence in the defendant's recorded statements which indicated those psychological factors were present; and the reliability of the defendant's confession given the overall method of interrogation. ( Ibid . ) The court permitted testimony from the first category, but excluded testimony concerning the other two. ( Ibid . ) Like in many cases involving Crane , defendant challenged the constitutionality of the trial court's ruling, without challenging the state evidentiary basis. Addressing the claim that preclusion of the evidence violated the defendant's right to present a defense and his right to fair trial, the Page court found no constitutional error. ( Id . at pp. 184-185, 2 Cal.Rptr.2d 898.) It noted that the Crane court had concluded, "on the facts before it," that " ‘the blanket exclusion of the proffered testimony about the circumstances of [the defendant's] confession deprived him of a fair trial.’ " ( Id . at p. 185, 2 Cal.Rptr.2d 898, quoting Crane, supra , 476 U.S. at p. 690, 106 S.Ct. 2142, & Trombetta, supra , 467 U.S. at p. 485, 104 S.Ct. 2528.) But the Page court determined there were "obvious and important differences" between the case before it and Crane . ( Page , at p. 185, 2 Cal.Rptr.2d 898.) In Page , the trial court permitted the defendant and the prosecutor to thoroughly explore the physical and psychological environment in which the confession was obtained. ( Ibid . ) Additionally, the defendant testified and presented his own version of the interrogation, explaining in detail how his statement came about. The trial court allowed the expert to testify to the psychological factors which could lead to a false confession, and defense counsel made the connection to those factors in closing argument. ( Id . at p. 186, 2 Cal.Rptr.2d 898.) Thus, the Page court concluded that the excluded expert testimony was a "far cry from the ‘blanket exclusion’ of evidence the Supreme Court faced in Crane . Unlike Crane, Page was not ‘stripped of the power to describe to the jury the circumstances that prompted his confession,’ " and "that power was, at most, marginally curtailed . Consequently, in our view, the trial court's ruling did not deprive Page of ‘ "a meaningful opportunity to present a complete defense." ’ " ( Page , at p. 186, 2 Cal.Rptr.2d 898, quoting Crane , at pp. 689, 690, 106 S.Ct. 2142, italics added, fn. omitted.)
The same holds true here. Like Page , defendant was allowed to mount a defense challenging the credibility of the confession. Defendant testified that he did not shoot the victim. Similar to the defendant in Page , defendant explained how the confession came about. He explained that, confronted with Harris's representations concerning the fictitious city surveillance camera recording, he did not tell the detectives that there had been a mistake and that it had not been him at that location "[b]ecause I was afraid of them. I only answered and told them that I didn't remember." When Fry told defendant that "this could go on for hours and hours and hours," defendant testified that he understood that to mean that the interview would go on for hours "until [defendant] told them what they wanted to hear." When Fry said that "they could be assholes like the cops before and have you in handcuffs and sitting on your dog bite," defendant testified that he understood this to mean that, if he did not do what Fry asked, "that he could also do what they did to me." Defendant testified that, in talking with the detectives, he made up a story that sounded good. When asked why he said all of the things he told the detectives, defendant responded: "I was afraid. I was afraid of them. And they told me a story, so I just added to the story. I added to the story because I was afraid of them and I wanted the story to sound good."
In addition to defendant's testimony, Dr. Leo's testimony provided evidence supporting defendant's false confession defense. Although defendant was not able to connect his testimony about his experience in Thai refugee camps to Dr. Leo's testimony that cultural experiences might explain why a person would give a false confession, Dr. Leo did testify that some individuals simply have very suggestible or compliant personalities. He noted that Dr. Lee had diagnosed defendant with compliant personality disorder and explained that disorder. He also testified about several factors that might lead to false confessions. Trial counsel thoroughly cross-examined both Harris and Fry about the interrogation, including some questions about the techniques they employed. Some questions were obviously geared toward establishing the false confession defense. For example, counsel asked Fry, "in terms of your training, are you ever cautioned about using false evidence because you may end up with a false confession," to which, Fry responded, "no." Trial counsel told the jury in closing argument that it is difficult to understand why a person would confess to something he did not do and then explained why that would happen, referencing Dr. Leo's testimony.
