People v. Hardy ( 2021 )

Filed 6/9/21; Opinion following rehearing
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v. A158179
KAWAN HASIMRASHID HARDY, (Alameda County Super.
Defendant and Appellant. Ct. No. 18CR015233)
Defendant Kawan Hasimrashid Hardy was convicted after a jury trial
and sentenced to 19 years and 8 months in prison on five criminal counts for
firing a semi-automatic pistol in the direction of an occupied vehicle while
standing in the street on 90th Avenue in Oakland, California one evening in
September 2018. An Oakland Police Department undercover officer observed
Hardy firing a handgun of some kind, which was corroborated by a liquor
store’s surveillance video and other evidence.
Most of Hardy’s sentence was based on his conviction for assault with a
semi-automatic firearm, count 5, it having been designated the principal
term among multiple counts. The strongest, and only unambiguous, evidence
that the firearm he fired was a semi-automatic was an audio recording that
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of Discussion parts II
and III.
1
had been sent to the Oakland Police Department by a third-party service
called “Shotspotter.”
In the published part of this opinion, we conclude the trial court erred
in admitting the Shotspotter evidence without first conducting an evidentiary
hearing to assess its scientific reliability pursuant to People v. Kelly (1976)
17 Cal.3d 24, which in turn relied on Frye v. United States (D.C. Cir. 1923)
293 F. 1013 (collectively Kelly/Frye).1 We further conclude the error was
prejudicial and therefore reverse Hardy’s conviction on count 5, but authorize
the trial court to reinstate that conviction on remand after conducting a
Kelly/Frye hearing if the court concludes the Shotspotter evidence was
admissible at trial.
In the unpublished parts of this opinion, we discuss Hardy’s other
arguments for reversal of his conviction for count 5, and also for reversal of
his conviction for count 1, the willful and malicious discharge of a firearm at
an occupied vehicle. First, Hardy contends that the preliminary hearing
magistrate committed prejudicial error by improperly barring defense
counsel’s cross-examination of the undercover officer about the officer’s
location at the time he observed Hardy fire the weapon, which the magistrate
ordered under Evidence Code section 352 after the officer claimed an official
privilege under Evidence Code section 1040 to withhold the information. We
conclude that, assuming error for the sake of argument, it was harmless.
Hardy also argues the trial court committed instructional error in responding
1
In People v. Cowan (2010) 50 Cal.4th 401, our Supreme Court noted
that, while Kelly relied on Frye, it has become more appropriate to refer to
Kelly alone because the United States Supreme Court has ruled that the
Federal Rules of Evidence superseded Frye. (Cowan, at p. 469, fn. 22.) We
refer here to the “Kelly/Frye” rule because that is the designation used below
and in this appeal by the parties.
2
to a jury question during deliberations about this count. We conclude this
claim lacks merit.
After we issued our original opinion, the People filed a petition for
rehearing on multiple subjects. We initially denied the petition but modified
the disposition in our original opinion. Hardy objected to the modification,
and we then withdrew our order denying the petition and granted rehearing
for the limited purpose of considering the parties’ additional arguments
regarding the disposition issues. This opinion is substantively the same as
our original opinion except in two respects. First, upon considering the
parties’ additional arguments, we conclude our modification to the disposition
is appropriate and reinstate it at the conclusion of this opinion. Second,
because our modified disposition authorizes the trial court to reinstate the
count 5 conviction if the court concludes after conducting a Kelly/Frye hearing
that the Shotspotter evidence was admissible at trial, we also discuss the
proceedings related to, and the merits of, Hardy’s two other arguments for
reversal of his count 5 conviction, which we did not consider in our original
opinion. These arguments are essentially the same as Hardy’s arguments
regarding count 1. As we have already indicated, we conclude that neither
argument provides a basis for reversal.
BACKGROUND
In October 2018, after the Alameda County District Attorney filed an
amended criminal complaint against Hardy regarding the September 2018
shooting incident, and after a preliminary hearing, the magistrate ordered
that Hardy be held over on certain charges. Consistent with the magistrate’s
ruling, the district attorney filed an information charging Hardy with four
felony counts: discharge of a firearm at an occupied motor vehicle (Pen. Code,
3
§ 246; count 12), possession of a firearm by a felon (§ 29800, subd. (a)(1);
count 2), carrying a loaded firearm in a city (§ 25850, subd. (a); count 3), and
possession of ammunition by a prohibited person (§ 30305, subd. (a)(1);
count 4). On the first day of trial, the court allowed the prosecution, over a
defense objection, to file an amended information that added count 5, which
alleged Hardy had also committed an assault with a semi-automatic firearm
in violation of section 245, subdivision (b), with an enhancement for personal
use of a firearm under section 12022.5, subdivision (a).
At trial, evidence was presented that on the evening of September 14,
2018, members of the Oakland Police Department’s Crime Reduction Team
(CRT) engaged in undercover surveillance of the area around Booker’s Liquor
Store (store), which was located at the corner of 90th Avenue and Olive Street
in Oakland. About 20 people were gathered in the store’s parking lot, which
abutted both 90th and Olive, for the making of a music video. Undercover
officer Gregory Rosin was the “point officer” with the best view of the scene,
and Officer Joseph Coleman was the supplemental undercover officer
positioned a little further away. The surveillance operation began at about
7:30 p.m.
Officer Rosin was the prosecution’s principal trial witness against
Hardy. Rosin testified that he surveilled the scene from inside a parked car
on 90th Avenue across the street from the store, using his eyesight alone and
binoculars. His vantage point allowed him to “watch[] what was happening
in front of me and to the sides of me” and gave him “a clear and unobstructed
view of this scene.” He could see the store’s parking lot, the store building,
traffic passing him on 90th Avenue and traffic going up and down on Olive
2All further statutory references are to the Penal Code unless
otherwise stated.
4
Street up to a little past the store’s driveway. He was in radio
communication with Officer Coleman and several uniformed CRT members,
the latter being located in marked patrol vehicles a few blocks away.
During the surveillance, Officer Rosin recognized from previous
contacts Hardy and two others, DeMarcus Wilson and David Grant, in the
area of the parking lot. Hardy was wearing a black hooded sweatshirt and
distinctive black pants with white stripes running down the sides. Wilson
was wearing a red hooded sweatshirt, and Grant was wearing a white
T-shirt. At about 8:20 p.m., Rosin noticed Hardy, Grant, and Wilson separate
themselves from the larger group in and around the parking lot of the store
and walk to the corner of Olive and 90th Avenue. He had a clear and
unobstructed view of the three from about 45 to 50 feet away. They remained
at the corner for four or five minutes, walked back towards an Isuzu Rodeo
parked near the store’s entrance, and returned to the corner about two to
three minutes after that. They stood on 90th Avenue, a four-lane street (with
two lanes running in each direction) that had a stop sign just past the Olive
Street intersection. Officer Rosin watched Wilson closely because he believed
Wilson was armed based on bulges in his clothing and his movements.
A short time later, a white sedan traveling north on 90th Avenue drove
by in the “number two” lane, the lane closest to where Hardy stood. Hardy
“sprinted” into the “number two” lane looking north, crouched over, slowed
his pace, took a “handgun” out of his clothing, extended it “out towards the
white car” and began firing it “immediately after” the white car had passed
him, meaning “one to three seconds” afterwards. He went 10 to 15 feet into
90th Avenue, and also advanced north 10 to 15 feet on 90th Avenue. Officer
Rosin saw the gun’s muzzle flash and heard “six or seven” shots. The record
5
contains no evidence that anyone was hit by the shots, or that any property
damage resulted from them.
Officer Rosin could not see the firearm that Hardy used. He
acknowledged that revolvers make a muzzle flash when fired. Nonetheless,
he testified he knew Hardy fired a semi-automatic weapon because Hardy
fired “six or seven” shots and a revolver could only fire “five or six” shots, and
because Rosin saw bullet casings on the ground after Hardy left, which he
directed officers to collect. Rosin recalled that he saw the spent casings lying
in the street, and on the grassy and paved areas of the sidewalk.
The record—meaning photographs and testimony by an Oakland Police
Department evidence technician—indicates that investigating police
recovered six .380-caliber bullet shell casings on the grassy and paved areas
of the sidewalk, at the corner of 90th and Olive, but not in the street. The
street was searched and no casings were found there. Police also seized a
firearm from the Isuzu parked by the liquor store. An Oakland Police
Department laboratory report admitted into evidence refers to the spent
casings found on the sidewalk as “six fired 380 Auto caliber cartridge cases”
that “have the same class of firearm produced marks and sufficient
corresponding individual microscopic marks to conclude that they were all
fired by the same firearm.” The report further concludes, and the parties
stipulated, that these casings were not fired from the semi-automatic weapon
seized from the Isuzu.
