People v. Palmer CA2/2 ( 2021 )

Filed 9/3/21 P. v. Palmer CA2/2
Opinion following rehearing
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B302342
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA356413)
v.
KELSIE J. PALMER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
Waldemar D. Halka, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Michael C. Keller,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Kelsie James Palmer (defendant)
appeals from his convictions of murder, attempted murder, and
making a criminal threat. He advances a number of assignments
of error: actions and rulings related to his two accomplices and
their invocation of the Fifth Amendment right not to testify; a
refusal to give a limiting instruction not to draw any inferences
from the accomplices’ refusal to testify; denial of due process;
exclusion of fingerprint evidence offered by defendant; failure to
excise the “certainty factor” from CALJIC No. 2.92, regarding
eyewitness identification; giving erroneous aiding and abetting
jury instructions; failure to instruct the jury that gang evidence
alone cannot prove that a defendant is an aider and abettor;
advising the jury of courtroom operation costs; failure to provide
a unanimity instruction relating to the criminal threat charge;
cumulative prejudice from all the claimed errors; vindictive
prosecution; and failure to determine ability to pay before
imposing statutory assessments and a fine.
We initially issued an opinion affirming the judgment, but
granted a rehearing to consider the effect, if any, of the recently
published opinion in People v. Lemcke (2021) 11 Cal.5th 644(Lemcke). On rehearing, we again conclude that defendant
forfeited the issue, and finding no merit to any of defendant’s
contentions, we affirm the judgment.
BACKGROUND
In 2011, a jury convicted defendant and two codefendants,
Joel Childress and Eric Allen, of first degree murder in violation
2
of Penal Code section 187, subdivision (a).1 That jury found true
the special circumstance allegation that defendant intentionally
killed the victim while he was an active participant in a criminal
street gang and the murder was carried out to further the
activities of the gang. (§ 190.2, subd. (a)(22).) The jury also
found defendant guilty of two counts of attempted willful,
deliberate, and premeditated murder (§§ 187, subd. (a), 664) and
one count of making a criminal threat in violation of section 422.
The jury found true both the allegation that a principal
personally and intentionally used and discharged a firearm,
within the meaning of section 12022.53, subdivisions (b), (c) and
(e)(1), proximately causing great bodily injury and death to the
victims, and that the crimes were committed for the benefit of a
criminal street gang, with the specific intent to promote, further
and assist in criminal conduct by gang members, within the
meaning of section 186.22, subdivision (b)(1)(C).
The conviction was affirmed on direct appeal, but a federal
writ of habeas corpus resulted in reversal of the conviction and
retrial. (See Palmer v. Davey (9th Cir. 2018) 729 Fed.Appx. 573.)
The second jury convicted defendant of the same offenses and
found true the same special allegations in addition to a firearm
enhancement alleged pursuant to section 12022.5, subdivision
(a), which was added prior to the second trial.
Defendant was sentenced on November 8, 2019. With
count 5, criminal threats, as the base term, the trial court
sentenced defendant to a determinate prison term of 11 years,
consisting of the middle term of two years plus four years for the
firearm enhancement alleged under section 12022.5, subdivision
1 All further statutory references are to the Penal Code,
unless otherwise indicated.
3
(a), and five years for the gang enhancement alleged under
section 186.22, subdivision (b)(1). The trial court sentenced
defendant to a consecutive term of life without the possibility of
parole (LWOP) for the special circumstance murder, plus a term
of 25 years to life for the firearm enhancement alleged under
section 12022.53, subdivisions (d) and (e)(1); and the court
imposed and stayed terms for the remaining enhancements. As
to each of the two attempted murders, the court imposed a
consecutive life term plus 25 years to life for the firearm
enhancement alleged under section 12022.53, subdivisions (d)
and (e)(1), and imposed but stayed the remaining enhancements.
The court further ordered defendant to pay fines, fees, and victim
restitution.
Defendant filed a timely notice of appeal from the
judgment.
Prosecution evidence
The criminal threat
Yvonne Love testified that on May 8, 2009, she was
walking west in an alley near Degnan and Exposition Boulevards
when a blue four-door car turned into the alley, traveling east.
The car had tinted windows and when it came close to her a
window was rolled down. As she passed the car she heard the
front passenger, whom she later identified as defendant, say,
“Pull back. Pull Back. Pull back. Pull Back.” The car stopped,
backed up, and the backseat passenger got out holding a black
gun. As he held the gun to her chest, he followed directions from
the front passenger, who said, “Get off the car and get her.” Love
later identified defendant, who was thinner then than at trial, as
the front passenger who was “calling the shots.” The back
passenger who got out with the gun appeared to be younger, a
“little boy.”
4
Love asked the men to let her please just go get her bacon
and eggs. People, who were starting to move around nearby,
seemed to spook the man holding the gun. When defendant told
her to approach, she saw a large black revolver in his lap (a
“Dirty Ha[r]ry” or “cowboy” gun). Defendant said something
about the blue “rag” on her head, and she remembered that she
was wearing a borrowed blue bandanna that day. She thought
they were all “gang-banging” on her. Defendant said, “Bitch, I’ll
kill you. Blood. I’ll kill you.” Irritated, he was “running his
mouth,” and “was just going crazy on [her].” She took it as a
serious threat. Defendant asked if she knew the neighborhood
she was in, because of the blue rag on her head. She interpreted
that to mean that he was a gang member. She was within about
four or five inches of him and maintained eye contact, focusing
primarily on him because he was calling the shots. The driver
then said, “Bullets have no names on them,” and drove away.
Love memorized the car’s license plate number, and at
10:28 a.m., she called 911 and gave the number to the operator.
The police came quickly, and as soon as they arrived, Love heard
gunshots. Her neighbor ran up and said that a girl had just been
hurt. The 911 call was played for the jury, who heard Love
describe the car and say it went toward Exposition Boulevard.
She described the back passenger as wearing a black hoodie; the
driver, a gray and red sweatshirt; and defendant, a gray shirt.
The shooting
Nineteen-year-old Rosa Gallegos was fatally shot on May 8,
2009, shortly before 10:30 a.m. She was sitting in her parked car
on 11th Street,2 chatting with her boyfriend of two years, Luis
2 Not far from where Love encountered the three men later
identified as defendant, Allen and Childress.
5
Miralda and his neighbor, Kenneth Thomas. After giving
Gallegos a kiss through the driver’s side window, Miralda moved
to the passenger side of her car intending to enter. As he did, a
black Chevrolet Malibu stopped in the street just to the rear of
Gallegos’s car, facing in the same direction.
Miralda and Thomas both testified. Miralda saw three men
in the car: the driver and two passengers, one in the front and
one in the back seat. The back door opened and a man got out
and started shooting. Miralda thought the front passenger door
may also have opened. When he saw a gun pointing toward him
and Thomas, Miralda ducked down by the sidewalk and heard
five or six gunshots in rapid succession. He saw Thomas fall on
the sidewalk next to the front of Gallegos’s car, and then heard
more gunshots. When the shooting stopped, the car traveled
toward Jefferson Boulevard. Miralda got up and saw that
Gallegos had been shot in the chest and side. Her eyes were
open, and she was shaking and unable to talk, although she tried.
He called 911, and the recording was later played for the jury.
He described the car as a black Chevrolet Malibu but seemed
unable to focus on questions about the suspects. Miralda knew
he saw one person but thought he may have seen two shooters,
one in front and one in the back.
Thomas testified that he, Miralda and Gallegos had walked
across the street to her Monte Carlo, which Gallegos entered.
After a few minutes, he saw a dark-colored sedan approaching
with at least three occupants. The car stopped near the side of
the Monte Carlo. Thomas saw an arm and a gun flash that
appeared to come from the back seat. He heard about four
gunshots and was hit in the arm with the first one. Thomas was
squatting, holding his wound, and peering through the window
when he heard Gallegos call out to Miralda, and then saw the
6
same arm come through her driver’s side window and shoot her a
couple times. The backseat passenger was the only person he
saw out of the car. The bullet that hit his arm went straight
through, shattered the bone from his elbow up. Rods and pins
were later placed in his arm, which took about a year to heal and
still sometimes bothers him 10 years later.
Thomas testified that a few days later he spoke to the
police but had difficulty remembering what he told them, even
after being given the opportunity to refresh his memory by
reading his prior testimony. He remembered that he saw the
arm of someone wearing a gray windbreaker-type jacket with a
little red on it, and that the shooter was male. Thomas
acknowledged that the transcript of the prior trial reflected that
he testified that there were two shooters, although at this trial,
he could remember only one shooter. Finally, the trial court took
judicial notice of Thomas’s 2011 testimony, as follows:
“[Q:] ‘How many people got out of the vehicle?’ [A:]
‘I think two.’ [¶] . . . [¶] [Q:] ‘Do you remember
telling either this detective or Detective Gordon that
one person got out of the car?’ [A:] ‘I don’t
remember. I remember the door opening. I
remember two people getting out. Like, one was
busting over the car. One hit me, I guess. I got
down, to stay out of the way, and that’s how it went.’
[¶] . . . [¶] [Q:] ‘But did you say’—Again, I’m just
trying to get what you are saying. ‘Did you tell the
officers that two passengers got out, or one passenger
got out?’ [A:] ‘I don’t know. I know one got out and
started shooting that hit me, but I know there was
two shooters.’ [¶] . . . [¶] [Q:] ‘And you’re certain
that you [sic] both got out of the back seat?’ [A:]
‘Yeah. And I know what two guns being fired sound
like. I know what two doors closing, like, after guns
shooting, sound like. I know what they look like,
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opening, or what they sound like opening.’ [¶] . . .
[¶] [Q:] ‘So you told the detectives that there were
two shooters?’ [A:] ‘I just sat here and told you it
was two shooters.’ [¶] . . . [¶] [Q:] ‘Did anyone come
out of the front passenger?’ [A:] ‘Nah.’”
Thomas recalled that in his 2011 testimony he was asked
whether he saw a front passenger and that he replied, “I didn’t
see. I didn’t see what the driver looked like. I didn’t see if there
was a front seat passenger. I got shot from the backseat.”
The investigation
Detective Phil Rodriguez and his partner Officer Kenneth
Sanchez arrived at the murder scene soon after the shooting. The
area was known to be the territory of the Rolling 30’s Harlem
Crips gang (Rolling 30’s), a mortal enemy of the Black P-Stone
gang (BPS gang). Suspecting a gang shooting, the officers
obtained a description and license number of the suspects’ car
and went in search of it in rival BPS gang territory. The officers
spotted the car and followed it to a gas station, where its
occupants were detained. After the officers ordered the two
occupants out of the car, they identified Childress and Fila
Burton, who lived with Childress. They took possession of two
cell phones, one from Childress’s person and the other found in
the car. Thirty-two fingerprints were lifted from the car
belonging to Allen and Childress, but none was identified as
belonging to defendant.
Spent cartridge casings from a semiautomatic handgun,
some brass and some aluminum, were found in Gallegos’s Monte
Carlo and on the ground outside, under the car, on the driver’s
side, and on the rear passenger side. Bullets and fragments were
also recovered. After Childress was arrested, his home was
searched and a box of ammunition was found containing five
8
Blazer nine-millimeter Luger brass rounds and four CCI nine-
millimeter Luger aluminum rounds.
A firearms expert examined the casings found at the scene
of the shooting. A few were CCI aluminum casings, and the rest
were brass casings manufactured by PMC, Blazer, and Speer.
The expert was able to determine that all of them were fired by
the same nine-millimeter semiautomatic handgun and that two
of the bullets recovered could have come from that same firearm.
