People v. Miller CA2/3 ( 2014 )

Filed 2/7/14 P. v. Miller CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B232167
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA112805)
v.
HERBERT CHARLES MILLER et al.,
Defendants and Appellants.
APPEAL from judgments of the Superior Court of Los Angeles County,
David Sotelo, Judge. Judgments are affirmed as modified.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and
Appellant Herbert Charles Miller.
Gail Harper, under appointment by the Court of Appeal, for Defendant and
Appellant Javone Lamar Brown.
Richard D. Miggins, under appointment by the Court of Appeal, for Defendant
and Appellant Jeffrey McLeod.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Mark E.
Weber, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendants and appellants, Herbert Charles Miller, Javone Lamar Brown and
Jeffrey McLeod appeal their convictions for two counts of first degree murder with
multiple-murder special circumstance findings, and firearm use, criminal street gang, and
prior serious felony conviction enhancements (Pen. Code, §§ 187, 190.2, subd. (a)(3),
12022.53, 186.22,subd. (b), 667, subds. (a) – (i)).1 Defendants were sentenced to state
prison for life without the possibility of parole.
The judgments are affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
1. Prosecution evidence.
a. The Nutty Blocc Crip gang.
The Nutty Blocc Crips2 are one of the oldest street gangs in Compton. They
originally referred to themselves as the Grandee Boys in reference to a local housing
project known as “the Grandees.” The Grandee Boys later joined the Crip gang
organization under the auspices of Stanley “Tookie” Williams, and became known as the
165th or 166th Blocc Crips. They later changed their name to the “Nutty Blocc” Crip
gang to signify they were the craziest gang in Compton.
The Nutty Blocc Crip gang consists of different sets or cliques based largely on
age. At the top, and the most powerful, are Original Gangsters. Next in line are Original
Baby Gangsters, followed by Baby Gangsters, Original Tiny Gangsters and then Tiny
Gangsters. Defendants Herbert Charles Miller (“Hen” or “Baby Hen”), Javone Lamar
Brown (“Bam”) and Jeffrey McLeod (“J-Smash”) and belonged to the Nutty Blocc Crips.
1 All further references are to the Penal Code unless otherwise specified.
2 Crip gang members spell the word “Block” as “Blocc” because in gang culture
“[w]riting CK means Crip Killer.”
2
Brown and Miller were Baby Gangsters; McLeod was either an Original Tiny Gangster
or a Tiny Gangster.
b. The shooting of Nakia Wheeler and Michael Leggette.
Nakia Wheeler lived at 1027 South Exmoor Avenue in Compton. He had grown
up in the Exmoor neighborhood and people knew he was a marijuana dealer. Although
Wheeler was not a gang member, he had never had any issues with the Nutty Blocc Crips
before he was killed. Michael Leggette was Wheeler’s friend. Los Angeles County
Sheriff’s Detective John Duncan, who worked in the gang unit, had nine years of
experience dealing with the Nutty Blocc Crip gang. He had never encountered either
Wheeler or Leggette, and he had no reason to believe Wheeler was a Nutty Blocc Crip
gang member.
In the late afternoon on November 9, 2005, several teenage boys were standing on
the 1100 block of South Exmoor Avenue, which was within Nutty Blocc Crip territory.
A black Pontiac Grand Am with tinted rear windows drove slowly up and down the
street, and then pulled up next to the teenagers. They could see two African American
men in the car, the driver and a front seat passenger, but because of the tinted windows
they could not see if anyone was in the back. The teenagers could not identify either the
driver or the passenger with any certainty. The passenger asked if the teenagers were
affiliated with a tagging crew. When they said no, someone in the car shouted “Nutty
Blocc” or “This is Nutty Blocc Compton Crip,” and the Pontiac drove off.
A few hours later, around 8:15 p.m., Nakia Wheeler pulled into his driveway in a
red Ford Explorer. Michael Leggette was either in the vehicle with Wheeler or waiting
for him in front of Wheeler’s house.
