Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Santa Clara County Super. Ct. Nos. FF201813 & FF301241
RUSHING, P.J.
Defendant Paul Zapata was convicted of first degree murder and sentenced to imprisonment for 50 years to life. On appeal he contends that numerous errors were made in the admission of evidence and other matters. We find no error in the murder conviction, but direct certain modifications in the judgment with respect to a simultaneous conviction for battery.
Background
On May 18, 2001, Juan Trigueros drove from his home in Soledad to Gilroy, where he attended an electronics class. After class Trigueros joined a classmate, Magdaleno Barajas, for dinner and drinks. He drank a good deal; his blood alcohol level was later measured at .18, which is more than twice the level for drunk driving. (See Veh. Code, § 23152, subd. (b).) In the evening, while driving in quest of beer, he hit a curb and punctured both right-side tires. Since there was only one spare tire, and it was too late to repair or replace a second tire, the car was effectively disabled. Barajas called a friend for a ride home. Trigueros declined a ride, saying he did not wish to leave his car unattended. About 9:30 p.m., Barajas left him near a Beacon gas station on Leavesley Road in Gilroy.
Fatefully, Trigueros was wearing a jersey emblazoned with the numeral 8 in honor of basketball star Kobe Bryant. An expert testified that the neighborhood in which he had stranded himself was claimed as turf by Outside Posse (OSP), a local clique of the Norteños street gang. The principal local clique of the rival Sureños gang was Calle Oche (Eighth Street), one of whose identifying signs was the numeral 8. By wearing that symbol in OSP territory, Trigueros made himself, in the expert’s words, a “marked man.”
Around 2:00 a.m., Trigueros called Marissa Villagomez, whom he had been dating, from a phone booth in the parking lot of a 7-Eleven on Leavesley Road. He told her he would not be able to see her because he had a flat tire. After conversing for 10 or 15 minutes, he abruptly stopped talking and the line “went dead.”
At about that time Brian Puphal was making a stop at the 7-Eleven so that a friend, whom he was driving home, could buy tobacco. As Puphal approached the store, he saw one man talking on the telephone while another was yelling at him and “[r]aising his arms in anger.” Puphal stopped his pickup about 40 feet away with its headlights pointed directly at the two men. He saw the yelling man pull a pistol from his waistband and shoot the other from a distance of two to three feet. The victim twisted but did not fall. The gunman fired a second shot from about six feet. The victim staggered into the store. The gunman looked directly at Puphal for a few seconds before running through a nearby car wash. Shortly thereafter a white pickup drove slowly past the 7-Eleven. Puphal entered the store, where he saw Juan Trigueros lying dead on the floor. Puphal described the gunman to police, and within a few days of the shooting described him to police sketch artist Gilbert Zamora. He was sure that the gunman had a scraggly goatee. He testified that a June 2001 photo of defendant “could be” the gunman. However, he had failed to identify defendant in a pretrial photographic lineup.
Puphal initially described the first shot as “[i]n the chest area,” but was not sure of this. A pathologist testified that Trigueros died of two gunshot wounds, one entering in the back near the left shoulder blade, and the other entering in the chest below the left nipple. He characterized the chest wound as the “second bullet wound of entrance,” apparently because unlike the back wound, it did not show stippling, and could therefore be inferred to have been fired from a greater distance. The prosecutor argued to the jury that “the defendant shot Juan Trigueros in the back as he’s trying to avoid him on the phone. He shoots him a second time as he kind of spun out” of the phone booth.
Joseph Morton was working at a gas station and convenience market near the 7-Eleven when he heard gunshots. He saw a man walk “nonchalantly” from the direction of the 7-Eleven, looking backwards as though associated with the shots in some way. The man walked about half a block in Morton’s direction before getting into the passenger seat of a white pickup or SUV, which quickly drove away. Morton called 911.
Army recruiter Felipe Davila was making a purchase in Morton’s convenience market when he heard “at least two” shots from what “sound[ed] like a nine millimeter.” Apparently unable to credit this perception, he completed his transaction, which took “[a] few seconds.” He then heard a “screeching” noise and ran outside in time to see a white truck being driven in a “crazy” manner. It started to make a right turn, but resumed its original course after hitting a traffic island hard enough to damage the right tires. Davila described the truck as a white pickup with a chrome bumper and “Toyota” on the tailgate in blue letters. About a month before trial, police showed him defendant’s pickup. As Davila walked toward it he said it resembled the truck he had seen on the night of the shooting, and that if he was right it “should have some damage on the tires.” Consistent with this expectation, there was damage to the right-side tires.
Defendant belonged to OSP. Evidence was received concerning several violent offenses, in which defendant participated, that were committed for the apparent benefit of OSP. Nancy Echeverria, who described defendant as her former boyfriend, testified that on the night of the Trigueros shooting she accompanied him to a barbecue at an OSP member’s home a few blocks from the 7-Eleven. Defendant left between 10:00 and 11:00 p.m. to drive a friend to work. Echeverria left soon after.
Sarah Sanchez (neé Valdez), a former associate of OSP members, testified that in May or June of 2001—shortly after the shooting—she saw defendant at the Ramirez family ranch near Gilroy, where he asked her to do him a favor by driving his truck to Stockton or Manteca. She asked him why, and he replied that he had shot somebody at the 7-Eleven and “needed to get rid of” the truck. She thought he was joking until some time later, when she saw a newspaper report on the shooting. That fall she saw defendant’s truck, or one like it, parked on a Manteca street near the home of the mother of Rico Clarke, an OSP member whose gang nickname was Sparkie or Sparky.
Victoria Lopez, who was married to but separated from another OSP member, testified that defendant had driven a white pickup in the spring of 2001, but drove a black Taurus after May of that year. She acknowledged that, prior to trial, she had told Police Detective Daniel Zen that she believed defendant was the killer of Trigueros because his pickup had disappeared “immediately” after the shooting. She did not recall telling the detective that defendant’s truck had broken down at the Stockton home of Rico Clarke. Nor could she recall whether defendant had ever worn a goatee. The jury heard a recorded interview in which Sanchez told Zen that she “kind of th[ought] it was stupid Paul” who killed Juan Trigueros, and that “right after the murder,” while defendant was visiting the home of Sparkie, defendant’s truck broke down. Lopez told Zen that Sparkie gave defendant a black Taurus to use.
Nancy Echeverria testified at trial that she saw defendant driving his truck the day after the shooting, but before trial she had told a detective that the truck was “gone” the day after the shooting and that she had been told it was at the Stockton home of Rico Clarke and his wife Olga. She also acknowledged having told the detective that defendant’s clothing that night matched that of the shooter as given in news reports, that the police sketch looked “just like” defendant when he was trying to grow a goatee, and that whenever she asked defendant about the shooting, he got “weird” and said, “I don’t know what you're talking about.”
Detective Zen, who was the lead investigator on the case, testified that he first interviewed Echeverria after learning that she had called a police tip line about the killing. When he showed her the artist’s sketch of Juan Trigueros’s killer, she laughed or chuckled. He testified that when he asked her to explain, “She said, it looks like him [defendant] and that was when he was trying to grow a goatee. She pointed to his chin area on the police sketch.” Zen surreptitiously recorded a second interview, which was played for the jury. In it Echeverria referred to various circumstances tending to incriminate defendant, including that the truck was “gone the very next morning or next day.”
In December 2002 Echeverria told Detective Zen that defendant’s truck was at the Morgan Hill apartment of defendant’s then-current girlfriend, Priscilla Pena, and his friend, Eric Garcia. Zen went there and photographed the pickup. When he returned a few months later it was gone. He later tracked it to the Morgan Hill address of Pena’s sister Elizabeth, where police seized it in March 2003. Zen also testified that when he told Echeverria she would probably be subpoenaed for the preliminary hearing, she said that she would refuse to testify, or would testify falsely, out of fear of defendant and his friends.
Several defense witnesses testified to the effect that defendant had little if any facial hair, had never attempted to grow a goatee, and according to one witness, could not grow a moustache, or at best could grow a “small” one. However a booking photo of defendant taken in June 2001 depicts a somewhat sparse but distinct dark moustache. The defense also noted that whereas the police sketch of the suspect depicts what looks like a bead necklace, Nancy Echeverria testified that defendant did not wear jewelry of any kind. However, other photographs in evidence show a long tattoo just above the collarbone that might be suggestive of a necklace. Puphal testified that he told the sketch artist the feature “could have been something like a neckline.” At the preliminary hearing, however, Puphal testified that it had “looked more like beads and not a tattoo . . . .”
After further proceedings described more fully below, and after deliberating for about three hours, the jury returned a verdict of guilty of first degree murder. The court sentenced defendant to two consecutive terms of 25 years to life.
The jury deliberated for 1.5 hours on November 1, 2004, and 2.5 hours the next day, of which about an hour was consumed by readback of testimony.
Discussion
I. Hearsay Evidence of Other Crimes
Defendant contends that the prosecution’s gang expert, Geoff Guerin, should not have been permitted to testify concerning various hearsay accounts of gang-related offenses in which defendant was involved, or the jury should at least have been admonished not to accept such testimony for the truth of the matters asserted. Defendant acknowledges that this point was not raised below, but asserts that this court should either grant discretionary relief from the resulting forfeiture, or should find that he was the victim of ineffective assistance of counsel.
We begin with the indisputable fact that insofar as the expert’s testimony might be considered for any purpose other than as the basis for his expert opinion concerning applicability of the anti-gang statutes, it was objectionable. Defendant is thus correct to assert that, on objection, the testimony could have been excluded or, more probably, admitted for that limited purpose, as reflected in limiting instructions to the jury. Insofar as the testimony was not hearsay on its face—explicitly recounting such out-of-court statements as police reports—it manifestly lacked any foundation in the witness’s firsthand knowledge, since there was no suggestion that he witnessed any of the described crimes or had any other way of directly observing them.