About one week after the shooting, Detective Brian Thayer
and his partner Officer Jarrott stopped a car driven by defendant,
who was accompanied by two members of the BPS gang. At the
time Detective Thayer worked primarily in the Los Angeles
Police Department gang unit, specializing in Blood gangs,
especially the BPS gang. He had both experience and vast
knowledge about its culture, life styles, members, rivalries, allies,
attire, locations, and the types of crimes they committed. As he
approached the stopped car, Detective Thayer recognized the
driver as defendant from prior contacts. He also recognized
defendant’s passengers Richard Bennett and Bryant Garbutt
from prior contact with them. It was Detective Thayer’s expert
opinion that defendant was a member of the BPS gang.
Defendant had repeatedly admitted to Detective Thayer that
defendant was a member of the BPS gang, and that he had gang-
related tattoos: a large “B” and “S” meaning “Black Stones” on
his chest. On his stomach was “JSB” meaning “Jungle Stone
Bloods,” both common tattoos for BPS members.
When defendant was arrested, the officers recovered gloves
and hoodies, items often used to commit gang-related crimes to
hide identity, fingerprints or gunshot residue, in the car. They
also recovered an Atlanta Braves hat and a cell phone.
9
The next day police searched defendant’s residence and in a
bedroom found a letter addressed to defendant dated March 29,
2008. The last line in the letter read: “Keep shit active. Stone
love or no love.” Police also found a red Atlanta Braves baseball
cap, a red St. Louis Cardinals baseball cap, and a gray and red-
hooded sweatshirt.
An examination of defendant’s cell phone revealed several
BPS gang-related text messages. Cell tower data placed
defendant’s cell phone number near the scenes of both crimes
around the time they occurred. Defendant’s phone received two
calls between 10:25 and 10:30 a.m. The first call went
unanswered and the second call resulted in a conversation. The
first call used a cell tower near the scene of the shooting, and the
second call used a tower near the area where Love was
threatened.
An examination of the cell phones recovered from Childress
and defendant disclosed several contacts with each other between
7:54 a.m. and 9:16 a.m. on May 8, 2009. The last communication
occurring approximately one hour before the shooting. Those
calls used a cell tower near defendant’s home.
The identification of the suspects
Love gave Detectives Richard Gordon and Brian Calicchia
descriptions of the driver and passengers. All three were African-
American men. The driver was described as light-complected, a
“caramel brown,” the same as defendant. The backseat
passenger had a darker complexion and was heavier than the
driver. Officers took Love to a gas station where they asked
whether a person there was the one who had pulled the gun on
her. She identified the man as the driver. She also identified the
car at the gas station as the one he had been driving.
10
The next day the detectives brought Love a six-photograph
photo lineup. She circled photographs Nos. 3 and 6, and wrote
that she was certain that No. 6 was the front seat passenger with
the gun, although No. 3 had a similar forehead. Defendant’s
photograph was in the No. 6 position. In another photographic
lineup, Love identified Allen’s photograph as depicting one of the
suspects, and in another she incorrectly identified a photograph
as possibly depicting the backseat passenger.
Although at trial Love did not initially remember a live
lineup, she did remember that she had been shown three people
behind a glass and had identified defendant as the front
passenger. She also identified him in court in 2010 and identified
him at the second trial as the person in the front seat. On the
same day as the live lineup, May 18, 2009, the detectives showed
her a gray and red sweater, which she identified as the sweater
worn by defendant.
Miralda spoke to the police at the scene after Gallegos left
in an ambulance. Although his memory at the second trial had
faded, he testified that he said the driver and front passenger
were Black males, one of them wore his hair in an afro style
about three or four inches long, and the front passenger was in
his early 20’s, with a short haircut, and had a gray zip-up
sweatshirt with a red design. He said the shooter wore dark
clothing. The backseat passenger wore a dark hoodie with the
hood up and had a dark complexion. Later that day police took
him to a gas station to see if he could identify any person or car.
He recognized a person from the car, and thought the car at the
gas station looked like the same black Chevrolet Malibu. Miralda
testified that the person looked like the front passenger, but he
had trouble remembering. At the time of his identification, he
11
wrote a short statement saying that he was “100 per cent sure”
that the person was the driver and the car was the same car.
Miralda met again with detectives a few days later and
they showed him several sets of photographs. He circled
defendant’s photograph noting a similar shaped face as the front
passenger, the one in the gray sweatshirt with red design on the
right shoulder. Ten days after the shooting Miralda was shown a
live lineup. He said that Nos. 1 and 4 looked like the passenger,
but he was not 100 percent certain. Defendant was in the No. 5
position. Miralda was also shown a sweatshirt and identified it
as the sweatshirt worn by the front passenger. When Miralda
testified in 2010, he identified all three defendants in court and
identified Allen as the back passenger.
Gang evidence
Officer Sanchez testified as the prosecution’s gang expert
regarding the BPS gang, its history, territory, symbols, and its
primary criminal activities, including murder, attempted murder,
robberies, burglaries, weapons possession, narcotics sales, and
extortion. He noted that the gang members also engaged in
writing BPS-related graffiti in their territory and rival gang
territory and in crossing out rival gangs’ graffiti. He opined that
this and the commission of violent crimes was used to instill fear
and intimidation within the community. Intimidating and
scaring witnesses and victims caused them to be reluctant to
testify or cooperate with law enforcement. The gang also
intimidates the community by displaying their gang colors. As a
Blood gang, BPS associated with the color red, while Crip gangs
used the color blue.
Officer Sanchez explained “snitching” as cooperating with
law enforcement or giving them information about any gang
member, whether he is a member of his own gang or a rival gang.
12
Snitching is also telling others, such as a girlfriend or other loved
one, about a gang member’s involvement in a crime.
Consequences for snitching range from a beating to being
murdered in gang culture. Snitching on one’s fellow gang
member is likely to get the snitch murdered.
Officer Sanchez testified that the charged crimes were
committed in the territory occupied by the 18th Street and the
Rolling 30’s gangs, which were rivals to the BPS gang. Like
Detective Thayer, Officer Sanchez was of the opinion that
defendant, Childress, and Allen were all members of the BPS
gang. All three had tattoos that showed their affiliation with the
BPS gang. Furthermore, both defendant and Allen had
previously admitted to their membership in the BPS gang.
Officer Sanchez was asked two hypothetical questions
based upon the facts in evidence in this case. In the first, he was
asked to assume that three BPS gang members drove into rival
gang territory and threaten a woman wearing a blue bandanna.
In the second hypothetical, Officer Sanchez was asked to assume
that three members of BPS drove into rival gang territory, and
seeing a young Latino man, immediately stop the car and two of
the gang members begin shooting him and the two people near
him. It was Officer Sanchez’s opinion that in both hypotheticals,
the crimes were committed in association with the BPS gang for
the gang’s benefit and to elevate the participants’ status within
the gang by strengthening the power and reputation of the gang
through fear. Officer Sanchez also opined that all three
hypothetical participants in the crime were active members of the
gang.
13
Defense evidence3
Professor of cognitive science and experimental
psychologist Kathy Pezdek, Ph.D., testified as an eyewitness
identification expert. She explained how human memory works
and the various factors that affect eyewitness identification, such
as exposure time (the length of time one looks at the perpetrator’s
face), distractions, obstructions, the stress of the event, a disguise
or anything that might cover the perpetrator’s face, same-race
identification, time delay, a biased identification test, postevent
contamination, and the inherent bias of in-court identification.
Refusal of Allen and Childress to testify
Out of the presence of the jury, the trial court and counsel
discussed the transcript of the police interviews of Allen and
Childress, and defense counsel asked the court if Allen could be
brought out and questioned before calling him in front of the jury.
The court replied, “No. No. If he refuses to testify, he can refuse
to testify in front of the jury. He has no 5th Amendment, or no
6th Amendment issue.” Defense counsel asked for a ruling on the
pretrial issue regarding whether the court would allow the
prosecution to have the jury see the witnesses refuse to testify.
Defense counsel wanted to “renew [his] objection” to that
procedure, as well as his objection based on the ruling that the
witnesses had no privilege against self-incrimination. He also
asked that counsel be appointed for the witnesses in “an
abundance of caution” concerning the possibility that the
privilege may be available to them. The court overruled the
objections and denied the request.
Later, outside the jury’s presence, the court reported that
as expected, Allen refused to leave lockup. The court added, “I
3 Defendant did not testify.
14
can extract him, have him dragged out, and he will refuse to
testify. I am not inclined to do that.” Defense counsel agreed and
stated he would object if Allen were brought out in front of the
jury. Without objection, the court stated: “The witness, Eric
Allen, has refused to come to court from the lock-up. I could drag
him out here, which I am not going to do. No person has a right
to refuse to testify. Mr. Allen does not have a right to refuse to
testify, but to go through a circus and a charade such as this, I
am not going to do this. [H]e has refused to testify. He does not
have the right to refuse to testify, and so we’ll go forward.”
When the prosecutor called Childress to testify, he
appeared and was sworn. The prosecutor’s first and only
question was, “[D]id you ever tell the Los Angeles Police
Department anything about what happened on May 8th, of
2009?” There was no objection, and Childress replied, “I invoke
the 5th Amendment.” Told by the court that he did not have the
Fifth Amendment privilege and that he had to answer the
question, Childress asked why. The court stated, “One, because I
ordered you to,” to which Childress replied, “You already ordered
me to 122 years, life without.” After the court asked Childress
whether he was refusing to answer the question, Childress asked,
“[H]ow come I don’t talk to no counsel or nothing?” The court
explained that he had no Fifth Amendment privilege, and asked
whether he intended to answer any questions. When Childress
replied, “No,” the court stated, “Sir, you are in contempt of court.
Remove the witness, please.”
The next day, defense counsel asked the court to instruct
the jury not to draw any inferences from the refusals of Allen and
Childress to testify. Defense counsel also moved for a mistrial
based on Childress’s “demonstration before the jury.” After
hearing argument, the trial court denied both motions.
15
DISCUSSION
I. Childress and Allen and their refusal to testify
Generally
Defendant contends that the trial court’s ruling that Allen
and Childress did not have the right to refuse to testify, based on
the privilege against self-incrimination, was made without a
hearing in violation of California law and Fifth Amendment
procedural rules. Defendant also claims that the trial court
prejudicially erred in failing to appoint counsel for Allen and
Childress.
“To avoid the potentially prejudicial impact of having a
witness assert the privilege against self-incrimination before the
jury, [it is] recommended that, in determining the propriety of the
witness’s invocation of the privilege, the trial court hold a
pretestimonial hearing outside the jury’s presence.” (People v.
Mincey (1992) 2 Cal.4th 408, 441.) When there is a dispute about
whether a witness may legitimately rely on the privilege, “[s]uch
a procedure makes sense under the appropriate circumstances.”
(People v. Doolin (2009) 45 Cal.4th 390, 442.) “[I]t is the better
practice for the court to require the exercise of the privilege out of
the presence of the jury [citation].” (People v. Johnson (1974) 39
Cal.App.3d 749, 759.) However, whether to do so is a decision
within the trial court’s discretion. (People v. Pugh (1983) 145
Cal.App.3d 854, 859.)
Defendant acknowledges the general rule that the privilege
against self-incrimination terminates “when the sentence has
been fixed and the judgment of conviction has become final,” as
stated by the United States Supreme Court in Mitchell v. United
States (1999) 526 U.S. 314, 326. Citing inter alia, People v.
Sisneros (2009) 174 Cal.App.4th 142, 149-154 (Sisneros), People v.
16
Lopez (1999) 71 Cal.App.4th 1550, 1554 (Lopez) and People v.