A neighbor saw silhouettes on Wheeler’s driveway and heard four or five people,
including Wheeler, argue for two or three minutes. It sounded like “an angry
confrontation.” The neighbor then heard a gunshot, the sounds of someone running, and
then more gunshots. The first gunshot was not as loud as the ones that followed. Other
neighbors who heard the gunfire also testified the initial shot seemed to come from a less
powerful weapon than the remaining shots.
3
A neighbor who lived on the 1100 block of Exmoor saw a dark Pontiac or
Oldsmobile drive down his street around 5:00 or 6:00 p.m. Later that evening, the
neighbor was inside his home when he heard gunshots. As he went to close his front
door, he saw two people firing weapons while standing by this same car. The gunmen
were near Wheeler’s house. The neighbor saw Leggette running and the car drive away
southbound on Exmoor after the shooting. This neighbor’s brother also saw two people
outside the car firing weapons. One of the teenagers who had seen the Pontiac Grand Am
a few hours earlier saw the same car drive southbound on Exmoor right after the
shootings.
Leggette was found lying unconscious on the front lawn of 1035 Exmoor. He died
from a gunshot wound to the back. Wheeler was found face down on the ground in the
back yard of 1026 Exmoor. He had been shot in the back, arm, and elbow. Wheeler, too,
died from his wounds.
Wheeler’s pants had been pulled down to mid-thigh. Two $5 bills and one $1 bill
were found inside his pants. A single $5 bill was found on the front lawn of Wheeler’s
house. Wheeler’s SUV was sitting in his driveway with the doors open and the keys in
the ignition. The SUV reeked of marijuana, but no sizable amount of the drug was found
inside the vehicle. No significant amount of money was found in or near the vehicle.
Five spent .45 caliber cartridge cases were found outside Wheeler’s home, and two
spent 7.62 by 39 millimeter rifle cartridge cases were found in the street. Ballistics tests
showed two guns had been fired at the scene: a .45 caliber semiautomatic handgun and a
semiautomatic rifle. A Ruger Mini 30 rifle is one of the weapons that typically fires a
7.62 by 39 millimeter bullet.
D.P. was about two blocks east of Exmoor when she heard the gunshots.
Within minutes after the gunfire ended, defendants Brown and McLeod, along with an
unidentified third man, ran past D.P. toward the Grandees housing project.
This happened so soon after the gunfire that D.P. thought Brown and McLeod were the
ones being shot at.
4
c. In the aftermath of the shootings.
The morning after the killings, D.P. overheard Brown and McLeod at the
Grandees laughing and bragging to other Nutty Blocc Crip members about how “they hit
a lick.” D.P. testified a “lick” is a robbery. D.P. told police that Brown and McLeod said
they had obtained a lot of money by robbing Wheeler.
D.P. was in the habit of buying marijuana from Wheeler on a daily basis. Wheeler
sold a “good, light green stress weed” that came in “Chronic bags, the ones with [a] green
Chronic symbol on it.” A few days after the killings, Brown began selling marijuana just
like the kind Wheeler used to sell D.P.3 Before Wheeler was killed, Brown had not sold
marijuana.
D.H. was born in Compton and became a Nutty Blocc Crip when he was 12 years
old. He and McLeod had been friends for years. D.H. also knew Miller. D.H. had
seen Miller with a black AK-47 rifle before the killings. Miller described the model as
a “30-30.” D.H. had once borrowed this gun from Miller. D.H. last saw this rifle in
Miller’s possession a few weeks before Leggette and Wheeler were killed. D.H. also saw
a .45-caliber handgun in Brown’s possession around the time Leggette and Wheeler were
killed. The morning after the killings, McLeod told D.H. that he, Miller and Brown had
robbed and killed Wheeler.