It does not follow, however, that counsel should have objected to this testimony, or that his failure to do so constitutes ineffective assistance of counsel. Counsel cannot be held to have performed deficiently if there was a “ ‘rational tactical purpose’ ” for the challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 437.) For deficient performance to appear on direct appeal—as distinct from on habeas corpus, where extrinsic evidence may be received—the record must affirmatively demonstrate that counsel lacked a rational tactical reason for the challenged conduct. (In re Kristen B. (2008) 163 Cal.App.4th 1535, 1541; see People v. Viray (2005) 134 Cal.App.4th 1186, 1212.) There is no suggestion here that counsel was ever called upon to explain his acquiescence in the admission of the challenged evidence. Accordingly, for the present argument to succeed, the record must dispel any reasonable possibility that counsel might have acted for a reasonable tactical purpose.
A hearsay or foundational objection goes to the form of evidence. It assumes that the substance of the evidence would be admissible if presented in a different manner—most obviously, by the live testimony of one with personal knowledge of the subject. Here defendant does not suggest that the substance of the officer’s testimony—the fact of the other offenses, and defendant’s involvement in them—was not admissible. He seems to concede the opposite by acknowledging that “there were . . . several valid bases on which evidence of prior crimes could have been admitted,” including “to show motive or intent. (Evid. Code § 1101, subd. (b); People v. Hernandez (2004) 33 Cal.4th 1040, 1048-1049; People v. Robbins (1988) 45 Cal.3d 867.)” He does not suggest that the evidence was improperly admitted to show disposition, and in fact the jury was admonished not to consider it for that purpose. (See Evid. Code, § 1101, subd. (a).)
In view of this concession, we fail to see how defendant can, on direct appeal, dispel the possibility that trial counsel withheld objection out of a reasonable belief that a successful hearsay objection would merely compel the prosecution to introduce other, possibly more damaging evidence of the same tenor as that now challenged on appeal. For example, in one of the incidents described by prosecution expert Guerin, defendant and three other OSP members attacked a Mexican family, including a 54-year old woman and a blind boy, while hurling epithets including “scrapas” (which Guerin translated as “pieces of shit”) and “mojados” (“wetbacks”). After the attack, one of the assailants threatened to get a gun and kill the victims if they called the police. It requires no great feat of imagination to suppose that defense counsel might reasonably have preferred Officer Guerin’s recitation of these facts to a parade of the actual victims of the described attack. So long as the substance of the testimony could have been presented by other means—and the present record does not establish otherwise—Officer Guerin’s testimony may have been the least damaging way for it to come in. Counsel might well have had, therefore, a tactical reason for failing to object.
Defendant meets this possibility only by asserting that the prosecutor would have offered stronger evidence had he possessed it. This does not follow. A prosecutor might have any number of reasons to prefer to introduce evidence of this type in the form of a hearsay summary. If nothing else, it is certain to be more convenient and expeditious than securing the attendance of the percipient witnesses and coordinating their appearances on the stand. The prosecutor may be willing to forego the possibly greater impact of direct victim testimony for the greater efficiency of a hearsay summary.
Nor is there any reason to assume that the interests of prosecution and defense will invariably conflict on such a point. Each side might prefer hearsay for its own reasons—the prosecution for conciseness and convenience, the defense for reduced visceral impact. In the present context, both sides might also prefer to avoid the risk of courtroom recantations—the prosecutor because of the complexities thus introduced into his case, the defense because of the risk of creating an atmosphere of gang-based menace.
In addition, as we have noted, the expert was entitled to rely on hearsay evidence in forming his opinions, and to disclose the basis for his opinions in direct testimony. (See Evid. Code, §§ 802, 804.) This meant that, as defendant concedes, at least some of the evidence here in question would have been heard by the jury even over a hearsay objection, though it would have been accompanied by an admonition to consider it only as it bore on the soundness of the expert’s opinion. A successful objection could thus have meant that the jury would hear about defendant’s other crimes twice: once as a basis for expert opinion; and once as substantive evidence of conduct by the defendant offered to prove motive and intent. Nothing in this record dispels the possibility that counsel reasonably believed it was preferable to just have the jury hear it once, even if this meant foregoing a meritorious hearsay objection.
In sum, it is impossible on this bare appellate record to say that counsel’s failure to object to the expert’s hearsay testimony constituted ineffective assistance of counsel. For much the same reason, it is impossible to say that counsel’s failure to object had any effect on the outcome of the trial. For all this record shows, a successful objection would only have forced the prosecution to present other and possibly more damaging evidence of defendant’s participation in other gang-motivated crimes. The charge of ineffective assistance therefore cannot be sustained on direct appeal, and the hearsay objection must be held to have been forfeited.
II. Lay Opinions About Defendant’s Guilt
Defendant contends that the trial court erred in permitting the prosecution to present evidence of the lay opinions of Nancy Echeverria and Victoria Lopez concerning defendant’s guilt, and that defense counsel rendered ineffective assistance to the extent he forfeited the point by failing to object. The jury heard an interview by Detective Zen in which Echeverria alluded to and then gave reasons for the belief “that I know he [defendant] did it.” Similarly, the jury heard Lopez’s statement to Zen that with respect to “who did it,” “I kind of think that it was stupid Paul.” Again we conclude that the appellate record cannot sustain the findings necessary to uphold defendant’s contention.
[¶] ZEN: Okay. Now, what, ah, after, now, during ah, when, when he did this shooting, . . . [¶] ECHEVERRIA: Uum hum. [¶] ZEN: he never said anything to you. So, directly, you can’t say that he said, I shot . . . [¶] ECHEVERRIA: Right. [¶] ZEN: the guy, right? [¶] ECHEVERRIA: Right. Right. [¶] ZEN: But if you said because OSP just, just is common knowledge or, or what? [¶] ECHEVERRIA: Ahh, that I know that he did it? [¶] ZEN: Yeah. [¶] ECHEVERRIA: Basically, yeah. I mean, common sense tells you there’s eh, bah, it was basically all common sense. I always keep abilities. I know him inside out. I know when he does, and I know when he doesn’t do. And I knew, I knew . . . [¶] ZEN: (Inaudible). I tell you why. It’s because we’re reviewing the case five or two weeks (inaudible) get together and . . . [¶] ECHEVERRIA: Right. [¶] ZEN: go over our cases. And when the sergeant says, so what’s going on with the case. So, I tell him, la, la, la, la, la. [¶] ECHEVERRIA: Right. [¶] ZEN: And tell him I have an informant that said this and this and this. Well, how do you know? And, and that was one of the questions that he asked me. How did, how did she know that he was responsible? [¶] ECHEVERRIA: Um, see, I, I (inaudible) . . . [¶] ZEN: (Inaudible). [¶] ECHEVERRIA: he never told me that. He never said, well, when I bring it up, he gets weird, and he just wouldn’t even want to talk about it. It’s just like, he’d go, I don’t know what you’re talking about. And that’s their phrase, I don’t know what you’re talking about. So, he never directly told . . . [¶] ZEN: So, . . . [¶] ECHEVERRIA: them . . . [¶] ZEN: how, what, I mean, you told me you seen . . . [¶] ECHEVERRIA: He, he, . . . [¶] ZEN: him. You know, how, there’s no point . . . [¶] ECHEVERRIA: Basically . . . [¶] ZEN: for you to realize or assume or . . . [¶] ECHEVERRIA: Well, . . . [¶] ZEN: or something. [¶] ECHEVERRIA: Well, the, for the fact of the main thing is, is that, he was gone during that time. He was wearing that outfit. The sketch looked just like him. The truck was gone the next day, in the morning. [¶] ZEN: Okay. [¶] ECHEVERRIA: And so everything kind of made sense. And I even told the family, I’m like, he did it. I’m like, you want us to think that he’s gonna lend the truck out to some guy. And he’s gonna be car-less for like, a year and a half? Come on. [¶] ZEN: Okay. [¶] ECHEVERRIA: You know. [¶] ZEN: That’s what (inaudible) said. That, that’s kind of what I figured. But I just wanted to make sure.” (Italics and colons added, ellipses in original.)
“ZEN: Well what can you tell me about this? [¶] LOPEZ: Honestly? Just . . . [¶] ZEN: Yeah. [¶] LOPEZ: That, what I know, what, what I think about who did it and who was with them? Honestly I’ll tell you, I kind of think that it was stupid Paul, sorry. [¶] ZEN: That’s all right, I know who he is. [¶] LOPEZ: But then, I don’t know who else could have been with him. I do know that Ed was working that night.”
Defendant may well be correct in asserting that the statements were objectionable under either the general rule governing lay opinion (Evid. Code, § 800) or a specific prohibition in caselaw against opinion testimony concerning a defendant’s guilt or innocence of the charged offense (People v. Coffman (2004) 34 Cal.4th 1, 77). As defendant implicitly concedes, however, any such objection was presumptively forfeited by failure to assert it during trial. (See Evid. Code, § 353.) Defendant is thus relegated once again to a contention that trial counsel rendered inadequate assistance when he failed to object. But again the record fails to establish that counsel lacked a tactical reason for allowing these opinions into evidence. Indeed it strongly suggests the opposite—that Echeverria’s and Lopez’s accusations of defendant played a central role in the defense strategy, which was to characterize these opinions as malicious lies, part of a concerted effort to get even with defendant, which the prosecution uncritically embraced in lieu of an adequate independent investigation.
Counsel introduced this theme in his argument to the jury by describing Echeverria and Lopez, together with Sarah Sanchez, as “a category of witnesses that I call the informants,” who he said “came forward and told a story that has forever changed Paul Zapata’s life and their own.” By doing so, he said, they “sent Detective Zen and other officers of the Gilroy Police Department on nothing less and nothing more than a snipe hunt.” Shortly thereafter he continued, “[T]he prosecution and investigat[ors] . . . so embraced the story related by Sarah [Sanchez] and Nancy Echeverria that they were blinded to other issues. That was the story that we’re going with and that’s the story we’re going to stick with no matter what.” Counsel returned to this theme over and over, accusing Detective Zen of “h[angin]g on to a theory he wasn’t going to let go of” and the prosecution of committing a “wrong” by “[e]mbracing somebody’s story as true without proving it . . . .” Later he referred to “[i]nformation that . . . whether it’s right or wrong you’ve got your arms around it and you’re not going to let go of it.” Later still he accused the prosecution of “embrac[ing] . . . these wild stories,” and adopting a “yarn” spun by Echeverria. Similarly it had “embraced” a “story” by Sarah Sanchez, “and damn it we’re going to prove it up by the prosecution it’s got to be the truth and anybody who says it’s not is a damn liar.”