Two Oakland police officers, Officer Coleman and Officer Patrick
Airoso, also testified, both as lay persons based on their own extensive
experience, about semi-automatic pistols and revolvers. Officer Coleman
testified that spent casings are automatically ejected from semi-automatic
pistols, in his experience always from the right side, whereas spent casings
6
must be manually removed from revolvers. Officer Airoso testified that for
right-handed semi-automatic pistols, spent casings are automatically ejected
to the right and for left-handed semi-automatic pistols, spent casings are
automatically ejected to the left.
Officer Coleman was shown the six bullet shell casings found at the
scene and asked if by looking at them he was able to tell the type of weapon
they were fired from. He said it was “hard to read,” but “you could tell based
on the size and the print on the back what size bullet they are. And so what
size the gun was chambered for. You can also tell—you’ll be able to see what
are called ejector marks. Those are when a semi-automatic pistol cycles
through, there’s actually a metal piece called an ejector that basically shoots
out the spent casing. It catches it and shoots it out. So these will have a
mark that’s indicative of that.” Also, he explained that “a semi-automatic
would eject the spent casings, which then, unless the person who fires the
weapon . . . picks them up, are going to be left on the scene. That’s one of the
biggest pieces of evidence a semi-automatic will leave behind. It doesn’t
mean the revolver won’t leave that behind. It just means the person would
have to reload the revolver and dump the casings there.” Coleman testified
that he had fired “[a] dozen, two dozen” semi-automatic pistols, and that all
of them ejected casings three to ten feet from a port on the right side of the
weapon, and that none had ejected casings from the left side.
As for the events around the shooting, Officer Rosin further testified
that, when the shooting started, Grant started walking down Olive Street
towards the main group in and around the store’s parking lot, while Wilson
ran behind Hardy, removed a handgun from his waist and pointed it in the
same direction as Hardy but did not shoot. After the shooting, Hardy and
Wilson also walked back towards the main group. Wilson joined the group,
7
but Hardy and Grant passed the group, continuing to walk down Olive
towards 92nd Avenue, and were soon out of Officer Rosin’s view.
Officer Rosin further testified that he radioed the other officers to tell
them Hardy had fired a gun at someone. Rosin described Hardy’s clothes and
said he believed Wilson was also armed. Then, he said, within 10 to 20
seconds of observing Hardy fire the shots, he received a Shotspotter phone
notification and audio recording informing him that shots were just fired at
his location. Rosin testified that the recording, which he listened to at the
scene, was “consistent” with what he observed.
As we will discuss, Shotspotter is a service used by the Oakland Police
Department that sends officers notifications and audio recordings of sounds
the service has identified as gunshots detected in certain areas of Oakland.
The prosecution played the Shotspotter audio recording for the jury during
Officer Rosin’s testimony and at the beginning of closing argument. It
consists of seven distinct percussive sounds, one right after the other, which
were purportedly recorded at the time when, and the place where, Officer
Rosin observed Hardy fire.
Surveillance footage taken from the liquor store, which was magnified
and without sound, was shown to Officer Rosin. He testified that the car in
which he was sitting that night could be seen on the video, and he pointed out
a white car. The video shows this white car parked across 90th Avenue,
directly opposite the corner of 90th Avenue and Olive. The video also shows
an individual wearing black pants with white stripes walk over to that corner
with two others and shows the three then standing there together for about
two minutes. A white sedan travelling north can be seen passing the three
individuals on 90th Avenue in the lane nearest where the three were
standing. The sedan slows to a near stop (around where Rosin testified there
8
was a stop sign) and continues on as the individual in the striped pants
hurries into the street, moving in the same direction as the sedan that has
just passed by him and into an area of the video frame where he is partially
obscured. Two flashes, one immediately after the other, appear just to his
right, about head high. As soon as he hurries into the street, one of the other
two individuals starts walking down Olive Street, followed a few moments
later by the other, who is followed a few moments later by the person wearing
the white striped pants. The three return to the area of the store parking lot,
where the larger group is gathered. One of them joins the group, while the
person wearing the white striped pants and the other individual continue
walking down Olive Street until they are out of the video’s lower right frame.
A little more than four minutes later, the person wearing the white striped
pants can be seen returning to the area of the store parking lot after
apparently walking back up Olive Street.
Officer Coleman testified that on the night of the incident he was
surveilling the area from a vehicle on Olive Street about a block away. He
could not see all the way up to the corner of 90th and Olive, but he heard
“around” six gunshots just before 8:30 p.m. He then heard Officer Rosin
report that Hardy had shot at a passing vehicle and saw Hardy, Wilson and
Grant, whom he recognized from previous contacts, walking quickly
eastbound on Olive Street. Wilson stayed near an area of the liquor store
parking lot that was on Olive some distance down from 90th Avenue (the
surveillance video shows this as well), but Hardy and Grant continued on
down Olive Street and turned onto 92nd Avenue, passing within 10 to 15 feet
of Coleman’s undercover vehicle. Coleman believed, based on Hardy’s
movements, that he had a firearm in his waistband. A few minutes later,
Coleman saw Hardy and Grant walking back toward the liquor store.
9
For safety reasons, Officer Rosin waited about 15 minutes before
calling in uniformed police officers to investigate at the scene while he
remained undercover. The officers arrested Hardy at the liquor store. He
was wearing a black hooded sweatshirt and black pants with white stripes
down the sides, and was unarmed.
The jury found Hardy guilty on all charges. The court imposed a total
sentence of 19 years and 8 months, consisting of an aggravated term of
9 years on what the court designated as the principal conviction, which was
on the count 5 charge of assault with a semi-automatic firearm, with an
aggravated 10-year enhancement for personal use of a firearm. The court
imposed and stayed a seven-year sentence on count 1, for the willful and
malicious discharge of a firearm at an occupied vehicle, and imposed and
stayed eight-month sentences on count 3 and count 4, all under section 654,
and sentenced Hardy to a consecutive 8-month term on count 2.
Hardy timely filed a notice of appeal.
DISCUSSION
Hardy argues his convictions on count 1, for discharge of a firearm at
an occupied motor vehicle, and on count 5, for assault with a semi-automatic
firearm, must be reversed for multiple reasons. We conclude his count 5
conviction must be reversed because the trial court prejudicially erred by
failing to conduct an evidentiary hearing, as requested by Hardy, to
determine the reliability of the Shotspotter evidence as proof of the number of
shots fired. This reversal is subject to the trial court’s holding a Kelly/Frye
hearing upon remand and reinstating the conviction if it concludes the
10
Shotspotter evidence was admissible at trial. We reject the remainder of
Hardy’s arguments, and affirm his conviction on count 1.
I.
Hardy’s Assault with a Semi-automatic Firearm
Conviction Must Be Reversed.
Hardy was charged in count 5 with assault with a semi-automatic
firearm. The Shotspotter evidence consists of the audio recording of seven
percussive sounds and Officer Rosin’s testimony that he received a
notification from Shotspotter shortly after observing Hardy fire “six or seven”
shots, which evidence Rosin testified was “consistent” with his observations.
The recording is the strongest, and only unambiguous, evidence that Hardy
fired more shots than can be fired from a revolver, which the evidence
indicates can only fire up to six shots. Hardy argues the trial court’s
admission of the Shotspotter evidence without conducting an evidentiary
hearing to determine whether such evidence is reliable was prejudicial error
under Kelly/Frye.
A. The Relevant Proceedings Below
1. Hardy’s Motion in Limine
Before trial, Hardy filed a motion in limine to exclude the Shotspotter
evidence. Among other things, he argued the Shotspotter evidence was
inadmissible under Kelly/Frye because the company’s “process regarding
gunshot identification and location has not been accepted by the general
scientific community,” and requested an evidentiary hearing under Evidence
Code section 402. He contended the prosecution could not meet its burden of
showing the technology’s scientific acceptance because it had not designated
any expert to testify about it. The prosecution did not file a written
opposition to the motion.
11
During a break in the prosecution’s presentation, the court held a
hearing on Hardy’s motion. After an apparently off-the-record discussion, the
court said it was inclined to admit the Shotspotter audio recording, including
because the prosecutor was “not going to claim it to be a gunshot as opposed
to backfire or anything else.” Defense counsel argued it was inadmissible
hearsay. The prosecutor responded that he would introduce it merely to
show why certain investigating Oakland police officers responded to the scene
of the shooting and that, used for this purpose, it was not testimonial in
nature and its authenticity went to its weight rather than its admissibility.