While defendant was improperly precluded from testifying concerning his understanding of whether a person could say no to officers in the refugee camp or deny allegations made by them, there was ample evidence admitted on his contention that he falsely confessed because he was afraid of the detectives and essentially felt he had to tell them what they wanted to hear to end the interrogation uninjured. Similar to Page , we conclude defendant's right to present a defense was only "marginally curtailed." ( Page , supra , 2 Cal.App.4th at p. 186, 2 Cal.Rptr.2d 898.) Unlike in Crane , defendant here was able to provide an answer to the question: "If [he] is innocent, why did he previously admit his guilt?" ( Crane, supra, 476 U.S. at p. 689, 106 S.Ct. 2142.) There was no "blanket exclusion" of a defense and he was not deprived of a " ‘meaningful opportunity to present a complete defense’ " on this point. ( Id . at p. 690, 106 S.Ct. 2142 ; see also People v. Fudge (1994) 7 Cal.4th 1075, 1103, 31 Cal.Rptr.2d 321, 875 P.2d 36 [excluding defense evidence on a "subsidiary point" does not impair an accused's due process right to present a defense].)
2. Harmless Error Review
Having concluded there was no constitutional violation resulting from the trial court's error, we employ the standard for harmless error review set forth in Watson , supra , 46 Cal.2d 818, 299 P.2d 243, and inquire whether it is reasonably probable that, but for the error, the jury would have reached a result more favorable to defendant. ( Id . at p. 836, 299 P.2d 243.) "[T]he Watson test for harmless error ‘focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.’ " ( People v. Beltran (2013) 56 Cal.4th 935, 956, 157 Cal.Rptr.3d 503, 301 P.3d 1120.) We may also consider the arguments of counsel. ( People v. Guiton (1993) 4 Cal.4th 1116, 1130, 17 Cal.Rptr.2d 365, 847 P.2d 45 ( Guiton ).)
The jurors were able to view and scrutinize the video recording of the interrogation and evaluate defendant's credibility during the interrogation and when he testified. Our review of the recording reveals that, contrary to defendant's testimony, he did not add to a story fed to him by the police. And defendant's demeanor as can be seen on the video does not appear to be that of a person who was afraid of his interrogators. Indeed, at one time he joked about being hungry enough to eat a whole pizza. Moreover, there was overwhelming evidence that defendant's confession was not false and that he was the person who shot the victim here.
As to the false confession defense, we begin with Dr. Leo's testimony about contamination, because the evidence demonstrates that the detectives never told defendant that the crime they were investigating was a shooting and never expressly told him the victim had been shot. Nor did defendant testify he had learned information leading him to believe that the victim had sustained gunshot wounds as opposed to some other injury. Yet, defendant confessed that he shot the victim. Even when defendant pressed the detectives for detail, they were vague about what the fictitious surveillance cameras showed during the altercation. Harris explained, that "at every step [of the interrogation] I'm trying to go a little farther without giving him information because I want him to give me original information back." During the interrogation, Harris mentioned a number of possible weapons. Ultimately, Harris told defendant "from looking at the camera ... it looked like it could have been a gun. Or a bigger knife. [T]hat's basically what it looked like to me. All I know is like some commotion goes on right here.... All of a sudden this guy goes down." (Italics added.) About this statement, Harris testified, "I didn't want to give him any specific information, I wasn't trying to focus him anywhere, I was just still trying to elicit a truthful response from him at that point.... I threw out anything that could be used as a weapon ... I didn't want to tell him a story to tell me back, I wanted to give him generalities, and if he chose to tell me the truth back at some point, then that's what I had wanted." Fry testified, "In fact, Detective Harris said it could have been a knife, a hammer, a gun. He didn't lead him on to a story that Mr. Xiong just agreed to." When faced with the choice of the victim having potentially been shot or stabbed or injured with some other weapon, defendant explained how and why he shot the victim. When discussing with defendant the victim's potential gang membership, defendant said, "He was wearing red right?" In his testimony, Harris indicated that he did not take this question as an inquiry by defendant. Rather, according to Harris, defendant said it, "Like obviously, it's kind of how I took that. It was like I should know and Detective Fry should already know since he is wearing red. He, to me, is inferring that he is in a gang." Our review of the interrogation recording is consistent with Harris's interpretation. The detectives did not tell defendant that the victim was Hmong or that the victim had his hair pulled back or that he was wearing red. The evidence established that the victim was a member of a Hmong gang and wore his hair in a ponytail. He was wearing a red hat and shirt when defendant shot him. When Fry suggested that the victim could recover and refute defendant's account of the events, saying, "What if he says that guys crazy. I was walking my dog skipping along the streets," defendant immediately corrected Fry by responding: "[T]here was no dog." And he was right; there was no dog. Dr. Leo testified that when a confession matches the evidence, the confession is probably true, "absent contamination and the degree to which it's not likely guessed by chance."