In effect counsel charged investigators and the prosecution with stubborn credulousness. In doing so he did not hesitate to cite the opinions they had supposedly “embraced”—the evidence now challenged as inadmissible. Thus he said of Echeverria, “The thing that’s most telling is we get down here, you know, and Detective Zen is pressing her on how she got to form this opinion. And she says, well, the fact of the main thing is that he was gone during that time. He was gone during that time. He was wearing that outfit. The sketch looked just like him. The truck was gone the next day in the morning. False, false and false.”
With respect to Lopez, counsel not only alluded to but quoted, more than once, the supposedly offending opinion: “[W]hat’s Victoria’s stake in this? Could it be her husband? Could it be her brother-in-law? Her friendship with Victoria [sic] and Nancy? You know, it was—you’ll have the transcript of her conversation with Detective Zen, but she starts out, you know, Detective Zen wants to know what she can tell him about this. And she says—and quote here is that what I want to know—well, what I think who did it. And who was with them. Honestly, I’ll tell you, I kind of think it was stupid Paul. Sorry. And then she goes—and Detective Zen says well—and then she goes but then I don’t know else who could have been with him. I know that Ed was working that night. Well, we assume Ed was working that night. We assume Ed was at that party that night. There’s no evidence other than statements by Nancy and Victoria about Ed. You know, the one thing she tells you, it wasn’t my husband [i.e., Ed], he was working. But other than that it was probably stupid Paul. . . . [C]ould Detective Zen have asked Victoria where was Paul living? Did you see the truck? You know—you know, if you don’t ask the questions you don’t know the answers to them, but in this business it’s your job to know the answers and to take the next step because so much is at stake. And that didn’t happen. It never happened.”
Defendant’s appellate challenge does not extend to the statements of opinion by Sarah Sanchez, the witness who most directly incriminated defendant by describing a conversation in which he admitted shooting someone at the 7-Eleven. But trial counsel’s treatment of Sanchez’s statements of opinion is highly germane to the existence of a tactical motive for acquiescing in the introduction of the similar statements by Echeverria and Lopez. As with Lopez, counsel directly quoted Sanchez’s opinion that “I know who shot up 7- ELEVEN. I know who shot up the 7- ELEVEN.” But counsel went beyond using that evidence; it was he who introduced that evidence, as he emphatically pointed out to the jury, as if the prosecutor’s failure to do so betrayed some gap in its theory of the case. Thus counsel pointed out that he himself had called as a witness an officer who was, as counsel put it, “the first person that heard the words out of Sarah Sanchez’s mouth, I know who shot up the 7-ELEVEN. She is the person who tells Officer Gillio I know who shot up the 7- ELEVEN. Paul Zapata.” Counsel repeated this supposedly pernicious statement of opinion a few pages later: “[F]irst Sarah says I know who shot up the 7- ELEVEN. Then she tells Officer Gillio Paul told me I shot up the 7- ELEVEN. You know, it’s just—those are her words. It’s just—it’s just silliness.”
In sum, the defense strategy with respect to these witnesses was not only to accuse the prosecution of failing to adequately check their accounts but to accuse the witnesses themselves of framing defendant for purposes of romantic revenge, solidarity with one another, and in Lopez’s case, to obviate official threats to the custody of her children. Given that strategy, counsel could reasonably conclude that it would have been worse than futile to separate their purely factual assertions from their opinions, admitting the former while excluding the latter. The whole idea was that these three witnesses were out to get defendant. The fact that they flatly accused him of committing the crimes, without professing to have any firsthand knowledge of the subject, supported that theory. Defense counsel had no apparent ground to interfere with proof of that fact. Any challenge to such proof is, at least for purposes of direct appeal, doomed.
III. Officer’s Opinion on Sketch
Defendant contends that counsel rendered ineffective assistance by failing to object to testimony by San Jose Police Officer Gilbert Zamora that the sketch he drew of the killer under the direction of eyewitness Puphal resembled in certain respects a June 2001 photograph of defendant. Defense counsel did assert, in an unrecorded sidebar conference, an advance objection to improper opinion testimony comparing the photo and the sketch, but after the witness testified counsel said that he had not found any of the testimony objectionable. On appeal this is charged as ineffective assistance because the cited testimony “did not meet the requirements for admissibility as a lay opinion” in that it was not “helpful to the jury’s understanding of any properly admitted testimony.”
The offending testimony is transcribed as follows:
The court stated, “We discussed a matter off the record that we need to put on the record that had to do [with the] . . . proposed testimony of Officer Zamora [in] the category of comparison between the photograph . . . and the sketch.” Asked to put his “objection in that regard” on the record, counsel said, “Your honor, at that point in time it was my concern that Mr. Zamora was going to be asked what I felt would be an improper opinion. That’s not what transpired. And my concerns were allayed.”
We agree that this is not a type of testimony to which a jury should ordinarily be exposed. It was clear from Officer Zamora’s testimony that he had no independent recollection of anything about this case. He was only able from his own knowledge to identify the sketch (which he had not seen since its creation), to describe the procedures he normally used in creating such a sketch, and to explain the notations he made on it. The prosecutor made no attempt to qualify him as an expert on physiognomic resemblance or any other subject. He was therefore entitled to give an opinion only if the two conditions for admitting lay opinion, as set forth in Evidence Code section 800, were present. Respondent alludes to the first condition by asserting that the testimony was unobjectionable because “Zamora’s comparison of his sketch and the photo of appellant was based on his own perception . . . .” (See Evid. Code, § 800, subd. (a) [opinion must be “[r]ationally based on the perception of the witness”].) But respondent offers no rationale for finding the second condition, i.e., that the testimony be “[h]elpful to a clear understanding of [the witness’s] testimony.” (Id., subd. (b).) We fail to see how it would assist the jury in understanding Officer Zamora’s testimony to hear him express the belief that features in a sketch he did not recall making resembled those in a photograph he had never seen before.
Again, however, it is impossible to say on a cold appellate record that counsel could have had no rational tactical motive for his failure to object. The degree of resemblance between the two depictions was a matter as to which anyone’s opinion was as good as anyone else’s. Counsel may have believed that the risk of letting the jury hear the artist’s opinions on that subject was low enough to justify the possible benefits, most obviously, that the jury might find less resemblance than he claimed, and thus find the prosecution’s overall case that much less credible.
For similar reasons, we are unable to conclude that the admission of this evidence was likely to have any effect on the verdict. (See Evid. Code, § 353, subd. (b); People v. Watson (1956) 46 Cal.2d 818, 836.) Officer Zamora did not say that the sketch depicted the same person as the photo; on the contrary, he would only say that there was “some likeness” and that certain features were “comparable.” Having examined both exhibits, we do not believe there is any real possibility that the jury would have failed to reach this same conclusion on its own. There are arguable resemblances, as well as differences, between them. The critical question was whether the resemblance was great enough to warrant an inference that defendant was the person seen by the eyewitness Puphal and described by him to Officer Zamora. The latter was not asked, and did not attempt to answer, that question.
At bottom the effect of the challenged testimony was only to allow the prosecutor to use the witness as a vehicle to enumerate his talking points with respect to resemblances between the sketch and defendant’s appearance at that time. It was no worse than if the prosecutor had stopped in the middle of trial to draw the jury’s attention to those features as to which he wished them to find a resemblance. While this would certainly be an irregular mode of proceeding, and an objection to it would be well taken, it is quite impossible to say on this record that the equivalent questioning of Officer Zamora inflicted any prejudice on defendant. It therefore cannot sustain reversal of the judgment.
IV. Extrajudicial Statements About Truck
A. Introduction
A substantial part of the prosecution case rested on the premise that defendant’s white Toyota pickup, which matched one seen conveying the apparent gunman away from the murder scene, disappeared from the Gilroy area immediately after the shooting. The prosecutor argued to the jury that the vehicle was initially hidden at “the Ramirez ranch” near Gilroy and was then moved to the home of Rico “Sparky” Clarke in Stockton. Citing statements by defendant and others reported to investigators by Victoria Lopez and Nancy Echeverria, the prosecutor asked jurors, “So how many different sources do we need [to conclude] that the car is in Stockton[?]”
Defendant contends that trial counsel rendered ineffective assistance by acquiescing in the admission of the evidence on which this argument was based. He contends that the evidence should have been objected to, and excluded, on grounds that it was hearsay. He specifically challenges testimony and pretrial statements by Nancy Echeverria and Victoria Lopez concerning rumored movements of the truck, and testimony by Detective Zen concerning the history of a certain television program alluded to in a recorded jailhouse conversation contended by the prosecution to concern the continued concealment of the truck.
This argument must be addressed witness-by-witness.
B. Echeverria
Defendant contends that Echeverria should not have been permitted to testify that, as stated in the brief, defendant “sent his truck to Rico Clarke in Stockton and that it remained there until [defendant’s] family had it towed back to Hollister in 2002.” Defendant asserts that this testimony had no apparent foundation in personal knowledge, and that much of it was hearsay. He contends that the same is true of much of her pretrial statement. He asserts that counsel could not competently forego these objections, and that the failure to object should therefore be overlooked, or relief should be granted on grounds of ineffective assistance.
Defendant also claims a violation of his constitutional right to confront adverse witnesses, but that argument founders as to Eccheveria and Lopez because both were cross-examined at trial. “[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” (Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9, citing California v. Green (1970) 399 U.S. 149, 162; see People v. Lewis (2006) 39 Cal.4th 970, 1028, fn. 19.) The objection would have more traction with respect to the extrajudicial statements about the television program recited by Detective Zen, but as will appear, counsel may have had a sound tactical reason for allowing that evidence.
Echeverria’s pretrial statements did not become admissible over a hearsay objection merely because she testified at trial. (See Evid. Code, §§ 1200, 1235-1238.) However, insofar as her trial testimony diverged from her pretrial statements, the latter came within the hearsay exception for prior inconsistent statements. (Evid. Code, §§ 1235, 770.) (See fn. 9, post.) They could still be objected to as hearsay insofar as they recapitulated extrajudicial statements by others. (See Evid. Code, § 1201; 1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 6, pp. 684-685.) It is these recapitulated statements by others—some named, some not—that necessarily form the subject of the present challenge.