“I’m not purporting it to be shots,” he said. “I’m using this essentially, if the
Court does think that it’s hearsay, it’s essentially the effect of [sic] the
listener as to why are these officers responding to this area?” He added,
“Additionally, I think it goes to corroborate from what Officer Rosin [the
undercover officer who saw Hardy fire a handgun from a car across the
street] essentially on-views on that night,” and then referred again to the
evidence being relevant to why the officers went to the scene.
The court asked the prosecutor why someone from Shotspotter could
not testify about the audio recording. The prosecutor replied that he had just
gotten the report from Shotspotter the previous week, and that he would
introduce the evidence through Officer Airoso, who “gets a Shotspotter
notification and goes essentially to [the scene],” and not through the
“surveilling officer.”
Defense counsel responded that the Shotspotter evidence lacked
foundation, and repeated his contentions, made first in his written motion,
that an Evidence Code section 402 hearing should be held and that the
evidence, without expert testimony confirming the scientific reliability of the
underlying technology, was inadmissible under Kelly/Frye.
12
Without further explanation, the court then ruled that it would admit
the Shotspotter evidence.
2. The Prosecution’s Use of the Shotspotter Evidence
Contrary to his representation at the motion in limine hearing, the
prosecutor did not introduce the Shotspotter evidence through Officer Airoso,
although he called Airoso as his next witness.3 Instead, over Hardy’s
continuing objection on the same grounds as his motion in limine, the
prosecutor introduced the Shotspotter evidence through Officer Rosin, the
undercover officer who had surveilled the scene on the night of the incident
from a car parked on 90th Avenue across from the store.
Specifically, after Rosin testified that he saw Hardy fire “six or seven
shots” in the direction of a white sedan traveling north on 90th Avenue, the
prosecutor asked him about Shotspotter. Rosin said it was “technology that
we have in Oakland that we use that detects the sound of gunfire,” but that
the police department did not operate it. It was “designed to give us gunfire
that has just occurred,” and gave “a detailed description of where it happened
at and how many rounds were fired. It also sends us an audio clip so we can
listen to the gunshots.” He had used Shotspotter “multiple times a day”
throughout his career, receiving its notifications via an application on his
phone.
Officer Rosin further testified that he received a Shotspotter
notification on the night of the incident about “ten or 20 seconds” after he saw
Hardy fire six or seven shots. The notification provided him with the number
of shots fired, the location and time of the shooting, and an audio recording,
3 Instead, Officer Airoso testified that he was part of an arrest team
supporting the undercover operation and went to the store about 30 minutes
after Officer Coleman radioed that a third party going in and out of a silver
Isuzu appeared to have a firearm.
13
which he listened to when he received it. After listening to the recording at
trial, he said it was “consistent” with what he observed and heard that night.
After Officer Rosin testified, the defense moved for a mistrial on the
ground that admission of the Shotspotter evidence violated Hardy’s due
process rights. The court interrupted defense counsel’s argument to comment
that counsel had already been heard on the subject, and denied the motion.
Later, the court also overruled the defense objection to the admission of the
audio recording.
In closing argument, the prosecutor repeatedly referred to the
Shotspotter audio recording for the truth of what it contained. He played the
recording at the beginning of his argument and asserted it showed Hardy had
fired seven shots, then repeated this assertion a short time later. The
prosecutor also argued, apparently based on Rosin’s testimony, that Rosin
received a Shotspotter “activation” and “notification” on the night of the
incident that indicated seven shots were fired at the location. After the
defense argued there was no direct evidence that Hardy had fired a semi-
automatic weapon, including because “[w]e didn’t hear any evidence” on the
audio recording, the prosecutor contended that “[t]he Shotspotter is
circumstantial evidence that seven shots rang out at that time and location,”
and reminded the jury of the evidence that a revolver could not fire more
than six shots. During its deliberations, the jury sent a note to the court
asking to review the Shotspotter audio recording.
B. Analysis
1. The Court Erred in Admitting the Shotspotter Evidence
Without Holding a Kelly/Frye Hearing.
The trial court denied Hardy’s motion in limine without conducting an
evidentiary hearing to determine whether Shotspotter’s technology meets the
standard of scientific reliability required under Kelly/Frye, although the
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defense requested such a hearing. The court’s initial ruling is not necessarily
incorrect because at the motion in limine hearing, the prosecutor represented
that he would introduce the Shotspotter evidence not for the truth of what it
contained but through Officer Airoso simply to explain why certain police
officers responded to the scene of the incident. If the prosecutor had done as
he said he would, the only question would have been whether the police
received the notification, not what the Shotspotter evidence showed, and no
Kelly/Frye hearing would have been required.
But the prosecutor did not introduce or use the Shotspotter evidence in
the manner he had represented he would. He did not simply ask Airoso
about it to show why some of the officers went to the scene; nor did he use it
for that purpose. Instead, he introduced the Shotspotter evidence through
Officer Rosin, who was already present at the scene when the incident
occurred, and the trial court did not instruct jurors that there were any limits
on the purposes for which they could consider it. Rather, the court
summarily overruled Hardy’s continuing objections to the prosecution’s
introduction of the evidence through Rosin, made on the same grounds as
those asserted in his motion in limine, including Kelly/Frye, and denied
Hardy’s motion for a new trial and overruled his objection to the admission of
the Shotspotter audio recording without hearing any additional argument.
These rulings required, and now require, a different analysis than the court’s
initial ruling. We must determine whether, when the prosecutor introduced
the Shotspotter evidence through Officer Rosin for the purpose of proving
that Hardy fired seven shots, which could only mean that he used a semi-
automatic firearm, the court should have revisited whether Shotspotter’s
technology met the Kelly/Frye standard.
15
Under Kelly/Frye, “ ‘when faced with a novel method of [scientific]
proof,’ ” our Supreme Court requires “ ‘a preliminary showing of general
acceptance of the new technique in the relevant scientific community’ before
the scientific evidence may be admitted at trial.” (People v. Daveggio and
Michaud (2018) 4 Cal.5th 790, 831.) As our Supreme Court has also
instructed, “Because the inventions and discoveries which could be
considered ‘scientific’ have become virtually limitless in the near-70 years
since Frye was decided, application of its principle has often been determined
by reference to its narrow ‘common sense’ purpose, i.e., to protect the jury
from techniques which, though ‘new,’ novel, or ‘ “experimental,” ’ convey a
‘ “misleading aura of certainty.” ’ ” (People v. Stoll (1989) 49 Cal.3d 1136,
1155-1156.) In other words, Kelly/Frye “ ‘is intended to prevent lay jurors
from being unduly influenced by procedures which seem scientific and
infallible, but which actually are not.’ ” (Daveggio and Michaud, at p. 831.)
Kelly/Frye involves “a three-pronged test to establish the reliability of
scientific testing and its scientific basis to determine its admissibility. ‘The
first prong requires proof that the technique is generally accepted as reliable
in the relevant scientific community. [Citation.] The second prong requires
proof that the witness testifying about the technique and its application is a
properly qualified expert on the subject. [Citation.] The third prong requires
proof that the person performing the test in the particular case used correct
scientific procedures.’ ” (People v. Lucas (2014) 60 Cal.4th 153, 244 (Lucas),
disapproved in part on another ground in People v. Romero and Self (2015)
62 Cal.4th 1, 53, fn.19.) The proponent of the evidence has the burden of
satisfying each prong. (People v. Roybal (1998) 19 Cal.4th 481, 505.) There is
“no clear definition of science” under Kelly/Frye. (Lucas, at p. 223.)
“Accordingly, the application of that term is guided by resort to the ‘narrow
16
“common sense” purpose’ behind the rule: ‘to protect the jury from
techniques which . . . convey a “ ‘misleading aura of certainty.’ ” ’ . . . The
analysis is designed to address ‘scientific evidence or technology that is so
foreign to everyday experience as to be unusually difficult for laypersons to
evaluate.’ ” (Ibid.)
We must first determine whether Shotspotter’s technology was of such
novelty to the pertinent scientific community and our courts as to require
Kelly/Frye analysis. Our Supreme Court has instructed that the Kelly/Frye
standard “applies to that limited class of expert testimony which is based, in
whole or part, on a technique, process or theory which is new to science and,
even more so, the law. The courts are willing to forgo admission of such
techniques completely until reasonably certain that the pertinent scientific
community no longer views them as experimental or of dubious validity. This
all-or-nothing approach was adopted in full recognition that there would be a
‘ “considerable lag” ’ between scientific advances and their admission as
evidence in a court proceeding.” (People v. Stoll, supra, 49 Cal.3d at p. 1156.)