Fonseca (1995) 36 Cal.App.4th 631, 635, defendant also
acknowledges that California appellate courts have long
permitted trial courts to allow witnesses who lack the privilege
against self-incrimination to be called to the stand to invoke the
privilege and refuse to testify in the presence of the jury.
Defendant further acknowledges that when witnesses have no
constitutional or statutory right to refuse to testify, jurors are
entitled to draw a negative inference from their refusals. (See,
e.g., Sisneros, supra, at p. 152; Lopez, supra, at pp. 1554-1556.)
Defendant’s complaint appears to be that the trial court
should have appointed counsel for Allen and Childress, and then
held a hearing outside the jury’s presence to determine whether
there was another valid ground to assert a Fifth Amendment
privilege not to testify about the crimes they committed with
defendant. The argument is that the trial court erred in finding
that any privilege against self-incrimination they had,
terminated on the finality of their convictions. However,
defendant has not identified an error that violated a federal
constitutional right held by him. He complains that the trial
court’s procedure denied Allen and Childress of fundamental
fairness under the federal and state constitutions. Defendant has
no standing to object to violation of another person’s Fifth
Amendment privilege against self-incrimination. (People v.
Badgett (1995) 10 Cal.4th 330, 343.)
Defendant claims that in McKune v. Lile (2002) 536 U.S. 24(McKune) the United States Supreme Court created an exception
to the general rule that the privilege terminates as to an offense
upon the finality of the conviction. His claim is based on dicta
found in the plurality opinion such as, “The privilege against self-
incrimination does not terminate at the jailhouse door . . . .” (Id.
17
at p. 36.) The remainder of the sentence, which defendant did
not quote, was, “but the fact of a valid conviction and the ensuing
restrictions on liberty are essential to the Fifth Amendment
analysis.” (Ibid.) There, a prison rehabilitation program
required participants to admit their criminal conduct and accept
counseling or lose certain privileges. The Supreme Court rejected
the inmate’s Fifth Amendment claim and found that the loss of
privileges did not amount to unconstitutional coercion. (McKune,
supra, at pp. 40-45, 47-49.) This case is not applicable to the
facts presented here.
Defendant also relies on what he calls the “In re Duckett
caveat,” which he has read into In re Duckett (1978) 76
Cal.App.3d 692 (Duckett). There, after Duckett had been found
not guilty of a crime by reason of insanity and sent to a hospital,
a hearing was held to determine whether he was no longer a
danger and entitled to be released. (Id. at p. 694.) Duckett
invoked the Fifth Amendment, refused to testify, and the refusal
was considered in denying his request for outpatient parole. (Id.
at pp. 697-699.) In denying his petition for writ of habeas corpus,
the appellate court explained that Duckett had “no Fifth
Amendment right to refuse to take the witness stand” because he
could never again be prosecuted for the crimes that resulted in
his hospital commitment. (Id. at p. 699.) The court then added
the language that defendant refers to as a “caveat”: “[I]f
perchance while on the witness stand [Duckett] were to be asked
questions having a reasonable tendency to so incriminate
himself, his right to then decline to answer was in no way
abridged.” (Ibid.)
Neither McKune nor Duckett involved the issue of calling a
witness to the stand in the presence of a jury with knowledge
that the witness will likely invoke the Fifth Amendment. As
18
respondent argues, the language in Duckett quoted by defendant,
like the holdings in Sisneros and Lopez, stands for the proposition
that a person may not rely on the privilege to refuse to take the
witness stand or refuse to testify about a crime for which he has
already been subjected to a final judgment after a conviction or
an acquittal; and taking the witness stand cannot be avoided
simply by speculating that some question could be asked that
would tend to incriminate him. (See Sisneros, supra, 174
Cal.App.4th at pp. 149-154; Lopez, supra, 71 Cal.App.4th at
p. 1554; Duckett, supra, 76 Cal.App.3d at pp. 698-699.)
Defendant responds that Allen and Childress might give
the testimony that would lead to evidence of some different
crime. He cites the test set forth in Hoffman v. United States
(1951) 341 U.S. 479, 486-488 (Hoffman), as quoted in People v.
Trujeque (2015) 61 Cal.4th 227, 267-268 (Trujeque), as follows:
“The test from Hoffman provides that ‘[t]o sustain the privilege,
it need only be evident from the implications of the question, in
the setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered might be
dangerous because injurious disclosure could result.’ [Citation.]
In that regard, a witness’s answers need not in themselves
support a conviction under a criminal statute, but may ‘furnish a
link in the chain of evidence’ needed to prosecute the witness for
a crime. [Citation.] Ultimately, a trial court may reject an
assertion of the privilege only when it appears to the court
‘“perfectly clear, from a careful consideration of all the
circumstances in the case, that the witness is mistaken, and that
the answer[s] cannot possibly have such tendency” to
incriminate.’”
Defendant concludes from the quoted language that the
trial court erred in “predetermin[ing]” that the privilege did not
19
exist without the appointment of counsel for Allen and Childress
and a pretestimonial hearing outside the jury’s presence with
careful consideration of all the circumstances. Defendant has
not, however, shown that the trial court failed to consider all the
relevant circumstances. As respondent points out, Trujeque also
held that a witness may not “make a blanket assertion of the
privilege against self-incrimination.” (Trujeque, supra, 61
Cal.4th at p. 267; see Hoffman, supra, 341 U.S. at p. 486.) The
privilege relates to specific areas of testimony; thus, “‘[a]lthough
the witness may have a valid claim to the privilege with respect
to some questions, the scope of that privilege may not extend to
all relevant questions.’” (Trujeque, supra, at p. 268.) And as
respondent notes, defendant has pointed to nothing in the record
indicating that the prosecutor intended to elicit testimony about
any matter other than the crimes Allen and Childress committed
on May 8, 2009 for which they were convicted. Indeed, the only
question put to Childress before he refused to answer was, “[D]id
you ever tell the Los Angeles Police Department anything about
what happened on May 8th, of 2009?”
Moreover, the trial court held a pretrial hearing under
Evidence Code section 402 to determine whether the prosecution
could call the witnesses in front of the jury and whether they
could assert the privilege against self-incrimination.4
As the trial court’s orders are presumed correct, it is
defendant’s burden not only to present a record adequate for
4 We observe that that the Honorable Ronald S. Coen
presided over the 2010-2011 trial of defendant, Childress, and
Allen, as well as defendant’s retrial, the subject of this appeal.
We assume he was familiar with the facts about which the
prosecutors would question the two witnesses.
20
review, but also to affirmatively demonstrate error. (Denham v.
Superior Court (1970) 2 Cal.3d 557, 564-565.) Defendant agrees
that the witnesses’ convictions for the crimes charged here
against defendant were final. Thus, the trial court correctly
ruled that their privilege against self-incrimination had
terminated with regard to relevant questions about the crime
that resulted in those convictions. (Sisneros, supra, 174
Cal.App.4th at pp. 149-151; Lopez, supra, 71 Cal.App.4th at
pp. 1555-1556.)
We agree with respondent that any error in allowing the
jury to know that the two witnesses refused to testify and in
declining to appoint counsel for them is harmless and should be
reviewed under the test for prejudice due to state law error as
stated in People v. Watson (1956) 46 Cal.2d 818, 836, which asks
whether is its reasonably probable the defendant would have
obtained a different result absent the asserted error. Defendant
disagrees and contends that the proper test for federal
constitutional error is found in Chapman v. California (1967) 386
U.S. 18, 24 (Chapman), which requires that the People show
beyond a reasonable doubt that the asserted error did not
contribute to the verdict.
Defendant claims that the asserted errors fail both tests for
prejudice, as the evidence against him was not compelling or
overwhelming, and the asserted error filled in all the holes in the
prosecution’s case. Defendant also contends that prejudice is
shown by the court’s denial of his request to instruct the jury not
to infer anything from the witnesses’ refusals, and then, without
a limiting or curative instruction, instructing them with CALJIC
No. 2.00 that “[e]vidence consists of the testimony of witnesses,
writings, material objects, or anything presented to the senses
and offered to prove the existence or non-existence of a fact.” He
21
reasons that telling the jury that Allen refused to testify when he
had no right to do so, allowing Childress to claim the privilege
before the jury, and allowing him to say that he was sentenced to
122 years and “life without” amounted to evidence the jury was
allowed use in any manner they chose, even to establish
defendant’s guilt. Defendant concludes: “There can be no greater
prejudice to the accused than to have two accomplices under the
prosecution’s direct perpetrator-accomplice theory tell the jury
that the defendant was guilty based on their refusal to testify and
the court’s finding that they had no right to refuse to testify
because the privilege against self-incrimination did not apply to
them.”
Neither the witnesses nor the court told or suggested any
such thing to the jury. As respondent points out, defendant “fails
to identify even a single instance during the closing arguments in
which the prosecution even mentioned the refusals, much less
encouraged the jury to use the refusals for an improper purpose.”
We agree.
Defendant has failed to show that the trial court erred in
refusing his request for an instruction that no inference could be
drawn from the witnesses’ refusals to testify. In rejecting
defendant’s request for such a sweeping instruction, the trial
court held that the jury was entitled to consider the refusals to
support the evidence that gang members act as a unit to advance
the cause of the gang and to protect their members. The court
did not err. The refusals were admissible to support the gang
expert’s testimony regarding BPS gang’s primary criminal
activities of witness intimidation as a means of making witnesses
reluctant to testify, and that snitching on one’s fellow gang
member has serious consequences. (See Sisneros, supra, 174
Cal.App.4th at p. 152.)
22
Defendant could have requested an appropriate instruction
limiting the jury’s consideration to such purpose. (See Sisneros,
supra, 174 Cal.App.4th at pp. 152-153.) But he did not and now
complains that the absence of a limiting instruction caused him
to be prejudiced by the witnesses’ refusals. “[A]lthough a court
should give a limiting instruction on request, it has no sua sponte
duty to give one.” (People v. Hernandez (2004) 33 Cal.4th 1040,
1051.) However, one of defense counsel’s express bases for his
objection was his concern that the jury would infer that the
witnesses were unwilling to testify because they could be labeled
a snitch and killed for it, a permissible inference. (See Sisneros,
supra, at p. 152.) Defendant may not now complain that he was
prejudiced by the omission of an inappropriate limiting
instruction. (See People v. Wader (1993) 5 Cal.4th 610, 657-658.)
We also agree with respondent that the evidence of
defendant’s guilt was compelling and overwhelming. Defendant’s
claim to the contrary is based on conflicts in the witnesses’
identifications, specifically: Love’s difficulty identifying defendant
in a photographic lineup, and her uncertainty until she saw him
in a live lineup; witnesses’ inability to describe defendant’s
clothing with certainty or in minute detail; Miralda’s criminal
convictions; because cell phones do not necessarily connect to the
nearest tower; and because defendant’s fingerprints were not
found in the car.
Defendant’s argument ignores the compelling evidence that
Love identified defendant in a photographic lineup one day after
the shooting and 10 days later in a live lineup. She identified
him both in court in 2010 and in this second trial. Love identified
the gray and red sweater as having been worn by defendant
during the crime. Miralda identified defendant’s photograph in a
photographic lineup a few days after the shooting. Miralda
23
testified that in 2010, he identified all three defendants in court
and identified Allen as the back passenger. These identifications
were corroborated by evidence that after speaking with Childress
a few times by cell phone earlier that morning, defendant was in
the vicinity of the charged crimes when they occurred,
notwithstanding which tower the calls went through.