Again the argument fails because the record affirmatively suggests a possible tactical motive for counsel’s failure to object: he may have wanted the jury to hear this evidence in light of other evidence on the same subject that was not subject to hearsay and foundational objections. In January 2003, in recorded statements ultimately placed in evidence, Echeverria listed, among circumstances that led her to “know that [defendant] did it,” her perception that “[t]he truck was gone the next day, in the morning.” She cited the unlikelihood of defendant’s “lend[ing] the truck out to some guy” and going “car-less for like, a year and a half.” When Zen began reviewing the listed circumstances with her, she again said, “That truck was gone the very next morning or next day.” Asked how she knew this, she said, “He didn’t drive it no more,” and “Everybody knew that it was gone like, the next day.”
So far as the record shows, Echeverria was speaking from her own knowledge when she said the truck was “gone the very next . . . day” and that “[h]e didn’t drive it no more.” As defendant’s girlfriend she was presumably in a position to know when the truck disappeared. Since these were matters she personally observed, her testimony about them appears unobjectionable. We must therefore assume that these statements could have been admitted in any case.
Technically they did not become admissible until Echeverria contradicted them at trial, which she did in many respects: Asked whether she had seen the truck after the murder, she replied that she had seen defendant driving it maybe 10 hours after, and in the general vicinity of, the shooting. She later testified that she did not see the truck from the time of the shooting until August 2002, when she saw it parked in defendant’s driveway in Hollister. However she ultimately reaffirmed her testimony that she saw defendant openly driving it a few hours after the shooting. She also testified that some time in the late spring or early summer of 2001, defendant used the truck to give her a ride to San Jose. She testified that she next saw the truck in August 2002, after unnamed persons “towed it down” from Rico Clarke’s house, or thereabouts, to Hollister, where defendant had moved from Gilroy in mid-June of 2001. When she saw it, unspecified persons were trying to repair it; it was apparently being used for storage, and had a lot of junk in the back. A few months after this she called police, telling them the pickup was parked in the garage of Priscilla Pena. She testified that she had wanted to “burn” Pena and defendant “in a big way,” and had lied to police in order to do so. Much of this testimony was inconsistent with her pretrial statements about the immediate disappearance of the truck. As a result those statements were admissible over a hearsay objection.
Had Echeverria’s testimony concerning the truck been limited to the fact that it disappeared after the shooting, the jury could well have been left with a strong and straightforward impression that it was concealed due to consciousness of guilt on the part of those associated with it—most obviously, its owner. To the extent Echeverria gave additional details about its disposition, they did little to strengthen, and might reasonably be thought to weaken, this impression. For example, the statement “Everybody knew it was gone” might support an argument that Echeverria was not speaking from personal knowledge but was merely reciting conventional, and perhaps erroneous, wisdom. Much the same thinking applies to Echeverria’s initial answer, when asked where defendant took the truck, “Um, I guess, to, was it Stockton where Rico was at?” (Question mark in transcript.) She then said, “Stockton or Sacramento. I’m not sure.” Again, the tentativeness of the answer might be hoped to cast doubt on its overall accuracy, and perhaps on the accuracy of the otherwise unobjectionable statements that accompanied it.
A more complicated question is presented by another portion of Echeverria’s pretrial statement. Pressed to identify the source of her information, she eventually described a conversation with the “mom” of “Rico’s girlfriend” or “Rico’s wife,” who said she had seen a white truck. This apparently led Echeverria to ask Rico’s wife whether “you guys have Paul’s truck,” to which she replied, “yeah, we have it. We’re driving it around.” This testimony was unquestionably objectionable insofar as it was offered to prove that Rico’s family in fact had defendant’s truck and was “driving it around.” However, defense counsel might have acquiesced in the admission of this evidence not because it helped the defense, but because Echeverria’s trial testimony on the same subject might do so. At trial she acknowledged having a conversation about the truck with Rico’s mother or grandmother, whom she quoted as saying that the truck “was over there,” but was “broken down.” Counsel might have welcomed evidence that the truck was “broken down” because it provided a relatively innocuous explanation for the protracted nature of its disappearance. Defense counsel sought to bolster this point on cross-examination, eliciting testimony that the truck had broken down two or three times and that in the summer of 2001 defendant could not afford to get it fixed. Yet there is no evidence that Echeverria could claim to know from personal knowledge that the truck was broken down. Counsel might therefore be happy to allow the prosecution to introduce hearsay testimony about the truck because it would open the door to this evidence of disrepair. With this testimony, the defense had a concrete explanation to compete with the inference of deliberate concealment put forth by the prosecution. It is impossible to say that a reasonable and competent attorney might not choose to pursue such a strategy.
Counsel also sought to elicit testimony to this effect from Sarah Sanchez, but she denied being aware of mechanical problems with the truck.
Similarly it is impossible to say that the admission of the challenged evidence worked any prejudice on the defense. As we have already noted, Echeverria’s statements that the truck disappeared and that defendant stopped driving it immediately after the shooting would have come in regardless of the posited objections. It is far from clear that sending the case to the jury in that posture would have improved defendant’s chances of a more favorable verdict. It might very well have worsened them. This is particularly true since the evidence thus admitted would seem, as far as it went, to corroborate the more directly incriminating testimony of Sarah Sanchez, who said that around the time of the shooting, she gave another OSP member a ride to the Ramirez ranch near Gilroy, where defendant, with whom she was then on good terms, approached and asked her discreetly if she “could do him a favor,” i.e., “if I could drive his truck to Stockton or to Manteca.” She could not recall whether he mentioned a specific person to whom it should be delivered. When she asked him why, “he said he wanted to take it over there because he wanted to—he needed to get rid of it, and he was—rumor had already been around that he wanted to sell it or something, so I figured, okay, he’s selling the car. Then I tell him, nah, wait a minute. It was iffy. I told him why do you want me to take it. And he said well, um, that he had—he had shot up somebody at 7-ELEVEN.” She did not take this comment seriously until she saw the sketch of Juan Trigueros’s killer in the paper. In the fall of 2001, she saw a truck that she thought was defendant’s parked near the Manteca home of the mother of Rico Clarke, to whom Sancez was distantly related.
Even apart from the direct admission of guilt thus attributed to defendant, this testimony tended to show that he was anxious to hide the truck. Coupled with the fact of its disappearance, as reported by Echeverria, it supported a reasonably strong inference of guilt. We cannot say that defendant’s chances of acquittal would have been improved by excluding the hearsay portions of Echeverria’s testimony and pretrial statements.
C. Lopez
In pretrial statements also placed before the jury, Victoria Lopez told Detective Zen that the truck had “broken down,” apparently while in the possession of “Sparkie” (Rico Clarke), who then “got [defendant] a black Taurus to use.” Detective Zen asked, “Was it broken down or did they just stash it out?” to which she replied, “The story they gave me is that it broke down when they were, when Paul was working with, with Sparkie.” She then said that defendant used the black Taurus for “maybe about three months” right after the murder. Zen asked if “they just swapped,” to which she replied, “That, see that’s why I was like, I told Edward, ‘What happened to the truck?’ And he’s like, he said that it was broke, that, it’s at Sparkie’s. And I was like, ‘Oh, okay.’ And then I had told [defendant], ‘what happened to the truck?’ And he said that, he goes, ‘Oh, well, it broke down when I was working with Sparkie.’ He goes, ‘He let me come over in this car.’ ”
At trial Lopez attempted to retreat from these statements in various respects. First she professed not to be sure that defendant had ever driven a white truck; then she testified that the truck as depicted in a photographic exhibit seemed “kind of small” to be defendant’s. Then she testified that she saw him driving a white pickup after the shooting, but “sometime after May I guess until he got a black car.” She largely denied any memory of her statements to Detective Zen.
Defendant contends that Lopez’s recorded statements to Detective Zen were objectionable hearsay insofar as she said “that right after the murder, ‘they’ said the truck had broken down when [defendant] was working with ‘Sparky’ Clarke,” and “that Sparky had the truck and had given [defendant] a black Taurus to use.” Defendant notes that Lopez said that she had learned some of this information from her husband Edward. He acknowledges, however, that she also told Zen that “Spook”—meaning defendant himself—had told her “ ‘it broke down when I was working with Sparkie’ ”—meaning Clarke.
Again, some of this testimony may have been subject to exclusion as hearsay or for lack of foundation, but again it is impossible to say that counsel had no tactical motive for failing to require that the objectionable matter be excised and excluded. Lopez’s pretrial statement has defendant himself telling her that the truck was in the possession of Rico “Sparky” Clarke. At trial Lopez flatly denied that defendant had told her such a thing. This made her pretrial statement admissible as a prior inconsistent statement. (Evid. Code, § 1235.) Defendant’s own statements are of course admissible, at the prosecution’s instance, as statements by a party opponent. (Evid. Code, § 1220.) Given that this evidence was admissible over a hearsay objection, it is impossible to say that counsel had no tactical reason for failing to object to other evidence to similar effect, or that the admission of such evidence was prejudicial to the defense.