In addressing defendant’s Kelly/Frye argument, the trial court should
have analyzed whether Shotspotter’s technology, in whole or part, is a
technique, process or theory which is sufficiently novel to science and, even
more so, the law, so as to require Kelly/Frye review. Our review of the case
law indicates that it is. Only two reported cases in California, both in our
appellate courts, have even mentioned Shotspotter, both briefly and in 2019,
and neither addressed whether Shotspotter evidence met the Kelly/Frye
standard for reliability and therefore should have been admitted. (See People
v. Coneal (2019) 41 Cal.App.5th 951, 955 & fn. 3 [describing Shotspotter as
“an acoustic gunfire detection and location system” that “has a 25-meter
margin of error,” and stating when and at what location Shotspotter
17
identified certain numbers of gunshots fired]; People v. Rubio (2019)
43 Cal.App.5th 342, 345 [Shotspotter, described as a “system” that “detects
and triangulates the location of gunfire via microphones deployed throughout
the city,” notified officer of bursts of gunfire, causing him to respond to
location where witnesses corroborated they had heard gunfire].) Even beyond
California, we have found only one reported case in the country that has
considered whether Shotspotter’s technology was reliable enough to support
admission of Shotspotter evidence of gunshots, a 2014 state court case from
Nebraska, State v. Hill (2014) 288 Neb. 767 (Hill).
In Hill, the defendant was convicted of a murder in Omaha, Nebraska
based on evidence that included a 2012 Shotspotter report of gunfire at a
particular time and place. Before trial, the defendant moved in limine to
exclude this report, including because Shotspotter’s methodology was not
scientifically valid. (Hill, supra, 288 Neb. at pp. 770, 774.) The trial court
conducted a hearing at which it heard the expert testimony of the lead
customer support engineer at SST, Inc., described as a company that “sells a
product called the Shotspotter to cities across the country,” and the court
subsequently denied the defendant’s motion for reasons it explained in a 15-
page order. (Id. at pp. 774-778, 782.) The Nebraska Supreme Court,
analyzing the trial court’s decision under Nebraska’s “Daubert/Schafersman
jurisprudence,” a standard similar to California’s Kelly/Frye standard,4
4 Under Nebraska’s Daubert/Schafersman jurisprudence, “the trial
court acts as a gatekeeper to ensure the evidentiary relevance and reliability
of an expert’s opinion” to “ensure that the courtroom door remains closed to
‘ “junk science” ’ that might unduly influence the jury, while admitting
reliable expert testimony that will assist the trier of fact.” (Hill, supra,
288 Neb. at p. 792, and fns. 39 and 40, citing Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993) 509 U.S. 579 and Schafersman v. Agland Coop
(2001) 262 Neb. 215.)
18
concluded the trial court did not abuse its discretion in denying Hill’s motion.
(Hill, at pp. 792-794.) It summarized Shotspotter as follows:
“The ShotSpotter is an acoustic gunfire detection and location system of
GPS-enabled microphones placed in various locations of a municipal area.
SST has been in existence since 1995 and has been selling and maintaining
ShotSpotter systems since 1996. In the summer of 2011, SST installed a
ShotSpotter system in northeast Omaha. . . . [¶] [T]he ShotSpotter system in
Omaha consisted of approximately 80 sensors, spaced roughly 400 to 500
meters apart. Each sensor has four GPS-enabled microphones. The digital
signal processors of the sensors measure sound input to determine if the
sound meets 28 different audio characteristics of ‘impulsive audio pulses,’ or
a ‘bang, boom, or pop,’ and could thus be categorized as a possible gunshot.
[¶] If the sound meets the preprogrammed criteria for a possible gunshot, the
system transmits the information to a central location server, which uses
triangulation to pinpoint the latitude and longitude of the sound and uses a
process called ‘geolocation’ to place that location on a map. [¶] Incident
review staff in California then quickly look at the audio waveform and listen
to a recording of the event to discern if it is a false positive for a possible
gunshot. Once the incident review staff rule out a false positive, they send an
alert to the police dispatchers.” (Hill, supra, 288 Neb. at p. 775.)
The Shotspotter expert “testified that the incident review staff are
specially trained in recognizing the audio waveform characteristics of gunfire
and in recognizing the sound of gunfire,” and were required “to correctly
identify 80 percent of 500 audioclips during performance testing.” (Hill,
supra, 288 Neb. at p. 775.) Further, “the mathematical principles” behind
the triangulation method used to determine location were “actually very old,”
and “[t]he practical application of it” dated back to World War I. (Id. at
19
pp. 775-776.) Shotspotter used a redundancy of sensors and required only
three “to actually hear and participate in the incident.” (Id. at p. 776.)
The expert further testified that the Shotspotter system was designed
to make accurate detections if up to 20 percent of sensor capacity was lost, at
which point the company dispatched repair technicians. (Hill, supra,
288 Neb. at pp. 776-777.) Shotspotter’s “official margin of error for the
location of detected gunfire” was a 150-foot radius, but it “regularly
achieve[d] accuracy of a radius of 10 or 20 feet or better.” (Id. at p. 776.)
Shotspotter “guarantee[d] that it will give a correct location, within this
margin of error, for 80 percent of detectible outdoor gunfire in the system
area. Gunfire that is silenced or masked by other sounds is not considered
detectible.” (Ibid.)
This summary indicates that Shotspotter’s technology remains
sufficiently novel to merit our courts’ review of it under Kelly/Frye to
determine its scientific validity and reliability before admitting Shotspotter
evidence to prove the facts of a particular shooting.5 And even assuming
review of such evidence by another state’s court could be considered for that
purpose in California courts, there is no evidence that the technology used by
the Oakland Police Department or the staff review methodology it or
5 See also United States v. Rickmon (7th Cir. 2020) 952 F.3d 876, in
which the court discussed a motion to suppress evidence of a firearm seized
at a traffic stop that resulted from a Shotspotter report of shots fired at a
particular time and place. (Id. at pp. 879-880.) The district court had
“received evidence that [Shotspotter] is not always accurate and that officers
may not solely rely on it to locate gunfire.” (Id. at p. 879, fn. 2.) However, the
appellate court determined that the defendant’s argument did not require it
to “reach the reliability of Shotspotter,” although “[i]n some future decision,
we may have to determine Shotspotter’s reliability where a single alert turns
out to be the only articulable fact in the totality of the circumstances.” (Ibid.,
citing Hill, supra, 288 Neb. 767.)
20
Shotspotter employed in Oakland in September 2018 were the same as those
used in Omaha, Nebraska in 2012. For this reason, as well as the lack of any
case law before or after Hill, in California or any other court, establishing the
reliability of Shotspotter evidence, we hold that the trial court was required
to review the Shotspotter evidence under Kelly/Frye when offered to prove
the number of shots fired before admitting it. Therefore, the trial court erred
by failing to do so.
Moreover, because there was no Kelly/Frye hearing, the prosecution
failed to meet its burden of satisfying the three prongs of the Kelly/Frye
reliability test. (See Lucas, supra, 60 Cal.4th at p. 244 [outlining the three
prongs].) That is, the prosecution presented no evidence that Shotspotter’s
technology was generally accepted as reliable in the pertinent scientific
community. Officer Rosin was not offered as an expert and said nothing
indicating he was anything more than a user of the technology. And the
prosecution offered no proof that the Shotspotter data used by police in this
case was the product of scientifically reliable technologies and procedures.
The People argue the trial court properly admitted the Shotspotter
evidence for two reasons. First, Officer Rosin did not need to testify about
how Shotspotter worked because “[h]is testimony did not portray
a‘ “misleading aura of certainty” ’ ” to the jury requiring a Kelly/Frye hearing.
Second, the audio recording was admissible as a writing under Evidence Code
section 2506 because Officer Rosin testified it was “consistent” with his
6 Evidence Code section 250 states, “ ‘Writing’ means handwriting,
typewriting, printing, photostating, photographing, photocopying,
transmitting by electronic mail or facsimile, and every other means of
recording upon any tangible thing, any form of communication or
representation, including letters, words, pictures, sounds, or symbols, or
combinations thereof, and any record thereby created, regardless of the
manner in which the record has been stored.”
21
personal observations, citing People v. Dawkins (2014) 230 Cal.App.4th 991,
1003 [deputy’s testimony was sufficient to authenticate an automated
recording of a 911 call made to his department because he had general
knowledge of the automated system, and had searched for, found and
downloaded the recording from the system].) These arguments are
unpersuasive for multiple reasons, most importantly because they address
authentication, which is not at issue in this appeal, and do not contend with
whether Shotspotter’s technology was scientifically valid and properly
applied as required under Kelly/Frye.7 Therefore, the trial court erred by
admitting the Shotspotter evidence without limitation, an error that was
compounded by the prosecution’s argument that the evidence proved seven
shots were fired.
2. The Court’s Error Requires Reversal.
The court’s error was prejudicial and requires that we reverse Hardy’s
conviction on count 5, for assault with a semi-automatic weapon.