Defendant testified that he learned some information from radio communications he overheard while detained in the patrol car. He testified that he heard mention made of an Asian person and the name was a Hmong name, so defendant's reference to the victim being Hmong during the interrogation could theoretically have been contaminated by this exposure to the radio communications, if there were any such communications. Defendant also testified that he "wasn't really listening" to the radio and the name of the Asian person was the only thing he heard. Harris testified that he did not believe there was radio traffic about this case after defendant was apprehended. Harris also testified that nobody had informed defendant he was a suspect in a shooting prior to the interrogation, and defendant did not testify that anyone had. Also, defendant did not testify that he overheard radio communications about a shooting.
But see footnote 14, ante .
In his statements to the detectives, defendant admitted to shooting the victim and he volunteered his motive for it. After Fry and Harris both continued to encourage defendant to tell his side of the story, defendant told them that he did not know why someone vandalized his car. He told them that his girlfriend saw who vandalized the car. He explained that he had suspected the victim had been the culprit. And although the detectives knew about the vandalism, they never mentioned it before defendant did.
Defendant volunteered how he got a gun from K, described finding the victim, approaching him, and confronting him about the victim's purported hostility towards defendant. Defendant further described the victim challenging defendant by saying "what you gonna do about it? You catch me slippin’ you ain't doing nothing?" Defendant volunteered his thoughts about this challenge: "Ok I'll do, do my job. You know," and he shot the victim. Defendant then drove away, only to be spotted near the scene by Officer Kwan minutes later.
Perhaps the most telling evidence of the truth of defendant's confession is the two conversations defendant had with himself while alone in the interrogation room. While the detectives got defendant pizza, defendant said to himself, "Don't matter [unintelligible]. I'd rather be a man and step up to the plate than be a punk about it." At the end of the interrogation, after Harris thanked defendant for being truthful, defendant responded, "thank you." Then, immediately after the detectives left the room, defendant said to himself, "You know I'm doing right. At least I'm speaking ... with the truth. Life is going to hurt."
Beyond defendant's confession and his two conversations with himself, the trial evidence established that defendant was the shooter and was largely consistent with defendant's confession. Officer Kwan, who was driving towards Tiffany and 12th Streets, spotted defendant in a vehicle matching the description of the vehicle seen leaving the scene close to that location within two to three minutes of the dispatch. After initially pulling over, defendant suddenly fled and led Kwan and other officers on a high-speed chase through the surface streets of Stockton, going through stop signs and red lights, driving on the wrong side of the road and reaching speeds of 80 miles per hour.
N.V. testified that she told the police that the shooter, while pointing the gun downward at the victim, said "Fuck you, cuz, that's for messing with my family," and a detective confirmed that she made that statement. A jury could reasonably infer this was a reference to what defendant suspected the victim had done to his brother's vehicle or the mean mugging confrontation the night before when defendant was with his girlfriend and his "stepson." N.V. viewed defendant in a showup, and, according to Rodriguez, she identified defendant as the person she saw at the scene of the shooting and identified defendant's car as the one she saw the shooter leave in immediately after the shooting. M.M. was also brought to the location of defendant's apprehension, and, according to Sandberg, while she could not identify the individual displayed in a showup, she said of defendant's vehicle, "that was the car."
We conclude that it is not reasonably probable that, had defendant's testimony about his perceptions of police officers in refugee camps been admitted, the jury would have reached a more favorable result. ( Watson, supra , 46 Cal.2d at p. 836, 299 P.2d 243.) II. Instruction to Consider Defendant's Unrecorded Statements with Caution and Impact on False Confession Defense Related to his Recorded Statements
Moreover, our conclusion would be the same even trial counsel had explained to the trial court in his offer of proof that defendant's response to the question about his refugee camp experience would have been similar to what he apparently told Dr. Lee – that "he perceived the camp guards as authoritative figures who were not to be questioned and with whom a refugee camp resident was not to disagree at the risk of being jailed, beaten or disappeared; that he possessed the same perception and attitude toward authoritative figures, police officers in this case, as the residents at the refugee camp" – and defendant testified to that same effect. (See fn. 11, ante .)