D. Detective Zen
The prosecution called Anthony Villalobos to authenticate a recorded telephone conversation to which he was a party. Villalobos, who denied that he was an OSP member but who wore a number of tattoos apparently suggesting Norteño allegiance or affiliation, reluctantly recalled participating in the phone conversation on January 3, 2003, with Eric Garcia, an OSP member known as Lurch. The conversation was recorded because it originated in the Santa Clara County Jail. In it, Villalobos referred to a supposed scene in the television program Fugitive Watch involving a white truck. When Garcia seemed not to comprehend, Villalobos said, “[R]emember that, remember that white truck along time ago,” and then explained, “[I]t[’]s fucking still there. Chivo came over here ear [sic] . . . about like 15 minutes ago, 20 minutes ago, told him we needed to find [a way] to get it out of here right now.” (Ellipsis in transcript.) Later he said, “I already talked to that ugly mother fucker, that scary guy . . . . [¶] . . . [¶] And he said fucking and he said get rid of it anyway, it don’t matter. So fucking I called Chivo and Chivo said we can take it to his people’s house out in the country and fucking part it out or whatever.” Villalobos conceded at trial that the white truck alluded to had been defendant’s, which he knew the police had been looking for. At the same time he seemed to try to insist that he had merely seen a white truck in a magazine article or television program produced by Fugitive Watch, a local crime-prevention organization. He professed not to remember who he meant by “the scary guy,” though he eventually conceded that he was “possibl[y]” referring in a “covert” manner to defendant, whose gang nickname was “Spooky.” He also acknowledged that by referring to the scene with a white truck, he might have been speaking “[s]lightly” in “code.” At the same time he insisted that he was not referring to defendant’s truck, but only something “similar to that,” which he had seen on Fugitive Watch. Eventually the prosecutor asked, “What if I was [sic] to tell you that it never ran on Fugitive Watch?” Defendant replied, “I’d have to say you’re lying,” and insisted, “I seen it on Fugitive Watch.”
It was in this context that Detective Zen gave the testimony targeted by the present claim of error. The prosecutor asked Zen whether he had “made an effort to determine whether or not . . . the . . . May 19, 2001 7-ELEVEN murder, ever ran with the show Fugitive Watch either on the television show or in their print publication.” In response, without objection, Zen testified as follows: “I talked to Ray Shields of the San Jose Police Department, the person that is co-owner of the Fugitive Watch. Let me back up. I first asked another detective with the Gilroy Police Department to check on it for me. He checked the dates of 2000/2001 and found that there was no airing of Fugitive Watch having to do with this case. I then realized that he only checked 2001. I called Mr. Shields back and told him or asked him, which he agreed and checked from the year 2000 until present and he said that it was not aired. To the best of my knowledge it wasn’t aired while I was assigned this case, and to the best of Detective Callahan’s knowledge it wasn’t aired when he was assigned to the case.” He confirmed that this “was both on the television show and print publication of Fugitive Watch,” which were “the same company and the same owner.”
Again defendant is correct in asserting that the challenged evidence might have been successfully objected to as hearsay. Again his claim of error fails, however, for want of a showing that counsel lacked a tactical reason for declining to assert the objection. Again it is easy to posit a possible tactical rationale not dispelled by the present record: that the hearsay source of the evidence in question—the program’s co-owner, who was apparently a San Jose police officer—could readily be summoned to the stand, where he might give testimony more damaging than the hearsay evidence actually admitted. Here one potential for increased damage is reflected in the failure of Detective Zen’s testimony to squarely meet the most exculpatory interpretation that might be placed on Villalobos’s testimony. Villalobos did not assert—at least not clearly—that he saw an episode of Fugitive Watch concerning the 7-Eleven shooting. He claimed, or at least could be understood to claim, to have seen a white pickup being sought in connection with some unspecified murder, and to have been concerned that the mere resemblance between that pickup and defendant’s, which he had been told was sought by police, might bring unwanted police attention to Villalobos’s own activities, which he conceded tended toward the unlawful. Had a witness with personal knowledge of the program’s content been called, he might have testified that there was never any episode involving a pickup resembling defendant’s. Defense counsel might thus have very well concluded that there was little promise and much risk in objecting to Zen’s hearsay testimony.
V. Closing Arguments
A. Introduction
Defendant contends that trial counsel inexcusably allowed the prosecutor to commit “extensive misconduct” in closing argument by (1) offering inflammatory speculation about Juan Trigueros’s experience of the last moments of life; (2) inviting the jury to infer a criminal disposition from defendant’s prior crimes; (3) improperly characterizing the reasonable doubt standard of proof; (4) alluding indirectly to defendant’s failure to testify; (5) commenting upon, and urging as affirmative evidence, Sarah Sanchez’s invocation of the right not to incriminate herself; (6) characterizing as a “spontaneous statement” Nancy Echeverria’s laughter upon seeing the police sketch; (7) suggesting, without evidentiary support, that the shooter had “go[ne] back [to] get a gun” before killing Juan Trigueros; (8) mischaracterizing the relative heights of the victim and the shooter; and (9) “offer[ing] his own testimony about the meaning of some of the records for Mr. Zapata’s truck.”
“ ‘The applicable federal and state standards regarding prosecutorial misconduct are well established. “ ‘A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.].” (People v. Hill (1998) 17 Cal.4th 800, 819 (Hill).) Conduct falling short of this level of egregiousness may constitute prosecutorial misconduct under state law, but only if it “involves ‘ “ ‘ “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” ’ ” [Citation.]’ [Citation].” (Ibid.) The public prosecutor is “held to an elevated standard of conduct,” compared to that of attorneys generally, “because of the unique function he or she performs in representing the interests, and in exercising the sovereign power, of the state.” (Id. at p. 820.) In determining whether the prosecutor violated this elevated standard, his state of mind is immaterial. (Id. at pp. 822–823.) Indeed the term “ ‘misconduct’ ” is “somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.” (Id. at p. 823, fn. 1.)
B. Griffin Error
Defendant contends that the prosecutor committed misconduct by alluding to the absence of defense evidence or explanation on certain points of controversy. Thus the prosecutor noted that while there was “talk about” how defendant’s truck “breaks down all the time,” there was “no evidence that it broke down” and specifically no “witness who came in and said, oh yeah, I was with Paul and it broke down, you know, and we took it out to the Ramirez brother[s’] ranch.” The prosecutor also alluded, in his concluding argument, to the failure of the defense to present any alibi testimony: “We don’t know where he was at 2:03 in the morning do we? And the defense didn’t put on a witness, an alibi witness to say, hey, he was with me in San Jose, he was with me in Hollister. We don’t know where he was. Oh, yeah, we do. He was at the 7-ELEVEN on Leavesley killing Juan Trigueros.”
Defendant contends that these remarks violated the rule that prosecutorial comment upon the defendant’s failure to testify has the effect of penalizing him for exercising his right Fifth Amendment right to remain silent, and thus operates in derogation of that right. (Griffin v. California (1965) 380 U.S. 609, 611-615 (Griffin).) Defendant does not contend that the prosecutor commented explicitly on his failure to testify, as the prosecutor and court did in Griffin. Instead he attempts to compare this case to three others in which Griffin was held not only to bar the prosecutor from expressly urging the jury to draw an incriminating inference from the defendant’s failure to testify, but also to prohibit commentary that implicitly draws jurors’ attention to that failure. (People v. Vargas (1973) 9 Cal.3d 470,476-477 (Vargas); People v. Ryner (1985) 164 Cal.App.3d 1075, 1084-1085 (Ryner); People v. Medina (1974) 41 Cal.App.3d 438, 457 (Medina).)
Defendant overstates the breadth of these cases’ holdings. He describes Medina, as holding that the prosecutor committed misconduct under Griffin merely by characterizing the testimony of prosecution witnesses as “ ‘unrefuted.’ ” But this was only one of several comments that, in combination, unmistakably highlighted the defendants’ failure to testify. The other comments alluded to the fact that all eyewitnesses except the two defendants “ ‘were put under oath’ ” and “ ‘subject to perjury.’ ” (Medina, supra, 41 Cal.App.3d at p. 457.) The reviewing court held that “these passages in combination” had the “net effect” of “urg[ing] the jury to believe the testimony of the three accomplice witnesses because the defendants, who were the only ones who could have refuted it, did not take the stand and subject themselves to cross-examination and to prosecution for perjury.” (Ibid.) This in turn was plain error under Griffin. (Id. at pp. 457-460.)
In Ryner, supra, 164 Cal.App.3d at page 1084, footnote 3, the prosecutor described the defendant by name as “[t]he one who can tell you what happened, who can bring you name and addresses of witnesses who saw exactly what happened . . . .” This was a far more direct invitation to consider the defendant’s silence than anything before us. The court agreed that it was Griffin error, but concluded that it was harmless.
The decision in Vargas, supra, 9 Cal.3d 470, seems to weigh more against defendant’s contention than in favor of it. The court there pointed out that Griffin’s prohibition against comment on the defendant’s silence “ ‘does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citations.]’ ” (Id. at p. 475, quoting People v. Burns (1969) 270 Cal.App.2d 238, 247; italics added.) The court found no Griffin error in the prosecutor’s asking the jury to consider why the defense had failed to produce any witnesses to show where the defendant and a codefendant were at the time of the crime. (Id. at pp. 476, fn. 5, 474.) The prosecutor’s argument strayed into Griffin error only when he referred to the absence of a “ ‘denial’ ” of prosecution evidence in a context where the quoted term was likely to “connote[] a personal response by the accused himself.” (Id. at p. 476.) While the prosecutor may have “only intended to point out to the jury that the defense had introduced no evidence” concerning the defendants’ whereabouts, the language he used was “sufficiently ambiguous in this respect to lead us to conclude that Griffin error was committed.” (Id. at p. 476.) The court went on to hold the error harmless beyond a reasonable doubt, noting that the allusion to defendant’s silence was “much less direct” than in most cases finding reversible Griffin error (id. at p. 478), that it was “ ‘brief and mild’ ” (id. at p. 479), and that the case against the defendant was “overwhelming” (id. at p. 480).
We do not believe the prosecutor here ran afoul of Griffin as applied in these cases. The challenged comments drew attention to the lack of defense evidence that defendant’s pickup was actually broken down after the shooting, and to the absence of any evidence of defendant’s whereabouts when the shooting took place. The first point scarcely even hints at Griffin error since if defendant’s truck was in fact broken down there might be any number of witnesses who could so testify. The second point has more substance because a defendant may indeed be the sole witness to his whereabouts if he is alone. But there was no reason to suppose that defendant was alone. He had left the party with another OSP member, whom he was supposedly giving a ride to work. But assuming he dropped that member off before the shooting, there is no reason to suppose that he spent the rest of the evening in solitude. There was simply no reason to assume that defendant was the only witness to his whereabouts at that time. Drawing attention to the absence of alibi evidence was therefore not an impermissible comment upon defendant’s own failure to testify.