Hardy argues the trial court’s error implicates federal constitutional
rights directly affecting the ascertainment of his guilt on that count, citing
7
Further, Officer Rosin did not testify that he had any personal
knowledge regarding Shotspotter’s generation of the recording, unlike the
deputy in Dawkins. Moreover, Rosin’s testimony that the recording was
“consistent” with what he witnessed on the night of the incident did not
establish the recording’s reliability on the only significant issue—whether
Hardy fired more than six shots—because Rosin recalled only that he heard
“six or seven shots.” (Italics added.) That the recording was “consistent”
with this recollection may have been relevant to the recording’s
authentication, but it did not mean the recording was sufficiently reliable to
merit admission for the purpose of determining that Hardy discharged seven
shots and, therefore, must have fired a semi-automatic firearm and not a
revolver.
22
Chambers v. Mississippi (1973) 410 U.S. 284, 302-303.8 The People argue
against reversal under the state standard for evaluating prejudice, People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson), contending it is not reasonably
probable that, but for any error, Hardy would have received a better outcome.
We conclude the error was prejudicial under any standard, including
the Watson “reasonable probability” standard for state law error that the
People argue we should apply. A “reasonable probability” “does not mean
more likely than not, but merely a reasonable chance, more than an abstract
possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704,
715.) It “does not mean ‘more likely than not,’ but merely ‘probability
sufficient to undermine confidence in the outcome.’ ” (Ibid., favorably quoting
Strickland v. Washington (1984) 466 U.S. 668, 693-694, 697, 698.) Therefore,
reversal is necessary when it cannot be determined whether or not the error
affected the result, as in such a case there “exists . . . at least such an equal
balance of reasonable probabilities” “ ‘that it is reasonably probable that a
result more favorable to the appealing party would have been reached in the
8 Our Supreme Court, referring to federal constitutional rights to due
process, has recognized that “the admission of evidence in violation of state
law may also violate due process, but only if the error rendered the
defendant’s trial fundamentally unfair.” (People v. Merriman (2014)
60 Cal.4th 1, 70; accord, People v. Falsetta (1999) 21 Cal.4th 903, 913 [“The
admission of relevant evidence will not offend due process unless the evidence
is so prejudicial as to render the defendant’s trial fundamentally unfair”];
People v. Partida (2005) 37 Cal.4th 428, 439 [quoting Falsetta].) An appellate
court has further explained, “ ‘Only if there are no permissible inferences the
jury may draw from the evidence can its admission violate due process. Even
then, the evidence must “be of such quality as necessarily prevents a fair
trial.” [Citation.] Only under such circumstances can it be inferred that the
jury must have used the evidence for an improper purpose.’ (Jammal v. Van
de Kamp (9th Cir. 1991) 926 F.2d 918, 920.)” (People v. Hunt (2011)
196 Cal.App.4th 811, 817.)
23
absence of the error.’ ” (Watson, supra, 46 Cal.2d at pp. 837.) Such is the
case here.
The Shotspotter evidence was the only unambiguous evidence that
Hardy had fired seven shots and, therefore, must have used a semi-automatic
firearm rather than a revolver, which could only fire up to six shots.
Otherwise, the People presented a murky case for which there is at least an
equal chance that a reasonable juror would or would not find Hardy culpable
for assault with a semi-automatic firearm. No firearm associated with the
bullet casings found at the scene was ever recovered; the main percipient
witness to the shooting, Officer Rosin, testified only that Hardy had fired “six
or seven shots” (italics added) from a weapon the officer did not see; the other
percipient witness, Officer Coleman, testified that he heard “about six” shots
(italics added); the surveillance video that captured Hardy as he fired did not
show the weapon he used, had no audio, and revealed only two muzzle
flashes; and only six bullet casings were found in the vicinity of where Rosin
testified he saw Hardy fire.
The best indication that Hardy fired a semi-automatic firearm, other
than the Shotspotter evidence, was the testimony of Officers Coleman and
Airoso, based on their own experiences, that a semi-automatic firearm
automatically ejects bullet casings as it is fired, coupled with the evidence
that casings were recovered on the grassy and paved areas of the sidewalk.
But this evidence was far from conclusive. First, only six casings were found.
Second, Officer Coleman acknowledged that such bullet casings could be
manually emptied out of a revolver. Third, the surveillance video shows that
a few moments passed between the time Hardy appeared to fire something
and the time he began walking down Olive behind his two associates.
Fourth, Officer Rosin was not asked about and did not testify as to whether
24
he had observed Hardy’s actions during that time or saw bullet casings being
ejected from the firearm.9
The part of Officer Rosin’s testimony that is relevant to whether Hardy
fired a semi-automatic or a revolver also raised as many questions as it
provided answers. Officer Rosin acknowledged that he did not see the type of
firearm Hardy used. He could only recall that he heard “six or seven” shots
and, similarly, that a revolver could fire “five or six” shots. And he
remembered seeing spent casings lying in the street on 90th Avenue, but
according to the police evidence technician, none were found there.
The ambiguity resulting from the other evidence explains why the
prosecutor placed the Shotspotter evidence front and center in his closing
argument, playing the audio recording to the jury at the outset and referring
to the seven percussive sounds that could be heard on it repeatedly in his
argument. The Shotspotter evidence, particularly the audio recording, was
almost certainly decisive, and what verdict the jury would have reached on
count 5 without it is entirely unclear. This lack of clarity undermines our
confidence in the verdict on count 5 and requires us to reverse under any
prejudice standard. As we discuss further in the disposition part of this
opinion, this conviction is subject to reinstatement by the trial court upon
remand if, after conducting a Kelly/Frye hearing, the court concludes the
Shotspotter evidence was admissible at trial.
9 Officer Coleman also testified that shell casings ejected from a semi-
automatic pistol have ejector marks on them, but neither party contends his
testimony, unaccompanied by any evidence that such marks appeared on the
casings admitted into evidence, demonstrates that Hardy used a semi-
automatic pistol.
25
II.
Any Error by the Preliminary Hearing Magistrate Regarding Hardy’s
Cross-Examination of Officer Rosin Was Harmless.
Hardy also argues we must reverse his convictions for count 5, assault
with a semi-automatic firearm, and count 1, willful and malicious discharge
of a firearm at an occupied motor vehicle in violation of section 246, based on
events that occurred at the preliminary hearing. Specifically, Hardy
contends on multiple grounds that the preliminary hearing magistrate should
not have ordered him held to answer on count 1 and that he should not have
been tried on count 5 (which was added via an amended information on the
first day of trial) because, upon Officer Rosin’s claim of an official privilege to
withhold information about his location under Evidence Code section 1040,
the magistrate erroneously barred defense counsel from cross-examining
Rosin at all regarding his location and ability to perceive Hardy on the night
of the incident. Hardy makes a number of sometimes confusing arguments
about why the magistrate erred in preventing such cross-examination,
including that the magistrate abused his discretion under Evidence Code
section 352 and did not properly consider Rosin’s claim of official privilege
under Evidence Code section 1040. We see no need to sort through Hardy’s
mélange of arguments10 because we conclude that, assuming for the sake of
argument that the magistrate erred, any error was harmless.
A. The Relevant Proceedings Below
Prior to the preliminary hearing, the People’s complaint, as amended,
included a count 1 that alleged Hardy had discharged a firearm with gross
10 Hardy also refers to his rights to effective assistance of counsel, to
present exculpatory evidence, to due process, and to a ruling adverse to the
prosecution if a court sustains a claim of official privilege regarding
“material” information within the meaning of Evidence Code section 1042.
26
negligence in violation of section 246.3. At the preliminary hearing, the
People presented only one witness, Officer Rosin. He testified on direct that
he saw Hardy fire a “handgun” “6 or 7” times in the direction of a vehicle that
had just passed by Hardy, which was consistent with Rosin’s later trial
testimony. Rosin said he was “between 20 and 30 feet” away and had a clear
and unobstructed view of Hardy (rather than the approximately 45 to 50 feet
he later indicated at trial).
On cross-examination, Officer Rosin was asked to mark on a map his
location on the night of the incident. He responded, “I would have to invoke
[section] 1040 of the Evidence Code at this time” because “getting that
specific into where I was is going to enter [sic] additional investigations.”11
Hardy’s counsel responded that he was just trying to understand “whether
you were in front of him, behind him, above him, to the left or to the right,”
but Officer Rosin declined to answer based on the section 1040 privilege. The
magistrate asked Rosin, “Did you have a clear and unobstructed view?” and
Rosin indicated that he did. Defense counsel and the magistrate then had
the following exchange:
“[DEFENSE COUNSEL]: Your Honor, it’s important to me to
understood [sic] and Mr. Hardy to understand, where [Officer Rosin] was in
relationship to viewing [Hardy] as to how he was able to identify Mr. Hardy
or distinguishing factors, his proximity to the location.