A. Additional Background and Defendant's Contentions
At the jury instruction conference, defense counsel asked the trial court whether it was required to give the last sentence of CALCRIM No. 358. That sentence is bracketed and states: "Consider with caution any statement made by (the/a) defendant tending to show (his/her) guilt unless the statement was written or otherwise recorded." Defense counsel argued that the instruction suggests the recorded statements were "more believable."
The trial court observed that defendant's statement was recorded on video, and therefore, according to the court, "it's not a consider with caution situation." The court continued: "Except, we also have testimony by witnesses stating that the defendant made certain statements or -- well, they say that the shooter made statements." The court further stated: "By inference, that would be the defendant. Well, it says it's sua sponte." The court stated that the annotations to the instruction indicated that it is not required where a defendant's incriminating statements are written or tape recorded. Defense counsel requested that the sentence be struck, arguing that "it gives the jury the wrong impression, that if it's recorded, it should just be accepted on face value." The prosecutor stated: "I think with the two different types of statements, some recorded and some not, I mean, I realize he doesn't want that and he wants it all to be treated equally, but I think that gives the impression that the witness statements of what they heard the shooter say might be given more credence." The court stated that it did not think the instruction would be harmful to defendant. The court continued: "It only helps him. And the problem is there are statements that the jury could find that the defendant made, oral statements," "[a]nd that would -- clearly the last sentence would apply to that situation." The court elected to give the bracketed last sentence in instructing the jury with CALCRIM No. 358.
The bench note to which the trial court referred states, in part: "The bracketed cautionary instruction is not required when the defendant's incriminating statements are written or tape-recorded." (Use Note to CALCRIM No. 358.)
The trial court instructed the jury with CALCRIM No. 358 as follows: "You have heard evidence that the defendant made oral statements before the trial. You must decide whether the defendant made any of these statements in whole or in part. If you decide that the defendant made statements, consider the statements, along with all the other evidence, in reaching your verdict. It is up to you to decide how much importance to give to the statements. [¶] Consider with caution any statement made by the defendant tending to show his guilt unless the statement was written or otherwise recorded ." (Italics added.)
Defendant asserts that the trial court erred in instructing the jury with the italicized language (the bracketed part of the instruction) because it implied that his recorded statements need not be subjected to scrutiny. According to defendant, that language gave undue weight to the statements defendant made in his recorded interrogation with the detectives. He emphasizes the essence of his defense was that his recorded statements in his interview with the detectives were false, psychologically induced, and not credible.
B. Applicable General Principles of Law
" ‘The trial court has the duty to instruct on general principles of law relevant to the issues raised by the evidence [citations] and has the correlative duty "to refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues." ’ " ( People v. Alexander (2010) 49 Cal.4th 846, 920-921, 113 Cal.Rptr.3d 190, 235 P.3d 873 ( Alexander ).)
C. Analysis
The purpose of the bracketed language in CALCRIM No. 358 is to aid the jury in evaluating whether the defendant actually made the statement. ( People v. Diaz (2015) 60 Cal.4th 1176, 1184, 185 Cal.Rptr.3d 431, 345 P.3d 62 ( Diaz ).) "The cautionary instruction is concerned with the reliability and credibility of the witness who testifies about the defendant's statements." ( Id . at p. 1187, 185 Cal.Rptr.3d 431, 345 P.3d 62.) No such caution is necessary when the statements are recorded.