M.H.’s family began living in the Grandees neighborhood when she was 11 or
12 years old. Miller moved in next door. When M.H. was 14 years old, Miller began
forcing her to have sex with him. He subsequently kidnapped her and forced her to have
sex with other men who paid Miller for her services. Miller also physically abused M.H.
Their relationship ended in December 2005 when the police rescued her from a
Bellflower motel. During October-November 2005, M.H. saw Miller in possession of a
handgun. He also kept guns in the trunk of his car and he would switch guns with
3 D.P. testified: “It was the same Chronic on the front [of the bag], fat sack and the
same ingredients of the weed, like, the crunchy green.”
5
McLeod. A day or two after the killings, Miller instructed M.H. to tell Wheeler’s mother
that M.H. had seen “some Mexicans rob and shoot” her son. When M.H. refused, Miller
got angry. A few minutes later, Brown told her “not to go over and get involved.”
In 2005, Miller owned a black 1999 Pontiac Grand Am with tinted rear windows.
No one else in the neighborhood owned a car that looked like his car. Three days after
the killings he had the car painted gold. In December 2005, Detective Cochran searched
Miller’s car, which had been impounded. In the trunk he found two boxes of ammunition
and a police scanner. The ammunition was not the same caliber as any of the spent
cartridges found at the crime scene.
S.T. was the girlfriend of a Nutty Blocc Crip gang member who was close to
Brown. The boyfriend and Brown shared an AK-47. After the boyfriend was murdered
in August 2005, Brown came to S.T.’s house every day to check on her and her children.
S.T. herself became an active Nutty Blocc Crip member in early 2006. She committed a
home invasion and 10 snatch-and-grab robberies with other Nutty Blocc Crip members.
Brown committed some of these robberies with her. In March 2006, she and Brown
began a sexual relationship that lasted until Brown was arrested and went to jail in
April 2006.
In January 2006, Brown informed the Department of Corrections he was living in
Long Beach with S.T., whom he pretended was his sister. Brown told S.T. to make sure
her house was “clean” because it “may be getting searched for a crime that they had
committed.” Brown said he, McLeod and someone named J-Capone had shot and killed
two people on Exmoor. Brown said he had used an AK-47 weapon to shoot one victim
and McLeod had shot the other. Brown said they killed the victims for breaking into
people’s houses.
In September 2009, D.H. was transported from jail to the Compton courthouse in
order to testify at defendants’ preliminary hearing. The defendants were put on the same
bus and, during the ride, Miller told D.H. not to testify because “you know what happens
to snitches.” Miller also spat on D.H.
6
While S.T. was waiting to testify in this case, Miller wrote letters urging her not to
take the oath so the prosecutor could not use her police statements. Miller also gave her
instructions on how to testify and said he believed she had already fulfilled her agreement
with the District Attorney’s Office about testifying. S.T. could tell the letters came from
Miller because they contained details only he would know.
A few days before trial was originally scheduled to start, Miller began calling
M.H. and leaving her unwanted voicemail messages. M.H. told Detective Cochran she
thought Miller was possibly trying to dissuade her from testifying.4
d. Expert testimony.
Sheriff’s Sergeant Frederick Reynolds testified as a gang expert. Committing
violent crimes for a gang is referred to by gang members as “putting in work.” A gang
member typically commits crimes with other gang members. This gives the first gang
member reassurance he will have support in committing the crime, and that he will have
someone who can attest to fellow gang members he put in work for the gang. Gangs
obtain money by committing robberies and selling drugs. A gang would want to control
the sale of drugs within its territory.
Gaining other gang members’ respect is important in gang culture. Committing an
act of violence is one way to gain respect. The more violent a gang member is, the more
respect he gains. A gang member who cooperates with the authorities risks being killed.
Detective Duncan testified as an expert on the Nutty Blocc Crips, whose primary
activities included drug trafficking, robberies, shootings and murders. One reason for a
gang to claim territory is in order to control whatever crime occurs within that area.