11 Evidence Code section 1040, subdivision (b)(2) provides in relevant
part that a public entity is privileged to “refuse to disclose official
information, and to prevent another from disclosing official information, if . . .
[d]isclosure of the information is against the public interest because there is a
necessity for preserving the confidentiality of the information that outweighs
the necessity for disclosure in the interest of justice . . . .”
27
“[THE MAGISTRATE]: Well, he’s stated how many approximately feet
he was away, and he has also stated that he had a clear and [un]obstructed
view. So for purposes of a preliminary hearing, I’ll find that further
examination in this area is irrelevant under 352 of the Evidence Code.
“[DEFENSE COUNSEL]: Just so I’m clear, Your Honor, under 352, his
location and ability to perceive Mr. Hardy is no longer going to be the subject
of cross-examination?
“[THE MAGISTRATE]: That’s right, because I’m ruling that it’s
essentially—that the relevance is substantially outweighed for purposes of a
preliminary hearing by its—that it gets into collateral matters which
consumes an undue amount of time.”12
At the hearing’s end, the magistrate, at the prosecution’s request,
ordered that Hardy be held over for a new charge—the willful and malicious
discharge of a firearm at an occupied motor vehicle in violation of
section 24613—rather than for the grossly negligent discharge of a firearm
alleged in count 1 of the complaint. The prosecution then filed an
information as authorized by the court.
Hardy filed a motion in the trial court under section 995 to dismiss this
information on the grounds that he was denied his state and federal
constitutional rights to effectively cross-examine Officer Rosin about his
12 Defense counsel also asked Rosin whether a surveillance video that
Rosin had mentioned viewing on the night of the incident had been given to
the prosecution. Upon prosecution objection, counsel indicated the defense
had not received the video in response to its discovery requests, making
cross-examination on the video difficult. The court told counsel to move on
because the hearing was “not to be for purposes of discovery.”
13 Section 246 provides in relevant part, “Any person who shall
maliciously and willfully discharge a firearm at an . . . occupied motor
vehicle . . . is guilty of a felony . . . .”
28
location at the scene, and the People opposed the motion. At the hearing,
after the prosecutor brought up the abuse of discretion standard under
Evidence Code section 352, defense counsel argued that the magistrate had
made an arbitrary and capricious limitation on his cross-examination that
was “absurd.” The court denied the motion, concluding the magistrate did
not make an “absurd” ruling and that, in light of the corroborating evidence
(such as the spent cartridges and the gun found in the Isuzu, which at the
time of the preliminary hearing had not yet been eliminated as the gun fired
by Hardy), Hardy failed to show prejudice from any error.
Prior to trial, Hardy moved in limine for an order that Officer Rosin’s
location at the scene be produced immediately, or at least by the close of the
prosecution’s case-in-chief. Also, Hardy, anticipating the prosecution would
claim the official privilege under Evidence Code section 1040 to withhold this
information, asked the court to rule on the applicability of that privilege prior
to trial and, if it sustained the privilege, dismiss the case under Evidence
Code section 1042, subdivision (a).14
Also prior to trial, the prosecution filed a brief asserting it would
withhold Officer Rosin’s location under Evidence Code 1040. It insisted that
Hardy had “ample areas ripe for cross-examination” of Rosin’s observations
and that Rosin’s location was not material, particularly in light of the
“numerous other corroborating items of evidence” that supported his
observations.
14 Evidence Code section 1042, subdivision (a) provides that, if the
privilege is sustained, the court “shall make such order or finding of fact
adverse to the public entity bringing the proceeding as is required by law
upon any issue in the proceeding to which the privileged information is
material.”
29
The trial court ruled on Hardy’s other motions in limine in one hearing,
but passed over the motion regarding Rosin’s location, apparently in
anticipation of a separate argument on the Evidence Code section 1040 issue.
However, the record contains no further mention of either that issue or the
defense’s related request for discovery on Rosin’s location.
Also, on the eve of trial the prosecution filed a request to amend the
information to add count 5, assault with a semi-automatic firearm. The
prosecution stated that the new charge was “proved at the preliminary
hearing,” and that the amended information “accurately reflects the evidence
presented at the preliminary hearing.” At the hearing on this request, Hardy
objected to the amendment. His counsel contended the addition of count 5
more than doubled Hardy’s potential exposure, argued that it amounted to
vindictive prosecution in retaliation for Hardy exercising his right to go to
trial, and expressed doubts that it was adequately supported by the evidence
presented at the preliminary hearing.
The prosecutor argued that evidence presented at the preliminary
hearing supported the new count 5 charge, quoting from Officer Rosin’s
testimony at the hearing. As we have already indicated, Rosin testified at
the preliminary hearing that on the night of the incident from a distance of
20 or 30 feet away, he saw Hardy fire a “handgun” “6 or 7” times in the
direction of a vehicle that had just passed by Hardy. Rosin further testified
that he had been told that .380-caliber casings were recovered in the
roadway. At the hearing on his proposed amendment of the information, the
prosecutor contended the casings were evidence of bullets fired by Hardy
from a semi-automatic firearm, the casings having been found in the vicinity
of where Rosin saw Hardy fire. After hearing this argument, the trial court
30
allowed the prosecution to amend the information. The court then proceeded
with jury selection.
Later that same day, Hardy’s counsel again brought up his objection to
the amended information as follows: “I wanted to put on the record an issue
on the amended complaint. As I mentioned in chambers and forgot to put on
the record, I had requested an opportunity to file a [section] 995 [motion] on
the amended complaint given our belief that . . . there was not evidence in the
preliminary hearing transcript to support the amendment.” The trial court
replied that it considered Hardy’s objection to the amended information as a
section 995 motion and “implicitly denied it.” The court added, “But I know
you want to do that. I know you mentioned that ahead of time. I took it as a
995, your objection to the amendment. I ruled against it.”
The next morning, Hardy filed a written motion to set aside the
amended information under section 995 and on due process grounds.15 Hardy
contended that there was no evidence presented at the preliminary hearing
concerning his use of a semi-automatic weapon and that the preliminary
hearing magistrate had prejudicially violated his due process rights by
barring his counsel from cross-examining Officer Rosin. The record does not
contain argument or a ruling on this written motion, possibly because of the
court’s denial of Hardy’s oral motion under section 995 the day before.
Jury selection was completed that same day and the trial began that
afternoon. Evidence was presented until the following afternoon, when
closing arguments began. The jury began its deliberations the following day.
At trial, Rosin simply revealed his location on direct examination. The
prosecutor, examining Rosin about his surveillance on the night of the
15That same morning, Hardy also filed a motion dismiss the
information for vindictive prosecution, an issue that he does not raise on
appeal and which, therefore, we will not further discuss.
31
incident, asked him, “So were you on the street, were you in a building, where
were you?” The defense did not object to this question, to any of the related
questions that followed, or to any of Rosin’s responses, and did not seek a
continuance of the trial.
As we have already indicated, Rosin testified that he surveilled the
scene using his eyesight alone and binoculars from a parked car on 90th
Avenue across the street from the store. His vantage point allowed him to
“watch[] what was happening in front of me and to the sides of me” and gave
him “a clear and unobstructed view of this scene.” He pointed out the car
parked on 90th Avenue in which he surveilled the scene on the store’s
surveillance video. In the video, this location is directly across the street
from the corner where three individuals stand for a time and one of them,
wearing white striped dark pants, hurries into the street and seems to fire
something after a white car passes him.
Rosin further testified that he saw Hardy, wearing distinctive white
striped black pants, stand with Grant and Wilson for a couple of minutes on
the corner and then hurry into 90th Avenue where he fired a “handgun” six
or seven times in the direction of a white sedan that had just passed by him.
Officer Coleman recalled hearing Rosin on the radio immediately after
Coleman heard gunshots saying that he had just seen Hardy shoot at a
passing vehicle.
For the most part, Officer Rosin’s account was corroborated by the
surveillance video, Officer Coleman’s testimony that he saw Hardy walking
with another person down Olive Street from 90th Avenue right after he heard
about six shots being fired, and the spent cartridges found in the area where
Rosin said Hardy and two others had stood.
32
On cross-examination, defense counsel asked Rosin again about his
testimony on direct that he was about “45 to 50” feet away from Hardy when
he observed him. Counsel also asked if Rosin was aware that the actual
width of 90th Avenue was 90 feet, and Rosin said he was not. Rosin also said
during cross-examination that the street was lit and the rear windows of the
car he was sitting in were tinted.