C. Predisposition
Nor do we find serious misconduct in the remarks cited by defendant as an improper invitation to infer guilt from criminal predisposition. The remarks were addressed to three points based on defendant’s history of gang-related violence against Sureños and Mexican nationals: first, that his demonstrated willingness to assault such persons reduced the time it would take him to premeditate a killing for purposes of first degree murder; second, that his explicit threats to shoot one group of victims were an admission that he had a gun as well as that he was willing to inflict lethal force on such persons; and third, that his manifest willingness to attack such persons established a motive as well as the requisite intent to murder Juan Trigueros. It is true that the prosecutor brushed the third rail of character evidence by saying, in connection with the first point, “And we all know it’s this defendant has premeditated murder, has premeditated on Eight Street member, has premeditated attacks on Mexican nationals for years. He’s predisposed to that, and you can take that into consideration.” We are uncertain that this statement, closely parsed, was an inaccurate characterization of the law. The vice at which the rule against character evidence chiefly aims is a direct inference of guilt based upon a defendant’s apparent predisposition to commit crimes of the type charged. With one exception, the arguments challenged here all assumed that defendant killed Juan Trigueros; his predisposition to inflict violence of persons like Trigueros was argued as a basis not to identify defendant as the killer but to infer a particular element of the offense, i.e., intent or premeditation. The one exception was motive, the apparent argument here being that defendant’s manifest hatred of persons like Trigueros constituted a motive to kill him, which in turn supported several incriminating inferences, including that it was indeed defendant who committed this seemingly pointless killing. Any inaccuracy in the argument appears too slight to prejudice defendant, particularly since the jury was plainly instructed not to draw an inference of guilt from predisposition.
Defendant posits a false exclusivity by saying that the evidence of prior crimes was admitted to show motive, but not identity. Motive often is circumstantial evidence of identity, although it may also support inferences concerning other aspects of the case, particularly (as here) mental state. We are directed to no point at which the court or prosecutor so limited the purpose of this evidence that the jury could not draw an otherwise reasonable inference that defendant, having a motive to commit the murder, was in fact the person who committed the murder. The only real weakness in this inference is that the motive thus attributed to defendant appears to have been shared by other OSP members. This goes to the weight to be given the inference, not the propriety of drawing it—or arguing for it.
D. Sanchez Assertion of Fifth Amendment
Defendant also charges as misconduct the prosecutor’s invitation to the jury to infer that Sarah Sanchez was a particularly reliable auxiliary of the OSP gang based on her assertion of the Fifth Amendment when she was asked whether she had “helped O.S.P. during their earlier years.” The prosecutor argued, “The testimony came out when I asked her have you [helped] O.S.P. she said I don’t want to incriminate myself. Okay. She’s a player at that point. She’s somebody they can trust. She’s friends with the defendant. She’s the perfect person to drive that car to Rico’s house.”
We agree that this was misconduct in that it invited an improper inference from a witness’s invocation of the Fifth Amendment (see Evid. Code, § 913, subd. (a); People v. Padilla (1995) 11 Cal.4th 891, 948; People v. Mincey (1992) 2 Cal.4th 408, 441; Doyle v. Ohio (1976) 426 U.S. 610, 619, fn. 10; Wainwright v. Greenfield (1986) 474 U.S. 284, 291), and invited the jury to treat unanswered questions as substantive evidence (see People v. Rios (1985) 163 Cal.App.3d 852, 868-869). However we see no reasonable possibility that this argument had any effect on the outcome. Sanchez’s invocation of the privilege was surrounded by her testimony to similar effect—that she “hung around with” OSP, was “friendly to” its members, and sometimes did them favors such as “[t]ake them to the store, give them a ride, . . . make a phone call for them . . . .” She affirmed that she was “somebody they could rely on early on.” She was about four months pregnant by an OSP member at the time of the Juan Trigueros murder. The whole subject of her relationship to the gang was peripheral to the case. That her involvement rose to levels of criminal culpability, even if shown, would add nothing of measurable substance to the case against defendant. Thus her constitutionally protected unwillingness to testify about any “help” she rendered to the gang, even if improperly viewed by the jury as evidence that she rendered help of a criminal nature, can have had no conceivable effect on the jury’s assessment of defendant’s guilt.
E. Reasonable Doubt, Burden of Proof
Defendant challenges the prosecutor’s assertion to the jury that for a doubt to support acquittal it must be “based on the evidence.” Defendant cites Hill, supra, 17 Cal.4th 800, 831-832, which found misconduct in a prosecutor’s statement that for a doubt to be reasonable, “there [had] to be some evidence on which to base” it. (Id. at p. 831.) While the court found the remarks there “somewhat ambiguous,” it declared them improper insofar as they (1) suggested that the prosecutor did not have the burden of proving every element of the offense beyond a reasonable doubt, and (2) “claim[ed] there must be some affirmative evidence demonstrating a reasonable doubt . . . .” (Ibid.) The latter point was “mistaken as to the law, for the jury may simply not be persuaded by the prosecution’s evidence.” (Ibid.) While finding the question “arguably close,” the court concluded that it was “reasonably likely [the prosecutor’s] comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt. Accordingly, we conclude [that she] committed misconduct by misstating the law.” (Id. at p. 832.) Added to other errors, including numerous instances of misconduct to which counsel objected without securing any relief from the trial court, the misconduct warranted reversal. (Id. at pp. 845-846.)
“What it breaks down to is that you can speculate about a lot of things, you can guess about a lot of things, but unless they’re based on evidence ignore them. There’s got to be some connection to the evidence. Everything relating to human affairs is open to some possible or imaginary doubt, right. So if the standard was, well, I have a doubt you could never convict anybody because you’re always going to have a doubt. And I guarantee you, and the evidence is very strong in this case, it should be a relatively easy case for you to decide with all this evidence. But somebody is going to get back there any [sic] say I have a doubt, you know, something is bothering me here or I just have this feeling. Well, when they say that, the best way to address that is is your doubt based on the evidence or are you speculating or are you guessing at something, and that’s the best way to look at that.” (Italics added.)
We do not believe the prosecutor’s statements here shifted the burden of proof, but they could be understood to convey the second message condemned in Hill, i.e., that unless a doubt is suggested by some affirmative evidence, it is not “reasonable” and does not warrant acquittal. In fact, of course, the jury may simply find the prosecution’s showing not sufficiently persuasive to carry its burden of eliminating reasonable doubts. To the extent the prosecutor suggested otherwise, he misstated the governing law. Still the statements were less egregious than those in Hill, because they were ambiguous in a way that the statements there were not. In that case the plain meaning of the comments was that a doubt must be “demonstrate[ed]” by “some affirmative evidence.” (Hill, supra, 17 Cal.4th at p. 831.) The statement here that a doubt must be “based on some evidence” may have conveyed that same meaning, or it may have been understood to mean only that jurors should not disregard the evidence altogether in considering whether their doubts were reasonable. Thus the jury was urged not to “speculat[e]” or “guess at something.” In this context the reference to doubts “based on the evidence” might have been understood to mean only that the jury should account for the evidence in evaluating any doubts it might have. A doubt might be said somewhat loosely to be “based on the evidence” when in fact it was based on the insufficiency of the evidence.
To be sure, the stronger meaning is doubtless the improper one identified by defendant. The ambiguity is nonetheless relevant because it is against that background that we must take note of several relevant admonitions in the court’s instructions to the jury. Of course the jury was told that “[a] defendant in a crim[inal] action is presumed to be innocent until the contrary is proved and in case of a reasonable doubt whether his guilt is satisfactorily shown he is entitled to a verdict of not guilty.” Specifically, “[t]he burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged. If after considering the circumstances of the identification and any other evidence in this case you have a reasonable doubt whether the defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find him not guilty.” The jury was further told that circumstantial evidence could sustain a conviction only if the incriminating circumstances relied upon were irreconcilable with “any . . . rational conclusion” other than guilt, and only if each fact relied upon to find those circumstances was itself “proved beyond a reasonable doubt.” Moreover, in deciding whether to testify, defendant could “choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him.” The court further cautioned that “[n]o lack of testimony on the defendant’s part will make up for a failure of proof by the People so as to support a finding against him on any essential element.”
We conclude that, while the prosecutor’s remarks concerning reasonable doubt were misconduct, they were comparatively mild and unlikely to lead the jury into misunderstanding or misapplying the relevant law.
F. Victim’s Experience of Crime
The most troubling of defendant’s charges is that the prosecutor committed misconduct by speculating upon the victim’s subjective experience in the moments before his death. The prosecutor opened his rebuttal argument as follows: “I want to show you guys a picture Juan Trigueros, early morning hours May 19th, 2001. He can’t get that second tire fixed. He had been drinking beer probably four hours after his friend Magdaleno Servantes left him. Pretty sad and lonely situation to be in. He gets that car over [to] 7-ELEVEN to use the pay phone. He calls his girlfriend. On that phone call 15, 20 minutes. Hoping he’s going to get home. Hoping he’s going to be able to get his car fixed. What’s going through his mind at that time? Picture, if you will, the last words that Juan Trigueros heard before the defendant shot him in the back and to make sure he was dead shot him in the chest. What were the last things he heard? What’s the reasonable inference of what was going on that precise moment the second before he’s mortally wounded? Fuckin’ scrap. You fuckin’ wetback. Can you imagine the terror and the fear of Juan Trigueros must have felt as he’s cowering into the phone as Puphal told you kind of bending into the phone to try avoid this person, to not have any issue, to just try get home and lead his life. Fuckin’ scrap. Wetback. He died because he was born in Mexico and he made the mistake of wearing a number 8 jersey on Leavesley Avenue in the city of Gilroy and made the mistake of being at 7-ELEVEN the same night the defendant was partying five blocks away. What a way to exit this world.”
By reserving the argument to his rebuttal, the prosecutor deprived defense counsel of any opportunity to meet it by, most obviously, drawing the jury’s attention to its wholly speculative nature, pointing out that the victim’s experience was not material to any element of the charged offenses, and reminding the jury that in any event the imagined remarks had no tendency whatever to show that defendant, rather than some other gang member, was the murderer.
Since there was no photo of that date in evidence and the sentence as transcribed is garbled, we suspect it represents a mistranscription of the statement, “I want you guys to picture Juan Trigueros . . . .”