A gang member’s reputation is based on putting in work. Advising fellow gang members
about the work one has done is a way to gain status. A Nutty Blocc Crip who lied about
having put in work would risk a punishment ranging from being beaten to being killed.
4 These recorded messages included one in which Miller is heard yelling, “[M.H.]
man – what the fuck is the deal man . . . . [W]hats [sic] the deal – like we just have a lot
to talk about . . . [Y]ou got a lot of little shit goin.’ ”
7
As a result, gang members generally tell the truth to fellow gang members and try to
accurately account for the crimes they have committed. Duncan opined the Leggette-
Wheeler killings had been committed to benefit the Nutty Blocc Crip gang. Killing a
drug dealer who was operating within Nutty Blocc Crip territory without the gang’s
permission would show people that this behavior would not be tolerated. It also would
give the perpetrators something to brag about.
2. Defense evidence.
a. Brown’s defense.
Defense investigator Malcolm Richards determined D.P. had been standing about
95 feet from Brown and McLeod when she purportedly overhead them talking about the
robbery.
Detective Duncan signed a statement in May 2006 declaring: “Confidential
informants have been used in this case, but at this point the true motive for that
cooperation is uncertain,” and “Other known admitted gang members have admitted in
the past certain facts in corroborated [sic] information obtained by investigators,” but
Duncan was “unaware of any of these individuals providing 100 percent truthful
information.” He also declared, “The motive for in-custody gang members . . . to provide
information is obvious[,] they are cooperating for their own preservation.”
b. McLeod’s defense.
McLeod did not present any witnesses.
c. Miller’s defense.
(1) Miller’s alibi witnesses.
Miller presented an alibi defense, asserting that at the time Leggette and Wheeler
were shot in Compton, he was receiving medical treatment in Lancaster.
Medical records from Lancaster Community Hospital (LCH) showed Miller had
been treated for a gunshot wound in July 2003.
On November 9, 2005, Jacqueline Lord was working as an emergency-room nurse
at LCH. At 9:21 p.m. that night, she conducted a triage assessment for a man
complaining of abdominal pain. This man gave his name as Herbert Miller, but Lord
8
testified she did not recognize defendant Miller as the man she treated that night.
On the assessment form, Lord recorded that the patient was 5 feet 6 inches tall and
weighed 165 pounds. Miller, however, was 6 feet 2 inches and weighed about 200
pounds. The patient told Lord he had not had any prior surgeries and he did not mention
having sustained a prior abdominal gunshot wound. Sometime before 1:24 a.m., the
patient left the emergency room without having been seen by a doctor.
An LCH registration form had been submitted for a “Herbert Miller” at 9:55 p.m.
on November 9, 2005. Handwriting on the form declared it had been filled out at
8:00 p.m. It can take 30 minutes or more to check in at the emergency room, depending
on how busy the staff is. A blank LCH triage registration form could be obtained and
filled out at any time prior to being submitted to the emergency room.
Miller’s mother, Earline, lived in Lancaster. On November 9, 2005, around 6:00
or 6:30 p.m., Miller arrived at her home in pain and holding his stomach. Earline drove
him to LCH in his black Grand Am. After waiting in the emergency room for a few
hours she drove home, leaving Miller at the hospital. Earline then returned to LCH about
10:30 p.m. and brought Miller back to her house, where he spent the night.
Kurt Kuhn and Barbara Torres were handwriting experts. Kuhn was privately
employed and Torres worked for the Sheriff’s Department. They both examined the
November 9, 2005, LCH emergency room forms. Kuhn opined it was highly probable,
although not conclusive, that Miller had filled out one portion of the LCH registration
form. Torres opined there was a strong likelihood Miller had filled out a hand-printed
portion of the LCH registration form. However, neither Kuhn nor Torres could say when
these forms had been filled out.
(2) Miller’s trial testimony.
Miller testified he was born in Compton. When he was 15 or 16 his family moved
to Nestor Avenue, about eight blocks from Exmoor. He joined the Nutty Blocc Crips in
middle school, but did not participate in gang activities. Although Miller had been a
Nutty Blocc Crip for 17 or 18 years, in all that time he had never put in any work for the
gang.