B. Analysis
Essentially, Hardy’s appellate claim is a challenge to the trial court’s
denial of his two section 995 motions. He filed the first motion to dismiss the
information the prosecution filed after the conclusion of the preliminary
hearing, and he filed the second motion after the prosecution filed its
amended information on the eve of trial to add count 5. He largely based
both motions on his contention that the magistrate erred in barring his
counsel’s cross-examination of Officer Rosin, preventing him from showing
there was a lack of evidence to support the charges he challenges on appeal,
contained in counts 1 and 5. Our analysis is the same regarding Hardy’s
challenge to the court’s denial of both motions: assuming for the sake of
argument that the magistrate erred, it was harmless.
In reviewing the trial court’s denial of section 995 motions, “we ‘in
effect disregard[] the ruling of the superior court and directly review[] the
determination of the magistrate holding the defendant to answer.’ ” (Lexin v.
Superior Court (2010) 47 Cal.4th 1050, 1071-1072.) We review section 995
claims of legal error de novo. (See Lexin, at p. 1072 [statutory interpretation
issues raised in a section 995 motion are reviewed de novo].) “Insofar as it
rests on consideration of the evidence adduced, we must draw all reasonable
inferences in favor of the information [citations] and decide whether there is
probable cause to hold the defendants to answer, i.e., whether the evidence is
33
such that ‘a reasonable person could harbor a strong suspicion of the
defendant’s guilt.’ ” (Lexin, at p. 1072.)
At the preliminary hearing, the magistrate based his order barring any
cross-examination of Officer Rosin regarding his location and ability to
perceive Hardy on its discretion to limit the introduction of evidence about
unduly time-consuming “collateral” matters under Evidence Code
section 352. The magistrate ordered this prohibition upon Officer Rosin’s
claim of the official privilege and indication to the court that he had an
unobstructed view of events on the night of the incident.
Hardy correctly argues that defendants have the right under
section 865 to cross-examine witnesses at a preliminary hearing.16 A court
generally has the discretion to limit a defendant’s cross-examination of a
witness when appropriate under Evidence Code section 352. (See People v.
Jennings (1991) 53 Cal.3d 334, 372 [holding that impeachment evidence “on
collateral matters” that was “only slightly probative” of witness veracity could
be excluded from trial under Evidence Code section 352 without infringing
the defendant’s constitutional confrontation rights]; People v. Snow (2003)
30 Cal.4th 43, 90 [“Application of the ordinary rules of evidence, such as
Evidence Code section 352, generally does not deprive the defendant of the
opportunity to present a defense”].) Evidence Code section 352 provides, “The
court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a)
necessitate undue consumption of time or (b) create substantial danger of
undue prejudice, of confusing the issues, or of misleading the jury.”
16 Section 865 provides that at a preliminary hearing, “witnesses must
be examined in the presence of the defendant, and may be cross-examined in
his behalf.” Hardy does not assert the violation of any Sixth Amendment
right to confront witnesses at a preliminary hearing.
34
However, there is a difference between limiting cross-examination on a
significant issue and denying it altogether. We have concerns about the
magistrate’s actions here, even considering the relatively low bar required for
the prosecution to prove probable cause,17 because, after the magistrate
asked Rosin whether he had a clear and unobstructed view, he prohibited
further cross-examination on a highly probative subject that had already
been raised on direct. Nonetheless, we will not further discuss these concerns
because we conclude that any error was harmless.
We determine whether the magistrate’s error was prejudicial to Hardy
by evaluating the error’s impact on Hardy’s subsequent trial. As Hardy
acknowledges, “irregularities in the preliminary examination procedures
which are not jurisdictional in the fundamental sense shall be reviewed
under the appropriate standard of prejudicial error and shall require reversal
only if defendant can show that he was deprived of a fair trial or otherwise
suffered prejudice as a result of the error at the preliminary examination.”
(People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.)18
17 “A magistrate will make an order holding a defendant to answer a
felony charge if there is “sufficient cause” to believe the defendant is guilty.
(Pen. Code, § 872.) ‘Sufficient cause’ or ‘probable cause’ means a state of facts
that would lead a person of ordinary caution or prudence to believe and
conscientiously entertain a strong suspicion of the guilt of the accused.
[Citation.] The burden that this standard places on the prosecution at the
preliminary hearing is ‘quite distinct from that necessary to obtain a
conviction before a judge or jury.’ [Citation.] To satisfy the standard of
sufficient or probable cause, the evidence ‘need not be sufficient to support a
conviction.’ ” (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1041,
italics omitted.)
18 Our Supreme Court has instructed that “jurisdiction in the
fundamental sense” refers to the “legal power to hear and determine a cause.”
(People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) The court, referring to
jurisdiction in the broader sense, further instructed that “[t]he presence of a
35
We evaluate whether an abuse of discretion under Evidence Code
section 352 and an error regarding a claim of official privilege under Evidence
Code section 1040 were prejudicial to a defendant by applying the state
standard established in Watson, supra, 46 Cal.2d 818. That is, we determine
whether there was a reasonable probability that Hardy would have achieved
a more favorable result on count 1 in the absence of the error. (See Watson,
at p. 836; see also People v. Alcala (1992) 4 Cal.4th 742, 790-791 [applying
Watson standard to a section 352 error]; People v. Roberts (1992) 2 Cal.4th
271, 302 [applying Watson standard to a section 1040 error].) Under this or
any standard,19 we conclude the magistrate’s error was harmless.
As we have already recounted, at the trial, neither Officer Rosin nor
the prosecution claimed the official privilege under Evidence Code
section 1040 to withhold any information. Instead, without any objection by
the defense, Rosin testified about his location on direct and on cross-
examination. The defense asked few questions about his location or his
ability to perceive Hardy on the night of the incident. This was
understandable in light of the store’s surveillance video making clear that
Rosin had an unobstructed view of Hardy from directly across the street in an
area that was lit by street lights.
jurisdictional defect which would entitle a defendant to a writ of prohibition
prior to trial does not necessarily deprive a trial court of the legal power to
try the case if prohibition is not sought.” (Ibid.) Hardy does not contend the
magistrate made any error that was jurisdictional in the fundamental sense.
19Hardy does not identify what standard of error applies here, and his
somewhat vague assertion that the magistrate violated his due process rights
suggests an error of federal constitutional dimension. Even if the court erred
in some way that affected his federal constitutional rights, we would reach
this same conclusion under the federal harmless error standard. (See
Chapman v. California (1967) 386 U.S. 18, 24.)
36
Further, Officer Rosin’s testimony about Hardy’s actions was well-
corroborated by the surveillance video, in which an individual dressed in the
distinctive pants Hardy was wearing that night can be seen hurrying into the
street and apparently firing something just after a white sedan passed by
him, as Officer Rosin described. Officer Rosin’s testimony about Hardy’s
actions was also corroborated by his testimony that he immediately radioed
other officers that Hardy had just fired a gun; the testimony of Officer
Coleman, who was surveilling from a car on Olive Street, that he heard about
six shots, heard Rosin’s radio broadcast that Hardy fired at someone, and
then saw Hardy and Grant walking down Olive Street; and the evidence of
the spent cartridges found in the area where Rosin said Hardy had fired a
gun.
Hardy does not deny the impact of this evidence. Instead, he asserts
(in an argument that focuses more on the unfairness of adding count 5 on the
eve of trial rather than the unfairness of his trial on count 1) that, although
Rosin revealed his location at trial on direct examination and Hardy’s counsel
had the opportunity to cross-examine him on the subject, Hardy was
prejudiced because the prosecution’s failure to provide him with pre-trial
discovery on Rosin’s location violated his due process right not to be taken by
surprise by the evidence offered against him at trial.
This argument is unpersuasive for several reasons. First, Hardy does
not establish that the prosecution violated any discovery obligations or,
relatedly, that the prosecution acted improperly by claiming an official
privilege and then withdrawing the claim at trial. Second, Hardy’s motion in
limine seeking discovery sought information of Rosin’s location by the end of
the prosecution’s presentation of its case-in-chief, which Hardy in effect
obtained via Officer Rosin’s testimony on direct. Third, Hardy did have
37
information about Rosin’s location because Rosin testified at the preliminary
hearing that he was 20 to 30 feet away in an unobstructed location when he
observed Hardy. It should have been apparent from this testimony that
Rosin might have been sitting in a car, and thus the defense had notice to
prepare for that possibility. Fourth, Hardy’s failure to object to Rosin’s
testimony on direct or seek a continuance of the trial suggests he saw no
prejudice from the prosecution’s late disclosure, a conclusion amply supported
by Rosin’s identification in the surveillance video of the car in which he was
hidden, which made plain that he was well-situated to view Hardy’s actions.