The prosecutor twice revisited this theme before concluding. But as defendant correctly points out, the suggestion that the killer was shouting ethnic epithets was wholly speculative. The only eyewitness to the actual shooting, Brian Puphal, was able to say only that the killer was shouting and gesticulating at the victim, who was cowering into the phone booth. Some basis for the prosecutor’s speculation could be found in the facts that defendant and some of his OSP companions possessed a demonstrated animosity toward Mexican nationals, and that to wear the number 8 in the neighborhood of the shooting would furnish a particular stimulus for any OSP member to inflict violence upon the wearer’s person. But while this chain of inferences could furnish a motive for the shooting and elements such as intent and premeditation, it was pure fiction to suppose that it also established what was actually being said at the time of the shooting.
“He’s got a motive to shoot Juan Trigueros. We talked about that in great detail. We all know about the attacks and crimes against Eighth Streeters and Mexican nationals. His motive is so great to attack these types of people he’s willing to beat up a 53 year old Mexican national. He’s willing to discharge a gun at an Eighth Street Sureno in ’97. He’s willing to boot kick a Mexican national in ’98 in the head. That’s his intent when it comes to dealing with people like Juan Trigueros and that’s his motive and that’s something you can use to decide whether he’s got the intent and motive to do these things and he does. . . . Wearing that number 8 Lakers jersey. Wrong place at the wrong time. Desperate. Fucking scrap. Wetback. Imagine again the last words you hear before you leave this Earth.”
More critically, the fiction thus spun by the prosecutor was both inflammatory and wholly extraneous to any issue properly before the jury. An argument like the prosecutor’s might have a place in the penalty phase of a death case, but in a noncapital murder case the suffering of the victim, real or imagined, is utterly irrelevant. The prosecutor could have no reason for mentioning it other than to inflame the jury’s sentiments. There was simply no occasion for the jury to contemplate the victim’s subjective experience at the time of his murder, even if there had been an evidentiary basis to do so. By deliberately drawing the jury’s attention to that irrelevant and improper consideration, the prosecutor committed serious misconduct.
The prosecutor’s final remarks also appealed to passion and prejudice in several respects: “So, please, on behalf of the People of this community look at the evidence, use your God-given common sense, and do the correct thing in this case which is to bring this man to justice. If you can’t bring Juan Trigueros back, this is the next best thing. Do the right thing, Ladies and Gentlemen. Please, I implore you. Thank you.” The reference to “God-given common sense” may be understood as an appeal both to religious authority, or more precisely religious duty, and as an invitation to decide the case on a basis other than reason and the evidence. The reference to “on behalf of the People of this community” suggests a social obligation to protect the jurors’ fellow citizens from the kind of dangerous individual defendant undoubtedly was, whether or not he committed the charged offense. Of course the reference to “bring[ing] Juan Trigueros back” was an appeal to sympathy as well as an attempt to cultivate a sense of impotence and inadequacy for which the jury was explicitly urged to compensate by convicting defendant. By “implor[ing]” the jury to return a particular verdict, the prosecutor invited it to diverge from its duty, which was to weigh the evidence dispassionately in light of the law. None of these appeals to emotion was fair or proper.
Due to counsel’s failure to object to these remarks, however, the claim of prosecutorial error, as such, is not available on appeal. (See People v. Kennedy (2005) 36 Cal.4th 595, 618 [“To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm”].) In contrast to the claims of ineffective assistance discussed above, the record does not affirmatively suggest any tactical reason for the lack of objection. It is nonetheless conceivable that counsel had such a reason. Where jury argument is concerned, it is always conceivable—if barely—that something in the tone of the challenged remarks leads counsel to believe they may backfire. This possibility may seem especially remote here, where the prosecutor appears to have presented the case with considerable competence and skill. The same may be said, however, of defense counsel. We are simply unable to say on this cold record that there could be no conceivable tactical reason for the latter’s acquiescence in the former’s improper jury arguments.
Further, “[a] defendant’s conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.” (People v. Crew (2003) 31 Cal.4th 822, 839.) The same standard governs ineffective assistance of counsel. (People v. Fairbank (1997) 16 Cal.4th 1223, 1241; see Strickland v. Washington (1984) 466 U.S. 668, 697.) We are unable to say that the failure to object was prejudicial by this standard. While the prosecution case was hampered by weaknesses in the identification evidence, we find it highly unlikely that the jury was influenced by the prosecutor’s improper argument as opposed to the other strong evidence of defendant’s guilt. First, the universe of likely perpetrators was effectively confined to OSP members by the absence of any explanation for the crime other than gang-related hatred of a type amply exhibited by at least some of them, most definitely including defendant. The involvement of defendant’s pickup in the shooting, which the defense did not seriously contest, made it extremely likely that he was either the gunman or the driver. His widely observed difficulties driving the truck raised a strong possibility that if he and another had decided to confront a perceived Sureño in the manner shown by the evidence, defendant might relinquish driving responsibility to his companion. The similarities between his face and the police sketch meant that the gunman was either defendant or another OSP member who also happened to resemble the sketch. These facts, which do not depend on the credibility of any witness who had an arguable motive to lie, pointed strongly to defendant as the actual killer.
A guilty verdict was also strongly favored by the testimony and statements of the three witnesses attacked as “the informants” by the defense. In particular, Sarah Sanchez’s testimony directly incriminated defendant by putting words in his own mouth that he had “shot up” the 7-Eleven. This testimony was subject to attack for bias, in that—as Sanchez freely admitted—defendant was one of two OSP members toward whom she “harbor[ed] the most ill will” for an incident in November 2002, in which defendant and three other OSP members invaded the apartment she shared, shoved her around, and beat up the man she would eventually marry. She acknowledged that the attack left her “pretty upset with Paul and those guys,” that she felt betrayed by them, and that it was shortly after this incident that she told police about the encounter in which defendant acknowledged involvement in the 7-Eleven shooting. But we see no realistic likelihood that insulating the jury from the prosecutor’s improper appeal to sympathy would have altered its assessment of this testimony, or the other evidence pointing to defendant’s guilt.
G. Other Instances
By our count, defendant alludes to four other instances of prosecutorial misconduct. One of them challenges the prosecutor’s argument to the jury that Nancy Echeverria’s laughter upon seeing the police sketch of the killer was a “spontaneous statement” and, as such, a peculiarly reliable sign of recognition. The prosecutor asserted, “The law recognizes spontaneous statements as being accurate and more truthful because you don’t have time to reflect on that.” This characterization may have been somewhat inapposite since genuine laughter is not really a “statement” and thus falls outside the hearsay rule, where the concept of a “spontaneous statement,” or more precisely “spontaneous declaration,” belongs. (See Evid. Code, §§ 1200, subd. (a). 1240, 225.) But the prosecutor’s point was correct in substance. The spontaneity of a qualifying declaration is thought to make it peculiarly reliable, and that is what justifies the hearsay exception. The apparent spontaneity of Echeverria’s laughter would seemingly impart to it a similar sign of reliability.
Two of the remaining three points concern supposed misstatements of fact by the prosecutor, i.e., suggesting that the shooter had “go[ne] back [to] get a gun” before killing Juan Trigueros, and mischaracterizing the relative heights of the victim and the shooter. Defendant also faults the prosecutor for “offer[ing] his own testimony about the meaning of some of the records for Mr. Zapata’s truck.” But jurors were unmistakably instructed that statements of counsel were not evidence and that they should be guided in all matters by the evidence actually admitted. We see no reason to doubt their compliance with this instruction.
VI. Failure to Instruct on Voluntary Manslaughter
A. Background
Defendant contends that the trial court erred in refusing to give an instruction informing the jury that if defendant killed Juan Trigueros in the heat of passion brought about by provocation, he could not be guilty of murder but only of voluntary manslaughter. Trial counsel requested such an instruction during the settlement of jury instructions. He cited three facts in its support: (1) Juan Trigueros had a high blood alcohol content at the time of his death; (2) he had earlier “curbed the wheels” of his car or engaged in “some kind of negligent driving” that “caused the blowout of two . . . tires”; (3) eyewitness Puphal described what he first saw, on approaching the 7-Eleven, as “two people very upset with each other.” Counsel asked, “Could there have been a road rage incident arising from an encounter on the highway, on the streets? Could there have been an encounter between intoxicated people prior to two o’clock in the morning at the 7-ELEVEN doing a last-minute beer run? There’s a world of possibilities.”
The prosecutor responded that, read in context, Puphal’s testimony provided no basis to infer that Trigueros provoked the killer; rather it depicted “this guy [Trigueros] trying to talk on the phone and ignore this guy [the killer].” Defense counsel replied, not that that the evidence actually suggested provocation, but that he had “fail[ed] . . . to pursue that issue with Mr. Puphal” because of the “Defense’s detrimental reliance on the Prosecution’s theory in this case through and including the time both parties rested . . . .” Asked by the court how he might have pursued the issue, he said that he would have asked Puphal “[W]hat do you mean” with respect to his testimony that the two people were “upset with each other.”
This was an allusion to a defense contention that by requesting instructions on aiding and abetting, the prosecutor had unfairly altered the theory of the case as depicted in his opening statement and as understood by the defense throughout the taking of evidence. This contention is not pressed on appeal. The prosecutor’s opening statement consisted of a substantially accurate summary of the evidence as ultimately adduced at trial. He concluded it by saying, “At the end of this trial you will just need to do your duty to find the defendant guilty of the shooting of Juan Trigueros on May 19th, 2001.” We do not believe this statement can be reasonably understood to exclude the possibility that defendant was guilty as an aider and abettor, i.e., as the driver rather than the triggerman. In any event the prosecutor contended that he stood by that theory, but sought aiding-and-abetting instructions to meet an anticipated defense contention that some other member of OSP had shot Trigueros, with defendant at most driving the truck. The prosecutor’s argument to the jury was consistent with this view, asserting that while the aiding-and-abetting instructions were necessary under the law, “The defendant is [the] shooter. There’s clear and convincing a hundred percent evidence that he’s the shooter.”