Defendant concludes that “[t]he jury could have also
reasonably concluded that Allen had also been convicted and
sentenced because his refusal to testify, like Childress’ refusal,
was based on his guilt.” If we correctly understand defendant’s
conclusion, we disagree. The trial court instructed the jury:
“There has been evidence in this case indicating that a person
other than the defendant was or may have been involved in the
crime for which the defendant is on trial. There may be many
reasons why that person is not here on trial; therefore, do not
speculate or guess as to why the other person is not being
prosecuted in this trial, or whether he has been or will be
prosecuted. It is your sole duty to decide whether the People
have proved the guilt of the defendant on trial.” “‘It is
fundamental that jurors are presumed to be intelligent and
capable of understanding and applying the court’s instructions.’”
(People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.)
Thus, we are satisfied that defendant was not prejudiced
under any standard by the absence of a formal hearing and the
appointment of counsel for Childress and Allen.
Childress’s refusal to testify
Defendant contends: “The trial court erroneously and
prejudicially tainted [defendant]’s jury trial by finding that Eric
Allen and Joel Childress did not have the right to refuse to testify
because their privilege against self-incrimination had terminated
and the jury could draw adverse inferences against [defendant]
24
based on their refusal to testify.” (Boldface and capitalization
omitted.) Though, defendant acknowledges that the Fifth
Amendment privilege terminates as to crimes that have resulted
in final convictions, he argues the trial court should have
determined whether there were other crimes not related to the
crimes charged against defendant, as long as the statute of
limitations has not run on unrelated crimes, Allen and Childress
could be prosecuted for gang-related crimes committed before
2009 or after they were sentenced to prison.
As we discussed at length in part I above, the Fifth
Amendment privilege is topic-specific. (Trujeque, supra, 61
Cal.4th at p. 268.) The trial court conducted an Evidence Code
section 402 hearing on the issue prior to trial and defendant
renewed his objections on that issue before either of the two
witnesses were called. There was no indication in the record that
the prosecution intended to ask Allen or Childress about any
criminal activity unrelated to the four crimes committed on
May 8, 2009, for which their convictions are final. Defendant
speculates that the jury would infer defendant’s guilt from the
witnesses’ refusals to testify. Defendant could have requested a
limiting instruction (see People v. Hernandez, supra, 33 Cal.4th
at pp. 1051-1052), which would have cured any potential
prejudice. (See People v. Homick (2012) 55 Cal.4th 816, 866-867.)
Finally, we have rejected defendant’s claim of prejudice.
We need not revisit the issue.
Defendant contends that the trial court should have given
an instruction not to draw any inferences from Childress’s
invocation of the Fifth Amendment, as it violates Evidence Code
section 913, which prohibits comments on the exercise of a
privilege not to testify and requires the court to instruct the jury
not to draw inferences from the exercise. However, section 913
25
presupposes a valid exercise of a privilege. (See Lopez, supra, 71
Cal.App.4th at p. 1554.) Thus, when a witness has no
constitutional or statutory right to refuse to testify, jurors are
entitled to draw a negative inference from their refusals. (See,
e.g., Sisneros, supra, 174 Cal.App.4th at p. 152; Lopez, supra, at
pp. 1554-1556.)5
Defendant argues that the trial court’s statement that
Childress had no right to refuse to testify and his unsolicited
comment that the court had already given him 122 years, life
without, was inadmissible evidence, pursuant to Evidence Code
section 352. Defendant supports this contention with a lengthy
discussion of Pennsylvania caselaw regarding witnesses’ claiming
the privilege against self-incrimination.6 Defendant also
contends that the comments of the trial court and Childress were
irrelevant and thus inadmissible under Evidence Code section
210 and that the probative value of the comments were
outweighed by the danger of undue prejudice, thus excludable in
5 Defendant contends that the trial court could not properly
hold Childress in contempt because “Childress was merely
seeking an explanation for the court’s conclusions . . . .”
Childress refused to answer the first question by invoking the
privilege. After the court told him he did not have the privilege,
he refused to answer any questions. “‘A witness may not employ
the privilege to avoid giving testimony that he simply would
prefer not to give.’” (Lopez, supra, 71 Cal.App.4th at p. 1556,
quoting Roberts v. United States (1980) 445 U.S. 552, 560, fn. 7.)
6 As defendant does not claim that there is no relevant
California judicial authority interpreting Evidence Code section
352, and as he has not explained just how the cited Pennsylvania
cases are relevant or necessary to the construction of section 352,
we decline to include them in our discussion. (Cf. Webster v.
State Bd. of Control (1987) 197 Cal.App.3d 29, 37, fn. 3.)
26
the court’s discretion under Evidence Code section 352.
Defendant failed to object to the trial court’s or Childress’s
comments; nor did he move to strike Childress’s comments. In
reply to respondent’s assertion of forfeiture, defendant claims
that this issue was preserved by the objection to having the jury
see the witnesses refuse to testify, the request for appointment of
counsel for the witnesses, and his claim that the procedure
violated his confrontation right.
We disagree. A challenge to the admissibility of evidence is
generally not cognizable on appeal in the absence of a specific
and timely objection or motion to strike the evidence in the trial
court on the ground urged on appeal. (Evid. Code, § 353.) An
objection on one ground does not preserve a challenge based upon
a different ground. (People v. Partida (2005) 37 Cal.4th 428, 434-
435.) “[A] ‘contrary rule would deprive the People of the
opportunity to cure the defect at trial and would “permit the
defendant to gamble on an acquittal at his trial secure in the
knowledge that a conviction would be reversed on appeal.”’” (Id.
at p. 434.) Thus, “the objection [must] fairly inform the trial
court, as well as the party offering the evidence, of the specific
reason or reasons the objecting party believes the evidence should
be excluded, so the party offering the evidence can respond
appropriately and the court can make a fully informed ruling. . . .
A party cannot argue the court erred in failing to conduct an
analysis it was not asked to conduct.” (Id. at p. 435.)
Defendant appears to suggest that because Childress
blurted out his sentence, defendant had no opportunity to object
and that any objection would not have undone the damage. We
disagree. A motion to strike the comment and advisement to the
jury to disregard it would have undone any damage. Defendant
failed to request that relief.
27
Defendant also contends that the issue was preserved,
reasoning that if the court had granted his request for a
pretestimonial hearing outside the jury’s presence, Childress
would not have been in front of the jury. Defendant cites no
authority for this unusual argument. Defendant further
contends that the issue is preserved because he has “standing” to
assert the error. Defendant gives five reasons for claiming that
he has standing, but cites authority for just two of them. Neither
defendant nor his two cited cases explain how having standing to
assert a claimed error on appeal preserves an otherwise forfeited
issue.7 We need not discuss contentions that are not supported
by legal analysis. (See People v. Medrano (2008) 161 Cal.App.4th
1514, 1520, and cases cited therein.)
Citing People v. Partida, supra, 37 Cal.4th at pages 433-
439, defendant suggests that all constitutional errors are
reviewable without an objection in the trial court. Defendant is
incorrect. The California Supreme Court held that constitutional
claims must be raised in the trial court to preserve a
constitutional challenge on appeal; thus a defendant “may not
argue on appeal that due process required exclusion of the
evidence for reasons other than those articulated in his Evidence
7 Defendant cites section 1259, which does not relieve an
appellant of the duty to preserve a claim of evidentiary error with
an objection, but rather allows an unpreserved challenge to the
giving or omission of a jury instruction if the appellant’s
substantial rights were affected thereby. He also cites Evidence
Code section 913, which prohibits comments on the exercise of a
privilege not to testify and which we have discussed above.
Defendant has not explained how these two provisions excuse a
timely objection and motion to strike evidence that is irrelevant
or unduly prejudicial.
28
Code section 352 argument.” (Id. at p. 435.) Defendant did not
make an Evidence Code section 352 objection in the trial court,
nor did he raise a relevance objection under Evidence Code
section 210. He has thus forfeited his claimed evidentiary errors
and any constitutional error that might be based thereon.
Finally, defendant claims that he did not forfeit the issue
because it was judicial misconduct to allow the jury to learn
irrelevant information and not to give Allen the opportunity to
testify after the trial court made its ruling. Defendant fails to
provide authority or analysis for this contention. Moreover,
defense counsel agreed to the court’s procedure, even stating that
he would object if Allen were brought in to refuse to testify in
front of the jury. Defendant may not now complain. (See People
v. Reynolds (2010) 181 Cal.App.4th 1402, 1408, citing People v.
Williams (2008) 43 Cal.4th 584, 629.)
Allen’s refusal to come to court
Defendant argues: “The trial court violated California law
and committed judicial misconduct in [sic] when it invited the
jury to consider and speculate about accomplice-witness Eric
Allen’s so-called out-of-courtroom-refusal-to-testify conduct.”
(Boldface and capitalization omitted.)
Defendant makes no references to the record in which the
court invited the jury to consider and speculate about Allen’s
refusal to testify. Instead, defendant alleges judicial misconduct
from the court’s disclosure to the jury that Allen refused to come
to court and that compelling his attendance would be “a circus
and a charade.”
As we discussed above, defense counsel agreed with the
court that Allen should not be compelled to come into the
courtroom. When the court put Allen’s action on the record,
defendant did not object. Defendant has failed to provide any apt
29
authority or reasoned argument suggesting how a single, brief,
agreed-upon procedure and the disclosure of Allen’s refusal,
amounts to judicial misconduct. We thus decline to address
defendant’s claim of judicial misconduct. (See People v. Stanley
(1995) 10 Cal.4th 764, 793.)
Defendant also failed to object to the characterization of a
“circus and a charade.” “Ordinarily, the lack of an objection at
trial forfeits the claim on appeal. [Citation.] However, a failure
to object to judicial misconduct does not preclude appellate
review when an objection could not have cured the prejudice or
would have been futile.” (People v. Houston (2012) 54 Cal.4th
1186, 1220.) Defendant claims that any objection would be futile
in light of the court’s previous rulings regarding the privilege and
that admonishment would not have cured the prejudice.
Defendant’s claims do not justify excusing his forfeiture, as he
has failed to show that the alleged misconduct displayed any
hostility toward defendant or his counsel. We note the purported
misconduct was a single remark in a four-day trial, not numerous
or extensive remarks. (Ibid.) Defendant’s contention thus fails
on the merits. (See ibid.)
Defendant invokes section 1259, arguing that the
comments amounted to a jury instruction that no person has the
right to refuse to testify,8 despite the fact that the court was
correct that no person may enter a blanket refusal to testify.
(Trujeque, supra, 61 Cal.4th at pp. 267-268; see Hoffman, supra,341 U.S. at p. 486.) If defendant wished clarification, he should
have requested it. “A trial court has no sua sponte duty to revise
or improve upon an accurate statement of law without a request
from counsel [citation], and failure to request clarification of an
8 See footnote 7, ante.
30
otherwise correct instruction forfeits the claim of error for
purposes of appeal [citations].” (People v. Lee (2011) 51 Cal.4th
620, 638.) We reject defendant’s wholly unsupported claim that
the failure to make a modification for which the court has no sua
sponte duty amounts to judicial misconduct.
Defendant argues an admonishment would have been
ineffective, and the only remedy would have been to compel Allen
to come into court and refuse to testify in front of the jury. In a
logic-defying argument, defendant posits that this would only
have reinforced the “circus and charade” comment, causing
defendant even more prejudice.
Finally, defendant asks that we exercise our discretion to
consider the issue. We decline to do so as we discern neither
merit to the claim or prejudice to defendant. The trial court gave
an admonition designed to dispel any prejudice, without forcing
Allen into court, by reading CALJIC No. 17.30:
“I have not intended by anything I have said or done,
or by any questions that I may have asked, or by any
ruling I may have made, to intimate or suggest what
you should find to be the facts, or that I believe or
disbelieve any witness. [¶] If anything I have done
or said has seemed to so indicate, you will disregard
it and form your own conclusion.”