9
Miller testified he stopped associating with the gang in June 2005 because he
“went to church” and “wanted to be . . . social for God.” In November 2005, when the
killings occurred, he was not associating with any Nutty Blocc Crip gang members
because his life “was already . . . given over to Christ.” He got the large Nutty Blocc
Crip tattoo on his chest in 2008 because of his “love for that neighborhood,” not because
he was identifying himself as a member of the gang.
Miller knew Brown was in the Nutty Blocc Crips. He and Brown were on bad
terms and they stayed away from each other. Miller did not know McLeod personally,
just from around the neighborhood. Miller had known Wheeler since grade school and
they remained friends. Wheeler was accepted by Nutty Blocc Crip gang members and he
socialized with them at picnics and parties.
On the day Leggette and Wheeler were killed, Miller dropped his stepchildren off
at school in the morning and then drove to Long Beach Community College, where he
stayed until 5:00 p.m. From Long Beach he drove to Lancaster, where his daughter lived
with her mother. But Miller was not supposed to visit unannounced, so he went to his
parents’ house instead. When he began having abdominal pains, his mother drove him to
LCH. At about 8:00 p.m., he filled out various hospital forms. He met with nurse Lord
and told her he had stomach pains, although he really had herpes. He did not tell Lord
about the herpes because he wanted to talk to a doctor.5 He lied when he told Lord he
had not had prior surgeries because it was beside the point; he just wanted attention for
his abdominal pains.
Miller waited until midnight without seeing a doctor and then left the hospital
because his pain had subsided. He called his mother, who picked him up and brought
him back to her house where he spent the night. He left the next morning at 6:00 a.m.
and returned to his apartment in Compton. His girlfriend was there when he arrived.
5 Miller testified: “I didn’t want her to know what it was. I was in a white hospital.
I didn’t want people to know my business.”
10
Later that day, Miller learned Leggette and Wheeler had been killed the night
before. When he heard people were saying his car had been used in the killings, he was
concerned because he knew that couldn’t be true. He was also concerned that his
girlfriend and her children, who lived with him, might be in danger because of the
rumors.
In November 2005, Miller owned a black, two-door 1999 Pontiac Grand Am.
He did not know of anyone else in the neighborhood who had a car like his at that time.
He had the car painted on November 12 because of the rumors connecting it to the
Leggette-Wheeler killings.
Miller wanted Wheeler’s mother to know he had not killed her son, but people
said it was not a good idea for him to approach her. He denied having instructed M.H. to
tell Wheeler’s mother that some Mexicans had killed her son. Rather, Miller was trying
to get M.H.’s opinion about whether he should approach Wheeler’s mother, and it was
M.H.’s own idea to contact Wheeler’s mother herself.
Miller testified the ammunition and police scanner Detective Cochran found in his
car did not belong to him. He denied having accosted D.H. on the bus ride to the
preliminary hearing; he did not speak to D.H., threaten him or spit on him, and nobody
else did either. He wrote one letter to S.T. because it was the five-year anniversary of her
boyfriend’s death and Miller had been thinking about him. Miller never contacted S.T.
about this case and no one did so on his behalf.
Miller denied having had sex with M.H. The photographs of her found on the
computer in the Bellflower motel did not belong to him. In truth, M.H.’s father had been
paying her for sex and that’s why she did not want to go home.
3. Prosecution’s rebuttal evidence.
Detective Cochran interviewed Miller twice and both interviews were recorded.
Cochran was accompanied by his partner, who was a woman. Miller told them his
medical reason for going to the hospital involved his penis. He was not shy about
discussing this and even offered to show them his penis.