The court refused the requested instruction, declaring itself “not satisfied that there’s sufficient evidence to present the theory of manslaughter.” With respect to the defense claim of detrimental reliance on the prosecution’s original theory, the court observed that the question of provocation appeared equally relevant whether defendant was the triggerman or an aider and abettor: “If he was not the shooter, then the interaction between the shooter and the victim again is relevant.”
B. Discussion
Murder is a killing with “malice aforethought.” (Pen. Code, §§ 187, subd. (a), 189.) Malice of the “express” type may be found when the killer manifests a “deliberate intention unlawfully to take away the life of a fellow creature.” (Pen. Code, § 188.) Malice is said to be “implied” when “no considerable provocation appears . . . .” (Pen. Code, § 188.) A killing may constitute voluntary manslaughter, rather than murder, when it is committed in a “sudden quarrel or heat of passion.” (§ 192, subd. (a).) Despite this disjunctive language, an intentional killing can be found to constitute voluntary manslaughter only if it was actuated by both provocation and heat of passion. (People v. Steele (2002) 27 Cal.4th 1230, 1252.)
“[I]n a murder case, unless the People’s own evidence suggests that the killing may have been provoked . . ., it is the defendant’s obligation to proffer some showing on th[is] issue[] sufficient to raise a reasonable doubt of his guilt of murder. [Citations.] [¶] If the issue of provocation or imperfect self-defense is thus ‘properly presented’ in a murder case [citation], the People must prove beyond reasonable doubt that these circumstances were lacking in order to establish the murder element of malice. [Citation.]” (People v. Rios (2000) 23 Cal.4th 450, 461-462; see People v. Bloyd (1987) 43 Cal.3d 333, 349, quoting Mullaney v. Wilbur (1975) 421 U.S. 684, 704 [“The prosecution must ‘prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case’ ”].)
To constitute “ ‘heat of passion’ ” such as will mitigate a killing to manslaughter, it must be “ ‘such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances . . . .’ ” (People v. Steele, supra, 27 Cal.4th at p. 1252. quoting People v. Logan (1917) 175 Cal. 45, 49.) Obviously this element cannot be found without some evidence of what the allegedly provoking circumstances were. Here the only real suggestion that the killer was acting under the influence of emotion was Brian Puphal’s initial testimony that his attention was captured by the sight of “two people very upset at each other.” There is no evidence whatever that the victim might have done anything to make an ordinary person in the killer’s situation “upset.” The only explanation for the killer’s agitation in this record is that the victim was a Mexican national wearing the wrong number in the wrong neighborhood—circumstances that obviously cannot contribute to any claim of mitigation. Defense counsel’s speculations about a possible “road rage” incident were so far removed from the evidence that counsel was not even willing to state them declaratively, offering them instead in interrogative form.
Even if the witness’s original depiction of “two people very upset at each other” might be enough, standing alone, to raise the possibility of provocation, such that an instruction should have been given, we are satisfied that the absence of such an instruction was harmless by any standard. To the extent that passing characterization supported defendant’s argument, the witness immediately contradicted by testifying that when he first saw the “commotion,” there was one person yelling, with his arms raised, at “a gentleman talking on the phone,” who seemed not to be responding, but instead was facing into the phone booth, “trying to concentrate on whatever he was talking about.” They were lost to view for a few seconds as the witness maneuvered into the 7-Eleven parking lot, but when he saw them again, “the gentleman was still trying to—was just yelling.” The other man continued to talk on the phone as the witness came to a stop with his headlights pointed directly at them. He was “kind of hunched over” toward the phone while the agitated man continued “frantically yelling at him with his hands up.” It was then that the yelling man stepped back, pulled out a pistol, and shot the other man twice.
No reasonable juror would find on this evidence that the killer was, or might have been, acting under a legally sufficient provocation when he fired these shots.
VII. Provocation Instruction
Even where heat of passion does not mitigate a murder to manslaughter, it can negate premeditation and deliberation so as to require a finding of second-degree, rather than first-degree, murder. (People v. Johnson (1993) 6 Cal.4th 1, 42-43; People v. Wickersham (1982) 32 Cal.3d 307, 330, overruled on another point in People v. Barton (1995) 12 Cal.4th 186, 200-201; People v. Thompkins (1987) 195 Cal.App.3d 244, 251.) The trial court alluded to this concept in its instructions below, telling the jurors that to find defendant guilty of first-degree murder, it must find that the intent to kill was “formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation . . . .” (CALJIC No. 8.20; see CALCRIM No. 521 [“A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated”].) Defendant contends, however, that trial counsel was ineffective for failing to request a further pattern instruction explicitly linking this concept to provocation: “If the evidence establishes that there was provocation which played a part in inducing an unlawful killing of a human being, but the provocation was not sufficient to reduce the homicide to manslaughter, you should consider the provocation for the bearing it may have on whether the defendant killed with or without deliberation and premeditation.” (CALJIC No. 8.73; see CALCRIM No. 522 [provocation “may reduce a murder from first degree to second degree”].)
Our disposition of this argument is anticipated by our treatment of the previous point. The only hint of provocation was one witness’s passing characterization of the killer and the victim as two people upset at each other—a characterization promptly and vividly contradicted by the same witness’s further description of what he saw. For that reason, the cited instruction would have added nothing to the jury’s comprehension of the case, and its omission can have had no effect on the outcome. Again, the notion of people “upset” may suggest heat of passion, a subject placed before the jury by the instructions given. But it does not suggest provocation, a subject on which there was no evidence here, and no realistic possibility of a finding in defendant’s favor.
VIII. Cumulative Error
Defendant contends that even if we conclude that no one error was sufficiently prejudicial to justify reversal, the numerous errors he identifies had the combined effect of denying him a fair trial. We cannot accept this view. First, we have rejected most of defendant’s claims of error because they rest on the supposed ineffectiveness of counsel, a phenomenon not disclosed by this record. We are not persuaded that the remaining errors, singly or in combination, affected the outcome.
IX. No-Contact Order
In a companion battery case, which is also the subject of this appeal, the trial court directed defendant to “have no contact with the victim directly or indirectly or through third parties.” Defendant correctly contends that the trial court had no power to make such an order, and respondent concedes that it should be stricken. Accordingly, we will direct a modification of the judgment. (See People v. Stone (2004) 123 Cal.App.4th 153, 158, 159.)
X. Attorney Fees
In sentencing on the battery matter, the court directed defendant to pay $700 toward the cost of his attorney. As defendant points out, such an order is proper only after a hearing on the defendant’s ability to pay, and a finding that he can pay. (Pen. Code, § 987.8, subds. (b), (e).) Neither of these requirements was satisfied here. Defendant also contends that there is no evidence from which an ability to pay might be found. Respondent concedes the error. Accordingly, we will direct a modification to strike the order subject to conducting a hearing on defendant’s ability to pay. (See People v. Viray (2005) 134 Cal.App.4th 1186, 1217-1219, and People v. Lopez (2005) 129 Cal.App.4th 1508, 1536-1538.)
XI. Restitution Fines
The court also ordered defendant, in the battery matter, to pay a restitution fine of $1,200 under Penal Code section 1202.4, subdivision (b)). Defendant contends that this figure represents an erroneous application of the statutory formula, which suggests that the fine be calculated as “the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.” (Pen. Code, § 1202.4, subd. (b)(2).) Defendant’s essential contention is that because he was sentenced to 2-2/3 years on the battery charge, the sum of $1,200 “represented either a math error or a ‘rounding up’ of the formula amount because, using the formula set forth in the statute, $200 multiplied by two felony counts multiplied by 2 years and 8 months (2.67 years) equals $1068. Thus, the fine imposed by the trial court's calculation was $132 more than that under the statutory formula.” Acknowledging that no objection was lodged against the court’s calculation, he asserts that counsel rendered ineffective assistance in that regard, and that the court would probably have assessed a lower fine “if trial counsel had objected to the ‘rounding up . . . .’ ”
The statute clearly entrusts the fixing of the fine to the trial court’s discretion. This means, and defendant does not deny, that the court was under no obligation to reduce the fine as defendant now contends. The $1,200 figure had first been proposed in the probation report, where it was explicitly calculated “under the formula permitted by Penal Code Section 1202.4(b).” To reach this figure the probation officer had apparently rounded down, to three years, the defendant’s recommended prison term of 3-2/3 years. The trial court accepted the recommended fine even though it reduced the sentence by one year. Defendant’s argument necessarily supposes that by objecting to the rounding up, counsel would have secured a downward revision of the fine. The record provides no basis for us to adopt this supposition. The simple fact is that even if counsel had argued for a downward adjustment, the court might well have declined to order it. That fact is fatal to any claim of ineffective assistance of counsel. We therefore find it unnecessary to consider whether the statutory formula contemplates the kind of fractional values defendant assumes it does.
Disposition
The judgment in the murder case (superior court No. FF301241) is affirmed. The judgment in the battery case (No. FF201813) is reversed for the limited purposes of (1) striking the no-contact order, and (2) striking the order for attorney fees, subject to a new hearing on defendant’s ability to pay, if requested by the prosecution.
WE CONCUR: PREMO, J., ELIA, J.
“Q. . . . . [C]ompared to your original sketch do you see features that are similar between the person depicted in 31 and your original sketch?
[Zamora]. Well, I’m just looking at it in a likeness scale for me, and my thing is when I look at my sketch compared to this photograph of whoever this is I would say that there’s definitely some likeness. [¶] . . . [¶] . . . Obviously there’s some discrepancies with the goatee. There seems to be some more hair here, here than there, but there are definitely some likenesses.
“Q. The nose is right on?
“A. I would say it’s comparable.
“Q. The lips?
“A. Comparable.
“Q. Mustache?
“A. Yes.
“Q. Eyebrows?
“A. Yes.
“Q. Shape of the face generally?
“A. Yeah to me I think my guy is stocky, and the fellow here seems to be a little wide and stocky.”
“He chose the gang lifestyle. Smile now, die later. And but for this arrest in November of ’02 there isn’t any evidence that he ever would have stopped. He chose this lifestyle. Juan Trigueros didn’t choose it. Try to remember those last words. Fuckin’ scrap. Wetback. And in a few seconds he’s left this Earth at the age of 19 years old. Juan Trigueros.”