Prior to our high court's decision in Diaz, supra , 60 Cal.4th 1176, 185 Cal.Rptr.3d 431, 345 P.3d 62, trial courts had a sua sponte duty to provide such cautionary language, first under statute, and following the repeal of the statute, based on case law. ( Id . at pp. 1188-1190, 185 Cal.Rptr.3d 431, 345 P.3d 62.) However, in Diaz , our high court concluded that, "[I]n light of a change in the law that requires the general instructions on witness credibility to be given sua sponte in every case, the cautionary instruction is not one of the general principles of law upon which a court is required to instruct the jury in the absence of a request." ( Id . at p. 1189, 185 Cal.Rptr.3d 431, 345 P.3d 62.) Thus, "the trial court is no longer required to give the instruction sua sponte." ( Id . at pp. 1181, 1190, 185 Cal.Rptr.3d 431, 345 P.3d 62.) As defendant notes, Diaz was decided on April 6, 2015, 14 days before the instruction conference in this case and 16 days before the day the trial court instructed the jury with CALCRIM No. 358. Therefore, as defendant correctly asserts, the trial court did not have a sua sponte duty to instruct the jury with the bracketed language in CALCRIM No. 358.
The bracketed language may be appropriately given if the subject inculpatory statements were oral and were not memorialized in a recording. Statements covered by the instruction include unrecorded admissions, preoffense and postoffense statements witnesses hear a defendant make, and statements constituting the crime as in Diaz , where the statements were oral criminal threats. ( Diaz, supra , 60 Cal.4th at pp. 1181, 1185-1187, 185 Cal.Rptr.3d 431, 345 P.3d 62.) However, the cautionary instruction should not be given " ‘ "[I]f the oral admission was tape-recorded and the tape recording was played for the jury." ’ " ( People v. Linton (2013) 56 Cal.4th 1146, 1197, 158 Cal.Rptr.3d 521, 302 P.3d 927 [discussing cautionary instruction set forth in CALJIC 2.70 ], quoting People v. Williams (2008) 43 Cal.4th 584, 639, 75 Cal.Rptr.3d 691, 181 P.3d 1035 [although not expressly stated in the opinion, the cautionary instruction was that set forth in CALJIC 2.70 ]; see People v. Slaughter (2002) 27 Cal.4th 1187, 1200, 120 Cal.Rptr.2d 477, 47 P.3d 262 ( Slaughter ) [cautionary instruction in CALJIC 2.71 should not be given if the oral admission was tape-recorded and played for the jury].) The court in Diaz recognized that, while "the instruction may be useful to the defense in highlighting for the jury the need for care and caution in evaluating evidence of the defendant's statements," "the defendant may not always want the instruction to be given." ( Diaz , at p. 1189, 185 Cal.Rptr.3d 431, 345 P.3d 62.) Here, evidence pertaining to inculpatory statements attributed to defendant included both his recorded interview with Harris and Fry and a statement at the scene of the shooting, where the shooter reportedly stated: "Fuck you, cuz, that's for messing with my family," or something similar. Consequently, evidence concerning extrajudicial inculpatory statements potentially attributed to defendant included both recorded statements which were played for the jury and unrecorded statements reported by a witness. Thus, the cautionary instruction would have been properly given in relation to the unrecorded statements purportedly made by the shooter potentially attributable to defendant. However, defendant did not want the instruction and the trial court was not required to give it sua sponte. As the Diaz court observed, it "might not be in the defendant's interest" to give the cautionary instruction and "it is more appropriate to permit defendants to determine whether to request the instruction." ( Diaz, supra, 60 Cal.4th at p. 1192, 185 Cal.Rptr.3d 431, 345 P.3d 62.) The trial court erred in giving the cautionary bracketed language because the defense did not want it.
CALJIC No. 2.70 stated: "A confession is a statement made by a defendant in which [he] [she] has acknowledged [his] [her] guilt of the crime[s] for which [he] [she] is on trial. In order to constitute a confession, the statement must acknowledge participation in the crime[s] as well as the required [criminal intent] [state of mind]. [¶] An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [¶] You are the exclusive judges as to whether the defendant made a confession [or an admission], and if so, whether that statement is true in whole or in part. [¶] [Evidence of [an oral confession] [or] [an oral admission] of the defendant not made in court should be viewed with caution .]" (Italics added.)
CALJIC No. 2.71 provides: "An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [¶] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [¶] [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution .]" (Italics added.)
D. Harmless Error
Given the false confession defense defendant mounted here, the instruction had the potential of " ‘ "confusing the jury." ’ " ( Alexander, supra , 49 Cal.4th at pp. 920-921, 113 Cal.Rptr.3d 190, 235 P.3d 873.) However, we conclude that the error was harmless and did not prejudice defendant.