In short, any magistrate error was harmless under any prejudice
standard and, therefore, is not a basis for reversal of Hardy’s count 1 or count
5 convictions.20
20 Hardy also refers to, but does not present separate legal argument
regarding, the trial court’s decision to permit amendment of the information
to add count 5. He contends there was a lack of evidence presented at the
preliminary hearing to support this count, a contention he links to his claim
that the magistrate erred in barring cross-examination of Officer Rosin. To
the extent he may intend to raise a separate challenge to the decision
permitting amendment of the information on the eve of trial, it is
unpersuasive. “[O]ur Supreme Court has interpreted sections 739 and 1009
to ‘ “permit amendment of the information to add charges or enhancements
which are supported by the actual evidence at the preliminary hearing,
provided the facts show due notice by proof to the accused.” [Citations.]’ ”
(People v. McCoy (2013) 215 Cal.App.4th 1510, 1531.) We review a trial court
ruling that allows the amendment of an information for abuse of discretion.
(People v. Miralrio (2008) 167 Cal.App.4th 448, 458.) At the preliminary
hearing, Officer Rosin indicated .380-caliber casings were found in an area of
the roadway where Hardy fired a handgun six or seven times in the direction
of a passing car. As the prosecution contended at trial, these casings could
have been ejected from a semi-automatic firearm. As we have discussed, it is
unclear what verdict the jury would have reached on the issue if it had been
required to rely on this evidence, without reliance also on the Shotspotter
evidence, at trial. Nevertheless, prior to trial the court was within its
38
III.
The Trial Court Did Not Err in Its Response to
a Jury Question Regarding Count 1.
Finally, Hardy argues that we must reverse his convictions on count 1
and count 5 because the trial court erred in responding to a jury question
regarding count 1 and thereby lowered the prosecution’s burden of proof on
that count. We disagree that the court erred.
A. The Relevant Proceedings Below
The trial court, following CALCRIM No. 965, instructed the jury on
count 1 that the prosecution was required to prove, among other things, that
“1. The defendant willfully and maliciously shot a firearm” and “2. The
defendant shot the firearm at an occupied motor vehicle.” During
deliberations, the jury asked the court, “Please clarify instructions for Count
One, [¶] ‘2. The defendant shot the firearm at an occupied motor vehicle[.]’
[¶] “If the defendant intentionally fired just above or to the side of the vehicle
is that at the vehicle[]?”
The trial court discussed how to answer this question with counsel.
Defense counsel argued for a narrow response based on the instructions
already given, while the prosecutor argued for an additional instruction
based on case law. Ultimately, the court decided to instruct the jury based on
an appellate case, People v. White (2014) 230 Cal.App.4th 305, 316. Over
Hardy’s objection, the court orally gave the jurors the following answer:
“ ‘The offense of shooting an occupied vehicle is not limited to actually
shooting at an occupied vehicle, but rather the act of shooting at a proscribed
discretion to permit the amendment to add count 5 based on the probable
cause standard of proof that applies in such circumstances. (See Griffith v.
Superior Court (2011) 196 Cal.App.4th 943, 954 [“no crime . . . can be
included in an information unless it has been supported by a showing of
probable cause at the preliminary hearing”].)
39
target is also committed when the defendant shoots in such close proximity to
the target that he shows a conscious indifference to the probable consequence
that one or more propose to strike the target for the persons in or around
it.’ ”21
In giving the jury this answer, the court said, “I am not making this up.
What I am doing is, I am talking the law. There is a Court of Appeal case
and I am taking the sentence, the holding directly from that case so the
sentence I am reading is directly from an appellate case, which is the law
that I am bound by.”
B. Analysis
When the jury asks a question during deliberations, the trial court has
a duty under section 1138 “ ‘to provide the jury with information the jury
desires on points of law.’ ” (People v. Eid (2010) 187 Cal.App.4th 859, 881-
882.)22 “Where the original instructions are themselves full and complete,
the court has discretion under section 1138 to determine what additional
explanations are sufficient to satisfy the jury’s request for information. . . .
But a court must do more than figuratively throw up its hands and tell the
jury it cannot help. . . . It should decide as to each jury question whether
further explanation is desirable, or whether it should merely reiterate the
instructions already given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
We review a trial court’s decision whether to provide supplemental
instructions in response to a question for abuse of discretion. (People v.
The court gave the jury an almost identical written answer as well,
21
which even more closely tracked the language in People v. White.
Section 1138 states, “After the jury have retired for deliberation, . . .
22
if they desire to be informed on any point of law arising in the case, they
must require the officer to conduct them into court” where “the information
required must be given in the presence of, or after notice to, the prosecuting
attorney, and the defendant or his counsel, or after they have been called.”
40
Franklin (2018) 21 Cal.App.5th 881, 887, fn. 4.) We review the legal
correctness of any such instruction review de novo. (Ibid.)
Hardy first argues that the trial court’s answer to the jury’s question
regarding count 1 was legally erroneous because it “failed to inform the jury
that they were required to make certain findings of fact, e.g., the necessary
proximity [of the target] and appellant’s awareness of it, before they could
make an inference of conscious disregard.” He further argues that this error
affected the jury’s evaluation of count 5, assault with a semi-automatic
firearm, because that crime, like count 1’s discharge of a firearm at an
occupied vehicle, requires a target (in the case of count 5, a person).
This argument is unpersuasive for two reasons. First, the trial court
made a correct statement of the law. “ ‘[S]ection 246 is not limited to the act
of shooting directly “at” an inhabited or occupied target. Rather the act of
shooting “at” a proscribed target is also committed when the defendant shoots
in such close proximity to the target that he shows a conscious indifference to
the probable consequence that one or more bullets will strike the target or
persons in or around it.’ ” (People v. White, supra, 230 Cal.App.4th at p. 316,
quoting People v. Overman (2005) 126 Cal.App.4th 1344, 1356.)
Second, Hardy’s argument ignores the jury’s question, “If the defendant
intentionally fired just above or to the side of the vehicle is that at the
vehicle[]?” The question necessarily assumed the requirements of intent and
proximity have been met and does not inquire about them. Therefore, the
court had no need to instruct the jury regarding them.
Also, Hardy, noting that our Supreme Court has cautioned about “the
danger of assuming that a correct statement of substantive law will provide a
sound basis for charging the jury” (People v. Colantuono (1994) 7 Cal.4th 206,
221, fn. 13), argues the court’s statement to the jury that its supplemental
41
instruction was from an appellate case that stated “the law that I am bound
by” somehow gave the jury “the impression that this new instruction took
precedence over the one previously given and, erroneously conveyed that the
jury’s question was not relevant to their decision.” We see nothing in the
court’s statements to the jury or in the record to support this argument. The
court’s supplemental instruction was a correct statement of law that did not
conflict with the court’s previous instruction. Further, the jury’s instructions
included that it “[p]ay careful attention to all these instructions and consider
them together,” and not conclude that any instruction was more important
than any of the others if the court repeated it.
In short, Hardy’s instructional error claim lacks merit.23
DISPOSITION
Hardy’s conviction on count 5, for assault with a semi-automatic
firearm in violation of section 245, subdivision (b), is reversed. The judgment
is otherwise affirmed. The matter is remanded to the trial court for further
proceedings consistent with this opinion. Following People v. Leahy (1994)
8 Cal.4th 587, we direct the trial court to conduct a Kelly/Frye hearing
regarding count 5 in accordance with our opinion. If, at the conclusion of the
hearing, the trial court concludes there is sufficient basis to properly admit
the Shotspotter evidence previously presented, the court should reinstate the
judgment. If the trial court determines the evidence is insufficient to
properly admit the Shotspotter evidence presented, then the court may order
a new trial, if the People so elect. If the judgment is reinstated, or a new trial
ordered, appellate review will be available to the parties regarding the trial
court’s ruling, limited to any new issues not previously resolved in this
23 Given our conclusion, we have no need to discuss Hardy’s contention
that the court’s purported error was prejudicial.
42
opinion. (See Leahy, at pp. 612-613.) Also, should the trial court rule there is
insufficient evidence to properly admit the Shotspotter evidence presented,
nothing in this opinion is intended to preclude the People from pursuing
entry of a judgment of conviction on count 5 for a lesser included offense,
including on the accompanying enhancement, instead of retrying that count,
under People v. Kelly (1992) 1 Cal.4th 495, 528, if supported by law and the
record in this case.
43
STEWART, J.
We concur.
RICHMAN, Acting P.J.
MILLER, J.
People v. Hardy (A158179)
44
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Thomas C. Rogers
Counsel:
Audrey R. Chavez, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Matthew Rodriguez, Acting Attorney General, Lance
E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney
General, Seth K. Schalit and Bridget Billeter, Deputy Attorneys General, for Plaintiff and
Respondent.
45