Jurors are presumed to have understood and followed the
trial court’s instructions. (People v. Gonzales (2011) 51 Cal.4th
894, 940.) We thus presume that even if the court’s comment had
amounted to judicial misconduct, it was rendered harmless by
CALJIC No. 17.30. (See People v. Harbolt (1988) 206 Cal.App.3d
140, 158.)
II. Right of confrontation
Defendant contends that the trial court denied his
constitutional rights to confront and cross-examine Allen and
31
Childress. As the prosecutor asked one question of Childress,
eliciting no answer, there was no confrontation clause violation.
(See Sisneros, supra, 174 Cal.App.4th at pp. 150, 154; People v.
Perez (2016) 243 Cal.App.4th 863, 888.)
Defendant relies in part on Douglas v. Alabama (1965) 380
U.S. 415, which bears no similarity to this case. There, an
accomplice was called and invoked his Fifth Amendment
privilege (which had not terminated as his conviction was not
final) and refused to answer any question regarding the alleged
crime. (Douglas, supra, at p. 417.) The prosecutor then
questioned the witness about a confession he had signed, and
after each refusal to answer, continued to question him until the
entire document had been read. (Id. at pp. 417-418.) Since the
witness refused to answer any questions, the defendant was
unable to cross-examine the witness, and his right to
confrontation was violated. (Id. at p. 419.)
Defendant also claims error under Bruton v. United States
(1968) 391 U.S. 123, by quoting part of a passage in that opinion
at page 126 regarding “the substantial risk that the jury, despite
instructions to the contrary, looked to the incriminating
extrajudicial statements in determining petitioner’s guilt,
admission of [the accomplice’s confession] violated petitioner’s
right of cross-examination secured by the Confrontation Clause of
the Sixth Amendment.” That case is also inapposite as defendant
has pointed to no extrajudicial confession by Allen or Childress
presented to the jury in this case.
Defendant also relies on Namet v. United States (1963) 373
U.S. 179. Referring to pages 185 and 186 of that opinion,
defendant makes the remarkable assertion (in defendant’s words)
that the United States Supreme Court “concluded that an
inference that ‘when a witness is asked whether he participated
32
in criminal activity with the defendant, a refusal to answer based
on the privilege against self-incrimination tends to imply to the
jury that a truthful answer would be in the affirmative’ and this
‘cannot properly be used as evidence against a criminal
defendant.’” Defendant has chosen isolated phrases from the
opinion and then twisted them to result in what he
mischaracterizes as the court’s holding. In truth, the phrase was
taken from the petitioner Namet’s contention that such an
inference “cannot properly be used as evidence against a criminal
defendant.” (Id. at pp. 185-186.) Moreover, no confrontation
issue was ever presented. The Supreme Court noted: “No
constitutional issues of any kind are presented[,] [and] [a]ll that
this case involves, in short, is a claim of evidentiary trial error.”
(Id. at p. 185.)9
Similarly, defendant’s confrontation contention devolves
into yet another assertion of evidentiary and instructional errors
regarding inferences that defendant claims would be erroneously
drawn by the jury. As we have already rejected such claims as
forfeited, unsupported, or harmless, we decline to revisit them
under the guise of a nonexistent confrontation challenge.
III. Alleged unfair trial
As a separate argument, defendant contends that the facts
and circumstances of the trial court’s rulings, including the jury
being allowed to draw any and all “adverse inferences” against
defendant based on accomplice-witnesses Allen’s and Childress’s
9 The trial court instructed the jury that it could not draw
any inference from the witness’s refusal to testify, except “‘a
logical inference that would appeal to you as having a direct
bearing upon the defendant’s guilt.’” (Namet v. United States,
supra, 373 U.S. at p. 185.)
33
refusal to testify, deprived defendant of due process and a fair
trial, requiring reversal of defendant’s conviction.
State law error in admitting evidence does not violate due
process unless the error renders defendant’s trial fundamentally
unfair. (People v. Partida, supra, 37 Cal.4th at p. 439.) As we
have rejected defendant’s previously discussed arguments upon
finding no error and no prejudice, we reject this contention, as
well.
IV. Exclusion of third party culpability evidence
Defendant contends the trial court erred by excluding
evidence of latent fingerprints from three people recovered from
the Chevrolet Malibu driven by Childress during the crimes. He
also contends that the ruling violated his constitutional right to
present a complete defense. Defendant claims that the trial court
erred in treating the issue as one of third party culpability.
Instead, he claims it was a challenge to the inadequate police
investigation.
Third party culpability evidence is evidence that would
tend to directly connect a third party to the commission of the
charged crime. (People v. Hall (1986) 41 Cal.3d 826, 832.) At the
outset of the hearing defendant’s attorney stated: “. . . I believe
it’s relevant . . . because my defense to the jury is that if P Stone
gang members committed this crime, it was other members of this
gang.” (Italics added.) Thus, defense counsel’s express reason for
the admission of evidence regarding three others was to suggest
third party culpability, rather than to challenge the police
investigation. We therefore reject this claim of error.
Moreover, the trial court acted within its discretion finding
the offer of proof insufficient to allow the evidence. The exclusion
of third party culpability evidence is reviewed for abuse of
discretion. (People v. Elliott (2012) 53 Cal.4th 535, 581.) “‘To be
34
admissible, the third-party evidence need not show “substantial
proof of a probability” that the third person committed the act; it
need only be capable of raising a reasonable doubt of defendant’s
guilt. At the same time, we do not require that any evidence,
however remote, must be admitted to show a third party’s
possible culpability.’ [Citation.] For example, ‘evidence of mere
motive or opportunity to commit the crime in another person,
without more, will not suffice to raise a reasonable doubt about a
defendant’s guilt . . . .’ [Citation.] Moreover, admissible evidence
of this nature points to the culpability of a specific third party,
not the possibility that some unidentified third party could have
committed the crime. [Citations.] For the evidence to be relevant
and admissible, ‘there must be direct or circumstantial evidence
linking the third person to the actual perpetration of the crime.’”
(People v. Turner (2020) 10 Cal.5th 786, 816-817, quoting People
v. Hall, supra, 41 Cal.3d at p. 833.)
Given that defendant has misstated the relevant facts and
argument presented at the hearing of this issue, we summarize:
Defendant sought to present evidence regarding three people
other than Childress and Allen, whose fingerprints were found in
the Chevrolet Malibu, including a photograph of Justin Smith.
Defense counsel represented that all three were members of the
BPS gang; that the person in the photograph resembled
defendant; and like defendant, he had a light complexion.
Counsel argued that detectives should have exercised diligence to
find photographs of the “other two gang members,” and include
all three of them in a photographic lineup. However, of the three
people, only Smith was a documented member of the BPS gang.
The prosecutor thus questioned the basis of defense counsel’s
information, noting that the third party fingerprints could have
been left at any time, and that Childress and Allen had both
35
given pretrial interviews identifying defendant as the front
passenger at the time of the shooting.
The trial court excluded the evidence. The court explained
first that it had reviewed the proffered photograph and found no
similarity between defendant and the person depicted there and
could not tell if the person’s skin tone was light or dark.10 The
court also found that the offer of proof provided only motive and
opportunity, with no direct or circumstantial evidence linking
any third person to the actual perpetration of the crime, which is
insufficient to raise a reasonable doubt. (See People v. Turner,
supra, 10 Cal.5th at p. 817.)
We review a trial court ruling on the admissibility of
evidence for an abuse of discretion, and will not disturb the
court’s discretion unless defendant meets his burden to show that
the court exercised it in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice.
(People v. Goldsmith (2014) 59 Cal.4th 258, 266.) Defendant
makes no attempt to show that the trial court acted arbitrarily,
capriciously, or in a patently absurd manner. He merely repeats
his unfounded claim that the three people whose fingerprints
were found in the car were members of the BPS gang, which, he
argues, provide a gang motive to commit the crime. He also
argues that although motive or opportunity is insufficient under
People v. Hall, supra, 41 Cal.3d 826 and its progeny, evidence of
10 The trial court marked the photograph as court’s exhibit
No. 1. It is defendant’s burden to provide an adequate record and
to demonstrate error from the record. (Denham v. Superior
Court, supra, 2 Cal.3d at pp. 564-565.) As defendant did not have
exhibits transmitted to this court to demonstrate error, we
assume the court’s impression was correct.
36
both motive and opportunity is sufficient to make the evidence
admissible. That is not the holding in Hall, and defendant fails
to provide any authority for his argument. In addition, defendant
has failed to show that all three of these people had a gang
motive, as just one of them was a documented gang member.
Although defendant knew the identities of the three, he did not
offer to prove their gang membership. Finally, the defense offer
of proof included no facts regarding opportunity, in that it did not
include when the fingerprints came to be in the car.
Defendant’s offer did not refer to any “‘direct or
circumstantial evidence linking the third person to the actual
perpetration of the crime.’” (People v. Turner, supra, 10 Cal.5th at
p. 817, quoting People v. Hall, supra, 41 Cal.3d at p. 833.)
Defendant merely repeats the disingenuous argument that the
evidence was offered, not as third party culpability evidence, but
as evidence challenging the adequacy of the police investigation
and showing that the police settled on defendant as the suspect
without checking other known leads. Even assuming this had
been the true purpose of the evidence and the trial court erred in
rejecting it, defendant has failed to demonstrate a miscarriage of
justice. A miscarriage of justice occurs when it appears that a
result more favorable to the appealing party would have been
reached in the absence of the alleged error. (People v. Watson,
supra, 46 Cal.2d at p. 836; see Cal. Const., art. VI, § 13.)
Defendant fails to suggest just how his claim could produce a
more favorable result. Defendant has not established an abuse of
discretion or a miscarriage of justice.
V. Jury Instructions
CALJIC No. 2.92—the certainty factor
Defendant’s sole defense was mistaken identity. He
contends that the trial court erred when the jurors were
37
instructed with CALJIC No. 2.92, which suggests a dozen factors
to consider in determining the weight to give eyewitness
identification testimony, without excising the certainty factor:
“The extent to which the witness is either certain or uncertain of
the identification.”11 Defendant also contends that the alleged
11 The trial court read CALJIC No. 2.92 as follows:
“Eyewitness testimony has been received in this trial
for the purpose of identifying the defendant as the
perpetrator of the crimes charged. In determining
the weight to be given eyewitness identification
testimony, you should consider the believability of
the eyewitness as well as other factors which bear
upon the accuracy of the witness’s identification of
the defendant, including but not limited to any of the
following: [¶] The opportunity of the witness to
observe the alleged criminal act and the perpetrator
of the act; [¶] The stress, if any, to which the
witness was subjected at the time of the observation;
[¶] The witness’s ability following the observation to
provide a description of the perpetrator of the act; [¶]
The extent to which the defendant either fits or does
not fit the description of the perpetrator previously
given by the witness; [¶] The cross-racial or ethnic
nature of the identification; [¶] The witness’s
capacity to make an identification; [¶] Evidence
relating to the witness’s ability to identify other
alleged perpetrators of the criminal act; [¶] Whether
the witness was able to identify the alleged
perpetrator in a photographic or physical line-up; [¶]
The period of time between the alleged criminal act
and the witness’s identification; [¶] Whether the
witness had prior contacts with the alleged
perpetrator; [¶] The extent to which the witness is
either certain or uncertain of the identification; [¶]
38
error was a violation of his constitutional right to due process as
it deprived him of meaningful opportunity to present a complete
defense.