Defendant asserts that the erroneous provision of this instruction deprived him of a fair trial because it deprived him of his opportunity to present a defense and lightened the prosecution's burden of proof. Therefore, according to defendant, this error must be reviewed under the harmless beyond a reasonable doubt standard of Chapman, supra , 386 U.S. 18, 87 S.Ct. 824. We disagree. "Mere instructional error under state law regarding how the jury should consider evidence does not violate the United States Constitution." ( People v. Carpenter (1997) 15 Cal.4th 312, 393, 63 Cal.Rptr.2d 1, 935 P.2d 708, superseded by statute on other grounds as recognized in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106, 77 Cal.Rptr.3d 287, 183 P.3d 1250, citing Estelle v. McGuire (1991) 502 U.S. 62, 71-75, 112 S.Ct. 475, 481-484, 116 L.Ed.2d 385, 398-401.) And as we have seen, defendant was not deprived of the opportunity to present a complete defense. ( Crane , supra , 476 U.S. at p. 690, 106 S.Ct. 2142.) Moreover, as the Diaz court noted, "[t]he language of the cautionary instruction [in CALCRIM No. 358 ] does not reference the People's burden of proof or the elements of the offense, or in any other way suggest to jurors that the instruction was meant to create an exception to the rule that all elements of the crime must be proved beyond a reasonable doubt." ( Diaz, supra, 60 Cal.4th at p. 1188, 185 Cal.Rptr.3d 431, 345 P.3d 62.) The cautionary instruction, given under the circumstances of this case and considered in the context of the instructions as a whole and the trial record, did not " ‘so infect[ ] the entire trial that the resulting conviction[s] violate[ ] due process.’ " ( Estelle , at p. 72, 112 S.Ct. 475, quoting Cupp v. Naughten (1973) 414 U.S. 141, 147, 94 S.Ct. 396, 400, 38 L.Ed.2d 368, 373-374.) Accordingly, we review this claim of instructional error under the standard set forth in Watson, supra , 46 Cal.2d 818, 299 P.2d 243, and inquire whether it is reasonably probable that, but for the error, the jury would have reached a result more favorable to defendant. ( Id . at pp. 835-836, 299 P.2d 243 ; see Slaughter, supra , 27 Cal.4th at p. 1201, 120 Cal.Rptr.2d 477, 47 P.3d 262 [concluding that the error in instructing the jury to view defendant's tape-recorded admissions with caution was harmless because it was not reasonably probable the jury would have reached a result more favorable to defendant had the instruction not been given].)
Neither attorney commented on the instruction during closing argument; thus, no jury confusion resulted from anything they said. (See Guiton, supra , 4 Cal.4th at p. 1130, 17 Cal.Rptr.2d 365, 847 P.2d 45 [prosecutor only "briefly argued" invalid prosecution theory in closing argument and instructing on invalid theory was harmless].) For the same reasons we concluded the error in precluding defendant's testimony concerning refugee camp police was harmless, and for the additional reason that neither attorney commented on the bracketed language of CALCRIM No. 358, we conclude the instructional error here is harmless. Again, we "focus[ ] not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration." ( Beltran, supra , 56 Cal.4th at p. 956, 157 Cal.Rptr.3d 503, 301 P.3d 1120.) On this record, notwithstanding the evidence put on by defendant to the effect that the interview with the detectives was coercive and defendant was particularly vulnerable to coercive police interrogation tactics based on a variety of factors, we conclude it is not reasonably probable that, had the cautionary instruction not been given, the jury would have reached a result more favorable to defendant. ( Watson, supra , 46 Cal.2d at pp. 835-836, 299 P.2d 243.)
See footnote *, ante .
DISPOSITION
We modify the judgment to strike the two one-year prior prison term enhancements imposed pursuant to section 667.5, subdivision (b). We order remand to allow the trial court to consider whether to exercise its discretion to strike or dismiss the section 12022.53, subdivision (d), enhancement. The trial court shall prepare an amended abstract of judgment deleting reference to the section 667.5, subdivision (b), prior prison term enhancements. If, in the exercise of discretion, the trial court strikes or dismisses the section 12022.53, subdivision (d), firearm enhancement, the court shall omit reference to that on the amended abstract as well. The court is directed to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation. We otherwise affirm.
We concur:
RAYE, P. J.
RENNER, J.