In our previous opinion we held that defendant had
forfeited this issue by failing to object or request a modification of
the instruction in the trial court. (See People v. Sánchez (2016)
63 Cal.4th 411, 461 (Sánchez); People v. Sullivan (2007) 151
Cal.App.4th 524, 561.) We also rejected defendant’s contention
that the certainty factor was erroneous, noting that we were
bound by the California Supreme Court cases which had
specifically approved the factor, such as Sánchez, supra, at pages
461-462, People v. Johnson (1992) 3 Cal.4th 1183, 1231-1232
(Johnson), and People v. Wright (1988) 45 Cal.3d 1126, 1144
(Wright).)
We granted defendant’s petition for rehearing following the
recent publication of Lemcke, supra, 11 Cal.5th 644. The
Supreme Court had granted review in that case to consider
whether “instructing a jury with CALCRIM No. 315, which
directs the jury to consider an eyewitness’s level of certainty
when evaluating an identification, violate[s] a defendant’s federal
and state due process rights.” (Lemcke, at pp. 653-654.) The
court concluded that it did not, under the circumstances of that
case. (Id. at p. 654.)12
Whether the witness’s identification is in fact the
product of his or her own recollection, and any other
evidence relating to the witness’s ability to make an
identification.”
12 In Lemcke, the court found no material difference between
the wording in CALCRIM No. 315 and the wording of the
certainty factor in CALJIC No. 2.92, explaining that “[i]n effect,
the instructions set forth two ways of saying the same thing:
39
Defendant acknowledges that he did not object to the
instruction, nor did he ask for a modification or clarifying
instruction. Defendant argues that his failure to object should be
excused as futile because “the California Supreme Court’s
holding regarding the witness certainty factor in Lemcke
represents a dramatic and unforeseen change in the law”; and
because the trial court would have been bound by prior decisions
of the California Supreme Court upholding the certainty factor,
such as Sánchez, supra, 63 Cal.4th at pages 461-462, Johnson,
supra, 3 Cal.4th at pages 1231-1232, and Wright, supra, 45
Cal.3d at page 1144. Defendant’s argument appears to be that
the dramatic and unforeseen change in the law was to overturn
Sánchez, Johnson, and Wright. If so, we disagree. The California
Supreme Court did not overturn Sánchez, Johnson or Wright and
did not disapprove the eyewitness certainty factor in CALCRIM
No. 315 or CALJIC No. 2.92.
Contrary to defendant’s claim that the Lemcke court
“disapproved of the inclusion of the witness certainty factor in a
standard jury instruction on eyewitness identification,” the court
held that under the circumstances presented there the defendant
(Rudd) failed to establish error or a denial of due process. (See
Lemcke, supra, 11 Cal.5th at p. 669.) The court noted the
“general agreement [among researchers and the courts of several
other jurisdictions] that witness certainty is not a good indicator
of accuracy under most circumstances,” and acknowledged that
“the current version of the instruction might confuse jurors about
the relationship between confidence and accuracy.” (Lemcke,
that jurors should consider the witness’s level of certainty when
assessing the credibility and accuracy of the identification
testimony.” (Lemcke, supra, 11 Cal.5th at p. 656, fn. 6.)
40
supra, 11 Cal.5th at p. 666.) The court therefore exercised its
supervisory powers by directing “trial courts to omit the certainty
factor from CALCRIM No. 315 until the Judicial Council has the
opportunity to consider how the language might be better worded
to minimize juror confusion on this point.” (Lemcke, at p. 669.)
The court clarified that “[t]rial courts, however, retain discretion
to include the factor when the defendant requests that it do so.”
(Ibid.)13
We reject defendant’s contention that the failure to object
should be excused because the trial court would have been bound
by the California Supreme Court’s prior decisions upholding the
certainty factor, such as Sánchez, supra, 63 Cal.4th 411, Johnson,
supra, 3 Cal.4th 1183, and Wright, supra, 45 Cal.3d 1126.
Defendant does not explain what the trial court would have been
bound to do prior to the publication of Lemcke. In fact there is no
indication in the record that the trial court would have refused a
correct, nonargumentative alternative instruction or
modification. Nor is there anything in Sánchez, Johnson, or
Wright that would have precluded the trial court from granting
such a request. Indeed, the Wright court held that the trial court
13 Not only was there no dramatic change in the law, but the
Lemcke decision was also not unforeseen. The Supreme Court
granted review of the appellate court decision on October 10,
2018, for the express purpose of examining the propriety of the
certainty factor. The case had thus been pending for a year
during defendant’s second trial. (See People v. Lemcke (Oct. 10,
2018, S250108).) Moreover in his 2016 concurring opinion in
Sánchez, supra, 63 Cal.4th at pages 494-498 (conc. opn. of Liu,
J.), Justice Liu urged the court to reevaluate the certainty factor,
making many of the same observations the court has made in
Lemcke, supra, 11 Cal.5th at pages 665-669.
41
had erred in refusing the defendant’s proposed alternative
instruction on eyewitness identification, but found the error
harmless. (Wright, supra, at p. 1144.) “If defendant had wanted
the court to modify the instruction, he should have requested it.
The trial court has no sua sponte duty to do so.” (Sánchez, supra,
at p. 461.)
The record here shows a likelihood that defense counsel
intentionally did not object or request a modification. In Sánchez,
our high court recognized that in some cases the defense “would
surely want the jury to consider how uncertain some of the
identifications were, as CALJIC No. 2.92 instructs.” (Sánchez,
supra, 63 Cal.4th at p. 462.) In Lemcke, the court noted with
approval that in Sánchez it rejected a claim challenging CALJIC
No. 2.92’s certainty language based in part on its observation
“that the instruction was at least partially beneficial to the
defendant because some of the trial witnesses had expressed
uncertainty in their identification”; and on the observation that
the Sánchez court concluded that “‘[a]ny reexamination of our
previous holdings in light of developments in other jurisdictions
should await a case involving only certain identifications.’”
(Lemcke, supra, 11 Cal.5th at pp. 656-657.) Here, in closing
argument, counsel enumerated the CALJIC No. 2.92 factors,
including the certainty factor. She then reviewed at length the
evidence showing just how uncertain were the identifications
made by Love and Miralda. She pointed out that although Love
identified defendant’s photograph in a photographic lineup, she
also identified a different person in the same lineup as possibly
the front passenger. Counsel argued “that’s called a tentative ID.
She’s not saying 100 percent that’s the person. This is not a
positive identification, I submit to you. This is a tentative ID.”
Counsel also spoke at length about Miralda and Love’s conflicting
42
descriptions of the front passenger’s clothing, pointing out that
Miralda selected defendant in a photographic lineup after the
shooting, but failed to identify him in a live lineup. Instead he
chose two others whom he said “looked like” the passenger but
was not sure.
Defendant was thus not prevented from presenting his
defense, and as in Lemcke, defendant has “failed to establish that
the trial court’s decision to include the certainty factor . . .
violated his due process rights or otherwise constituted error.”
(Lemcke, supra, 11 Cal.5th at p. 669.) Also as in Lemcke,
defendant was able to call an eyewitness identification expert to
present evidence of the identification procedures used and to
cross-examine the eyewitnesses.14 (See Lemcke, at p. 647.) In
addition the trial court instructed the jury regarding the
prosecution’s burden to prove defendant’s guilt beyond a
reasonable doubt (CALJIC No. 2.90) and to prove beyond a
reasonable doubt that defendant was the person who committed
the crime (CALJIC No. 2.91). The trial court also instructed the
jury that failure of recollection was common and that innocent
misrecollection was not uncommon (CALJIC No. 2.21.1).
Contrary to defendant’s claim otherwise, these instructions were
essentially the same as those given in Lemcke, which instructed
“that the prosecution retained the burden to prove Rudd’s
identity as the perpetrator beyond a reasonable doubt, and that
14 Defendant complains that Rudd’s expert in Lemcke gave
more detailed testimony than his own expert regarding the limits
of certainty in suggesting accuracy and that no other eyewitness
identification expert was called. However, defendant does not
claim that he was prevented from asking Dr. Pezdek to testify
more fully or from calling a different expert. There is also no
such indication in the record.
43
witnesses sometimes make honest mistakes.” (Lemcke, at
p. 647.)
Defendant suggests that his defense was harmed because
the jury was not instructed, as in Lemcke, that it was required to
consider the expert’s testimony. (See Lemcke, supra, 11 Cal.5th
at pp. 647, 658-659.) Although defendant’s jury was not
specifically so instructed, CALJIC No. 2.92 effectively did so by
instructing the jury to consider many of the factors that coincided
with the points made by Dr. Pezdek in her testimony, including
those regarding the witness’s opportunity to observe the alleged
perpetrator, the stress to which the witness may have been
subjected at the time of the observation, whether the witness’s
identification was close in time to the alleged crime, and any
other evidence relating to the witness’s ability to make an
identification.
Although we find no error, we also conclude that in view of
the instructions given and compelling evidence of defendant’s
guilt (as discussed in part I above,) “[i]t is not reasonably
probable defendant would have obtained a more favorable result
had the trial court deleted the certainty factor.” (Sánchez, supra,
63 Cal.4th at p. 463, citing People v. Ward, supra, 36 Cal.4th at
p. 214.) Thus, if the trial court had erred, we would find it
harmless.
Aider and abettor instructions
Defendant contends that the court erred in failing to
instruct the jury that a conviction of first degree murder or
attempted murder requires a finding beyond a reasonable doubt
that defendant personally deliberated and premeditated an
intent to kill. In particular, he contends that the aiding and
abetting instructions given to the jury, CALJIC Nos. 3.00, 3.01,
and 8.80.1, were erroneous.
44
Defendant claims that although he did not object to the
instructions or request clarification or amplification, he has not
forfeited the issue, because the trial court was obligated to give
only instructions that were correct statements of law (see People
v. Hudson (2006) 38 Cal.4th 1002, 1012) and that defendant’s
substantial rights were affected by the erroneous instruction
(singular). (See § 1259.) Defendant also claims that no objection
was necessary because the court must instruct on all elements
required for conviction. (See People v. Rubalcava (2000) 23
Cal.4th 322, 333-334.) Defendant then argues that the
instructions (plural) were erroneous because they did not offer
guidance on the proper determination of whether an aider and
abettor deliberated and premeditated his intent to kill.
Defendant indicates that just one of the three cited instructions
affected his substantial rights but fails to specify which
instruction.
Defendant’s assignment of error is not clear. Respondent
construes defendant’s argument as claiming that CALJIC No.
3.00 is the allegedly erroneous instruction. Defendant does not
counter respondent’s construction in his reply brief. We agree
with respondent.
Defendant complains that the instruction invited the jury
to find him guilty of whatever crime the jury determined the
shooter had committed, based upon his presence that facilitated
the crime or crimes, without regard to defendant’s own intent or
whether he personally deliberated and premeditated that crime.
As authority for this argument, defendant cites a 2013
depublished case involving CALCRIM former No. 400,15 People v.
15 CALJIC former No. 3.00 is the analogue to CALCRIM
former No. 400. (People v. Johnson (2016) 62 Cal.4th 600, 640.)
45
Ramirez (Sept. 11, 2013, G044703), which (as respondent notes)
was ordered vacated by the California Supreme Court on July 9,
2014 (S214133).16 That case held that an earlier version of the
instruction was defective for the reason defendant argues here.
(See ibid.) However, not only has defendant cited the case in
violation of rule 8.1115 of the California Rules of Court, CALJIC
No. 3.00 was revised prior to defendant’s 2019 trial. As pointed
out by respondent, defendant’s jury was given the revised
version, which makes clear that the aider and abettor’s own state
of mind determines his guilt.17
16 People v. Ramirez, supra, G044703 was previously
published at 219 Cal.App.4th 655.
17 The jury was instructed as follows:
“Persons who are involved in committing or
attempting to commit a crime are referred to as
principals in that crime. Except as to the crime of
murder, each principal, regardless of the extent or
manner of participation, is equally guilty. [¶]
Principals include: One, those who directly and
[actively] commit or attempt to commit the act
constituting the crime; or [¶] Two, those who aid
and abet the commission or attempted commission of
the crime. [¶] When the crime charged is either
murder or attempted murder, the aider and abettor’s
guilt is determined by the combined acts of all the
participants, as well as the person’s own mental state.
If the aider and abettor’s mental state is more
culpable than that of the perpetrator, that person’s
guilt may be greater than that of the actual
perpetrator. Similarly, the aider and abettor’s guilt
may be less than the perpetrator’s if the aider and
abettor has a less culpable mental state.” (CALJIC
No. 3.00, italics added.)
46
As revised, the instruction makes clear that “aiders and
abettors are not always guilty of the same crime as the actual
perpetrators.” (People v. Bryant, Smith and Wheeler, supra, 60
Cal.4th at pp. 432-433, citing Use Note to CALJIC No. 3.00
(Spring 2010 rev.).) Defendant does not quote, refer to, or
challenge the pertinent language in the current version.
Defendant is not relieved of his forfeiture, as he does not
demonstrate or argue that the version read to the jury in this
case was an incorrect statement of law. (People v. Hudson, supra,38 Cal.4th at pp. 1011-1012.) Nor has he claimed that the
version read to the jury affected his substantial rights. Thus, we
have no basis to consider the issue pursuant to section 1259.
Regardless, the court did not fail to instruct the jury on
how to determine whether an aider and abettor should be found
guilty of deliberate and premeditated murder, as defendant
asserts. “‘It is fundamental that jurors are presumed to be
intelligent and capable of understanding and applying the court's
instructions.’ [Citation.] ‘“A defendant challenging an
instruction as being subject to erroneous interpretation by the
jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant.
[Citations.]”’ [Citation.] ‘“[T]he correctness of jury instructions is
to be determined from the entire charge of the court, not from a
consideration of parts of an instruction or from a particular
instruction.’”’” (Bryant, Smith, and Wheeler, supra, 60 Cal.4th at
p. 433.) Here, the jury was instructed that in order to find
defendant guilty of murder, it must determine his own mental
state. Other instructions made clear what mental state must be
proven beyond a reasonable doubt. The court informed the jury
that defendant was charged with murder and defined express
malice as the intent to kill (CALJIC Nos. 8.10 and 8.11). The
47
court defined first degree murder as willful, premeditated, and
deliberate, with a lengthy explanation of those terms (CALJIC
No. 8.20). The jury was instructed that to find defendant guilty
of murder, it must unanimously find defendant guilty of an
unlawful killing and must also unanimously agree as to whether
he is guilty of first or second degree murder (CALJIC No. 8.74).
With regard to attempted murder, the court made clear that to
find defendant guilty the jury must find that he intended to kill
(CALJIC No. 8.66). With regard to the allegation that attempted
murder was willful, deliberate, and premeditated, the jury was
instructed with CALJIC No. 8.67.
In sum, the trial court correctly and thoroughly instructed
the jury that to find defendant guilty of murder and attempted
murder as an aider and abettor, it must unanimously find that
defendant harbored his own intent to kill and that first degree
murder is deliberate and premeditated murder.
Defendant suggests that, because the instructions omitted
or failed to describe an element of the charged offense, in
violation of his constitutional right to a jury trial, prejudice from
the alleged errors must be analyzed under the Chapman test for
federal constitutional error to determine whether the error was
harmless beyond a reasonable doubt. (See Chapman, supra, 386
U.S. at p. 24.) We do not agree with either contention but would
find any error harmless under any standard.
Defendant argues that the murder could have been a “spur-
of-the-moment” shooting and that there was no evidence that
defendant ordered Childress to stop the car or ordered Allen to
get out and shoot the victims or that defendant and his
accomplices were “hunting to kill members of a rival gang.”
Defendant’s behavior with Love minutes before the
shooting provided compelling evidence that defendant and his
48
accomplices were in fact out “hunting to kill” rival gang members,
as they were in rival gang territory when defendant commented
on Love’s wearing a blue bandanna. The gang expert testified
that the BPS gang was associated with red, while the enemy Crip
gangs, used the color blue. Defendant, with a large black
revolver in his lap, told Love, “Bitch, I’ll kill you. Blood. I’ll kill
you.” The three drove away only when people began to move
around nearby. A reasonable inference from this evidence is that
Love was not shot because there were witnesses and that,
minutes later, more isolated victims were found. We conclude
beyond a reasonable doubt that defendant suffered no prejudice
from the instructions as given and that the result would have
been no different if defendant had requested additional or
clarifying instructions.
Gang limiting instruction
Defendant contends that the trial court erred by failing to
instruct sua sponte that gang evidence standing alone cannot
prove a defendant is an aider and abettor.
“[A]lthough a court should give a limiting instruction on
request, it has no sua sponte duty to give one.” (People v.
Hernandez, supra, 33 Cal.4th at p. 1051.) Defendant does not
claim to have requested such an instruction. The trial court gave
the standardized instruction limiting the jury’s use of gang
evidence.18 The trial court is not required to give duplicative
instructions. (People v. Bolden (2002) 29 Cal.4th 515, 558.)
18 As read to the jury, CALJIC No. 17.24.3 stated as follows:
“Evidence has been introduced for the purpose
of showing criminal street gang activities, and of
criminal acts by gang members, other than the
crimes for which the defendant is on trial. [¶] This
49
Jurors are presumed to have understood and followed the
trial court’s instructions. (People v. Gonzales, supra, 51 Cal.4th
at p. 940.) We thus presume that the jurors understood they
were permitted to consider the gang evidence for no purpose other
than stated in the instruction and that determining whether
defendant was an aider and abettor was not a stated purpose.
We therefore also presume that the jurors did not consider the
gang evidence to determine whether defendant was an aider and
abettor.
Defendant claims prejudice from the combination of the
“erroneous aiding and abetting instruction” and the omission of
the limiting instruction that he did not request. We have rejected
defendant’s claim that the aiding and abetting instruction was
erroneous. We also reject defendant’s claim of prejudice.
VI. The trial court’s comment regarding the cost of trial
Defendant claims that the trial court prejudicially erred in
telling the jury (without objection) that courtroom operation costs
were $30,000 per day and that a mistrial would cost a lot of
evidence, if believed, may not be considered by you to
prove the defendant is a person of bad character or
that he has a disposition to commit crimes. It may be
considered by you only for the limited purpose of
determining if it tends to show that the crime or
crimes charged were committed for the benefit of, at
the direction of, or in association with a criminal
street gang with the specific intent to promote, further,
or assist in any criminal conduct by gang members.
[¶] For the limited purpose for which you may
consider this evidence, you must weigh it in the same
manner as you do all other evidence in this case. [¶]
You are not permitted to consider such evidence for
any other purpose.” (Italics added.)
50
money. Defendant argues that the comment created pressure on
the jury to reach a verdict quickly and that such pressure was
prejudicial, because it must have been apparent to the jurors that
this trial was defendant’s retrial.
Defendant has taken the court’s comment out of context.
As a part of the admonishments made at the end of the day that
the jury was selected and sworn, the court told the jury not to
speak to anyone about the case, not to do research, and not to
form an opinion on any issue until after discussions with other
jurors during deliberations. The court elaborated on those
admonishments and also told the jurors not to be late each day of
trial and after each recess. The trial court then said to the jurors:
“So why are we so careful on this case? Why
can’t you talk to your cousin, the lawyer, or your
next-door neighbor, a police officer? The truth is you
cannot go to a dictionary. If you do not understand a
word, you have to ask me. You heard me say it many
times, that your verdict must be based solely and
only on the evidence that comes through the witness
stand, and the law that I give you, and nothing else.
That means you cannot go to Wikipedia, you cannot
Google anything about this case. You cannot
disseminate any information to all your Facebook
friends, because it’s a violation. How much a
violation? Costs $30,000 a day to run this courtroom.
That’s $30,000 a day of your money, taxpayer money.
If a juror does any kind of stupid misconduct, like
doing outside research, disseminate information and
because of that I have to declare a mistrial, that’s
$30,000 a day that goes right down the drain, and we
can’t afford it.”
The trial court concluded:
“You can write a book when this case is done.
But until then, please follow my directions explicitly.
51
When you leave, the bailiff in this court is going to
give you a phone number for this court. If you’re
going to be late, call me because then we have to tell
the other jurors that you’re going to be late so they
can get angry at you. [¶] Anyway, have a good
evening. See you tomorrow morning, 9:00 sharp. [¶]
Any questions you have, you can ask the bailiff.”
Relying on People v. Barraza (1979) 23 Cal.3d 675, 682-683
(Barraza), and People v. Gainer (1977) 19 Cal.3d 835, 852 and
footnote 16 (Gainer), defendant suggests that the trial court’s
comment was the equivalent of an “Allen charge.”19 In the
footnote in Gainer cited by defendant, the California Supreme
Court offered the following dictum: “A third common feature of
Allen-type instructions is a reference to the expense and
inconvenience of a retrial. While such language was absent from
the charge in this case, it is equally irrelevant to the issue of
defendant's guilt or innocence, and hence similarly
impermissible.” (Gainer, supra, at p. 852, fn. 16.) In later
decisions, the court has held that not all references to the costs of
trial are improper. (People v. Andrews (1989) 49 Cal.3d 200, 220;
accord, Bryant, Smith and Wheeler, supra, 60 Cal.4th at pp. 424-
425.)
Moreover, neither Gainer nor Barraza supports defendant’s
characterization of the trial court’s remarks in this case. The
Allen charge in Gainer was flawed because it was given to a
deadlocked jury, impermissibly admonished the minority jurors
to consider whatever the majority view was, and included the
remark that “‘the case must at some time be decided,’ with its
attendant implication that a mistrial will inevitably result in a
19 See generally, Gainer, supra, 19 Cal.3d at pages 843-844
for an explanation and history of the Allen charge.
52
retrial . . . .” (Gainer, supra, 19 Cal.3d at pp. 851-852.) In
Barraza, the challenged remarks were also made to a deadlocked
jury. (Barraza, supra, 23 Cal.3d at p. 685.) The court stated in
relevant part: “‘[T]he case is an important one, and its
presentation to you has involved expense to both sides. If you fail
to agree upon a verdict, the case will have to be tried before
another jury selected in the same manner and from the same
source as you were chosen.’” (Id. at p. 681.)
Here, the jury was never deadlocked, the comment came at
the very beginning of the trial, the comment did not suggest to
the jurors that they should consider the cost in their
deliberations, and the comment was merely part of the trial
court’s effort to stress the importance of obeying the court's
admonitions. Under such circumstances, “there is no reasonable
probability the statements could have improperly affected the
jury’s deliberations.” (People v. Andrews, supra, 49 Cal.3d at
p. 221; accord, People v. Bryant, Smith and Wheeler, supra, 60
Cal.4th at pp. 424-425.)
Moreover, with the instructions given just prior to
deliberations, the trial court read CALJIC No. 17.40, as follows:
“The People and defendant are entitled to the
individual opinion of each juror. [¶] Each of you
must consider the evidence for the purpose of
reaching a verdict, if you can do so. Each of you must
decide the case for yourself, but should do so only
after discussing the evidence and instructions with
the other jurors. [¶] Do not hesitate to change an
opinion if you are convinced it is wrong. However, do
not decide any question in a particular way because
the majority of the jurors or any of them favor that
decision. [¶] Do not decide any issue in this case by
the flip of a coin, or [by] any other chance
determination.”
53
We conclude that the trial court’s reference to costs was not
error, but if it had been error, giving CALJIC No. 17.40 rendered
any error harmless. (See People v. Valdez (2012) 55 Cal.4th 82,
162-164.)
VII. Unanimity instruction
Defendant contends that the trial court committed
reversible error by failing to provide a unanimity instruction
relating to the criminal threat charge. He argues that such an
instruction was required, because the prosecution presented
evidence of several threats directed at Love, some made by
defendant, others made by Allen and Childress.
A unanimity instruction is typically given where several
acts could have been charged as separate offenses. (People v.
Maury (2003) 30 Cal.4th 342, 422.) A criminal threat is the
communication of an intent to inflict death or great bodily injury
on another with the intent to cause the listener to believe death
or great bodily injury will be inflicted on the person or a member
of the person’s immediate family. (People v. Toledo (2001) 26
Cal.4th 221, 227-228, 233.)
Here, contrary to defendant’s suggestion otherwise, the
prosecutor did make an election. The prosecutor discussed the
criminal threats almost at the outset of her opening argument in
summation. She pointed out that defendant, while holding a gun
in his lap where Love could see it, mentioned the blue bandanna
Love wore and said, “Do you know where you’re at? Bitch, I’ll kill
you.” The prosecutor told the jury about defendant’s order to the
backseat passenger to get out, and that at some point the driver
said, “Bullets ain’t got no names . . . .”
“As a general rule, when violation of a criminal statute is
charged and the evidence establishes several acts, any one of
which could constitute the crime charged, either the state must
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select the particular act upon which it relied for the allegation of
the information, or the jury must be instructed that it must agree
unanimously upon which act to base a verdict of guilty.
[Citation.] There are, however, several exceptions to this rule.
For example, no unanimity instruction is required if the case falls
within the continuous-course-of-conduct exception, which arises
‘when the acts are so closely connected in time as to form part of
one transaction’ [citation] . . . [citation]. There also is no need for
a unanimity instruction if the defendant offers the same defense
or defenses to the various acts constituting the charged crime.”
(People v. Jennings (2010) 50 Cal.4th 616, 679.)
Relying on People v. Salvato (1991) 234 Cal.App.3d 872,
883, defendant argues that the exception for a continuous course
of conduct is inapplicable to criminal threats prohibited by
section 422. However, defendant does not argue that the same-
defense exception does not apply. Defendant’s one and only
defense to the criminal threat charge and all the other crimes
charged here was that he was misidentified and was not with
Allen and Childress when they and a third person committed the
crimes. There was thus no need for a unanimity instruction.
(People v. Jennings, supra, 50 Cal.4th at p. 679.) This is so
because if the jury believed that defendant was not present at the
crime scene and played no role whatsoever in any of the threats,
the result would have been an acquittal of all charges, and the
absence of a unanimity instruction could not result in the finding
of guilt as to one threat but not another. (See People v. Williams
(2013) 56 Cal.4th 630, 682.) Under such a circumstance a
unanimity instruction is unnecessary. (Ibid.)
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VIII. Cumulative prejudice
Defendant contends that reversal of all convictions is
required due to the cumulative prejudice from all the evidentiary
and instructional errors that he has established here.
Because “[w]e have either rejected on the merits
defendant’s claims of error or have found any assumed errors to
be nonprejudicial,” we must reject defendant’s claim of
cumulative prejudicial effect. (People v. Sapp (2003) 31 Cal.4th
240, 316.)
IX. Firearm enhancement attached to criminal threats
charge
Defendant contends that the amendment of the information
to add a firearm enhancement allegation with regard to count 5
(criminal threat) must be presumed to have done for retaliation
for having pursued a successful reversal of the prior conviction,
and thus amounted to vindictive prosecution.
On the first day of the retrial, prior to jury selection, the
trial court observed that a gun use allegation had been added to
count 5 in the amended information that deleted the
codefendants, filed approximately six months earlier. After the
court asked counsel to discuss the addition, the prosecution
moved to amend the information to add the allegation pursuant
section 12022.5, subdivision (a). The prosecutor explained to the
court that the information upon which the first trial proceeded
did not allege this enhancement. The defense objected to the late
timing of the amendment given the fact that this was a retrial.
The trial court granted the motion after noting that in the first
trial the jury found defendant guilty of the criminal threat charge
and there was evidence that defendant used a firearm.
Both the state and federal guarantee to due process
prohibits increased charges motivated by prosecutorial
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vindictiveness. (In re Bower (1985) 38 Cal.3d 865, 873, 876.)
“The constitutional protection against prosecutorial
vindictiveness is based on the fundamental notion that it ‘would
be patently unconstitutional’ to ‘chill the assertion of
constitutional rights by penalizing those who choose to exercise
them.’” (Id. at p. 873, quoting United States v. Jackson (1968)
390 U.S. 570, 581.) “[A]n inference of vindictive prosecution is
raised if, upon retrial after a successful appeal, the prosecution
increases the charges so that the defendant faces a sentence
potentially more severe than the sentence he or she faced at the
first trial.” (People v. Ledesma (2006) 39 Cal.4th 641, 731
(Ledesma).) Such an inference also arises under such
circumstances upon retrial after a successful petition for habeas
corpus. (See In re Bower, supra, at p. 876.)
However, to preserve this issue for appeal, a defendant
must object to the additional charge on this ground or bring a
pretrial motion to dismiss it. (People v. Edwards (1991) 54 Cal.3d
787, 827.) Here, defendant did not object to the amendment on
the ground of vindictive prosecution, but on “late timing,” nor did
he move to dismiss the allegation.20 He has thus forfeited the
issue.
Moreover, the contention is without merit. Relying on
Ledesma, supra, 39 Cal.4th at page 731, defendant contends that
a presumption of vindictive prosecution that arose due to the
addition of the firearm enhancement caused defendant to face a
sentence potentially more severe than he faced at the first trial.
20 As the amended information was filed six months prior to
the hearing and contained the added enhancement, defendant
was not foreclosed by timing from bringing a motion to dismiss
the enhancement.
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However, it is an inference, not a presumption which arises from
such a potential. (See ibid.) The two terms are not synonymous.
(See Evid. Code, § 600.) In any event, no such inference or
presumption arose here, because the added enhancement did not
increase defendant’s maximum potential sentence. (Short v.
Superior Court (2019) 42 Cal.App.5th 905, 914.)
Section 12022.5, subdivision (a) adds an enhancement of 3,
4, or 10 years to the determinate term. On retrial, as after the
first trial, count 5, criminal threat, was the only charge that
carried a determinate term. Without the enhancement in the
first trial, the trial court sentenced defendant on count 5 to a
term of seven years, consisting of the middle term of two years
plus five years for the gang enhancement.21 The amendment did
not affect defendant’s maximum potential sentence of LWOP for
the murder, plus 25 years to life for the firearm enhancement
alleged under section 12022.53, subdivisions (d) and (e)(1), plus
two consecutive life terms for the attempted murders, plus 25
years to life for the firearm enhancement alleged under section
12022.53, subdivisions (d) and (e)(1), for a total of LWOP, two life
terms, and 50 years to life.
Furthermore, as defendant acknowledges, there can be no
presumption of vindictive prosecution if it had been impossible to
proceed on the more serious charge in the original trial. (See
United States v. Goodwin (1982) 457 U.S. 368, 376, fn. 8;
Blackledge v. Perry (1974) 417 U.S. 21, 29, fn. 7.) Defendant
suggests that it was the prosecutor who caused the impossibility
here by dismissing the firearm enhancement originally alleged
prior to the retrial. Defendant does so by stating that “the
21 With the enhancement, defendant’s total determinate
sentence was 11 years, including four years for the enhancement.
58
prosecutor apparently believed that justice had been served by
the dismissal of the firearm use allegation in connection with the
criminal threats count until [defendant] prevailed on appeal.
Without more, the only inference from this fact is that the
prosecutions [sic] changed its mind because [defendant] prevailed
on appeal.” As respondent explains, however, defendant was held
to answer in the original proceedings after a preliminary hearing
on the criminal threats charge as well as the firearm
enhancement, but the court then granted a defense motion to
dismiss the enhancement allegation prior to trial. In reply,
defendant concedes respondent’s point. Thus, the prosecutor was
not able to proceed on the enhancement in the second trial, and
no inference or presumption of vindictive prosecution arose.
As respondent also points out, defendant received the same
maximum sentence after the retrial as he received in the first
trial; and respondent aptly compares it to the observation in
Ledesma that “‘[a]bsent proof of invidious or vindictive
prosecution, as a general matter a defendant who has been duly
convicted of a capital crime under a constitutional death penalty
statute may not be heard to complain on appeal of the
prosecutor’s exercise of discretion in charging him with special
circumstances and seeking the death penalty.’” (Ledesma, supra,
39 Cal.4th at p. 730.) As defendant did not raise an issue in the
trial court or here regarding the lawfulness of his eventual
sentence, we apply that comparison and conclude that defendant
cannot be heard to complain of an additional four years added to
his minimum sentence.
X. Fines and fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157,
1168, 1172 (Dueñas), defendant contends that the imposition of
statutory assessments and a fine without first determining that
59
he had the ability to pay them violated his right to due process
under the state and federal constitution. Defendant did not
object to the imposition of the assessments and fine, does not
claim that he requested a determination of his ability to pay, and
he has not cited to any evidence in the record that he will not be
able to make payments from his prison pay. (See generally
People v. Lowery (2020) 43 Cal.App.5th 1046, 1054-1061.) In
general, a failure to object to fines and fees in the trial court,
based on an inability to pay, forfeits the issue on appeal. (See
People v. Aguilar (2015) 60 Cal.4th 862, 864; People v. Avila
(2009) 46 Cal.4th 680, 729.) Defendant contends that he did not
forfeit the issue, because there is a conflict among the Courts of
Appeal, and because it is now before the California Supreme
Court, as the due process issue posed by Dueñas was unsettled at
the time of his sentencing. We agree that the appellate courts
have reached conflicting conclusions regarding whether Dueñas
was correctly decided, and the issue is currently before the
California Supreme Court in People v. Kopp (2019) 38
Cal.App.5th 47, review granted November 13, 2019, S257844.
(See People v. Petri (2020) 45 Cal.App.5th 82, 90, and cases cited
therein.) However, we do not agree that defendant is therefore
relieved from raising a Dueñas issue in the trial court. Dueñas
was published January 8, 2019, 10 months before defendant was
sentenced. Its due process analysis was well known by then and
defendant thus had ample notice to raise a Dueñas issue at
sentencing.
Regardless, we have previously disagreed with Dueñas’s
analysis and have concluded that Dueñas was wrongly decided.
(People v. Hicks (2019) 40 Cal.App.5th 320, 326, 329, review
granted Nov. 26, 2019, S258946.) In order to demonstrate a due
process violation a defendant must show that the “‘imposition of
60
these financial obligations . . . denied defendant access to the
courts’ [or] ‘. . . result[ed] in defendant’s incarceration.’” (People
v. Petri, supra, 45 Cal.App.5th at p. 92, quoting People v. Hicks,
supra, at p. 329; see also People v. Caceres (2019) 39 Cal.App.5th
917, 922-923, 928-929.) As defendant has not done so here, his
due process claim fails.
DISPOSITION
The judgment is affirmed.
________________________, J.
CHAVEZ
We concur:
________________________, P. J.
LUI
________________________, J.
ASHMANN-GERST
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