11
Sheriff’s Lieutenant Elizer Vega stopped Miller for a traffic violation on
December 6, 2005. Miller was driving a gold Grand Am. Vega drove Miller to a motel
in Bellflower where Vega found a 14-year-old girl in one of the rooms. There was a box
of condoms in the room. As the officers were escorting the girl from the motel, Miller
yelled: “Don’t say nothing.”
Sheriff’s Sergeant David Brossoit oversaw the day-to-day movement of
prisoners to and from jails, prisons and courts. He testified Deputies Uriostegui and
Voorhees transported D.H. and the defendants from jail to the Compton courthouse on
September 15, 2009. D.H. was the first prisoner to get on the bus; Brown boarded a
minute later, and then McLeod and Miller five minutes after Brown.
4. Miller’s surrebuttal evidence.
Sheriff’s Deputy Kevin Uriostegui drove the bus that transported D.H. and the
defendants from jail to the preliminary hearing. He did not recall any unusual incidents
that day, and no threats or assaults had been reported to him. However, it would have
been possible for a general-population prisoner to spit on a prisoner sitting in one of the
keep-away cages on the bus.
Sheriff’s Deputy Noel Voorhees was the security officer on the bus that
transported D.H. and defendants from jail to the preliminary hearing. Voorhees did not
recall any unusual incidents that day. No one reported to him about having been
threatened or spat on. However, it can be noisy on the bus and the deputies have no way
of knowing everything that goes on.
Miller testified he got the large “Nutty Blocc Crip” tattoo on his chest in 2010, less
than two months before the trial. On cross-examination, he denied having testified earlier
that he got the tattoo two years ago in 2008.
Miller testified he signed his name differently at different times because no one
had ever told him it was important to be consistent.
12
CONTENTIONS
1. There was insufficient evidence to sustain defendants’ murder convictions.
2. There was insufficient evidence to support the multiple-murder special
circumstance finding against Miller.
3. Brown was the victim of vindictive prosecution.
4. The trial court erred by not bifurcating the gang enhancement allegations.
5. The trial court committed misconduct by making improper comments during
voir dire.
6. The trial court erred by admitting defendants’ extra-judicial statements.
7. The trial court erred by admitting consciousness of guilt evidence relating to
Wheeler’s mother.
8. The trial court erred by admitting evidence about Miller’s relationship
with M.H.
9. The trial court erred by admitting evidence Miller tried to intimidate a
prosecution witness.
10. The trial court erred by excluding evidence a prosecution witness had
committed an unrelated murder.
, 11. The trial court erred by not compelling a prosecution witness to identify
another potential witness.
12. The trial court erred by allowing a prosecution witness to testify while
wearing sunglasses.
13. The trial court erred by admitting evidence about the possession of certain
guns and ammunition.
14. There was prosecutorial misconduct.
15. Defendants were entitled to a voluntary manslaughter instruction.
16. There was cumulative error.
17. Miller was entitled to have counsel reappointed after his post-conviction
decision to represent himself.
18. There were various sentencing errors.
13
DISCUSSION
1. There was sufficient evidence to sustain defendants’ murder convictions.
Defendants contend their murder convictions must be reversed for lack of
sufficient evidence. They contend there was insufficient evidence to prove their
involvement in the killings or, if they had been involved, that they had committed first
degree murder. These claims are meritless.
a. Legal principles.
“In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence – that is, evidence that is reasonable, credible, and of
solid value – such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] The federal standard of review is to the same effect:
Under principles of federal due process, review for sufficiency of evidence entails not the
determination whether the reviewing court itself believes the evidence at trial establishes
guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. [Citation.] The standard of
review is the same in cases in which the prosecution relies mainly on circumstantial
evidence. [Citation.] ‘ “Although it is the duty of the jury to acquit a defendant if it finds
that circumstantial evidence is susceptible of two interpretations, one of which suggests
guilt and the other innocence [citations], it is the jury, not the appellate court[,] which
must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment.” ’ [Citations.]” ’ [Citation.]” (People v.
Rodriguez (1999) 20 Cal.4th 1, 11.)
The reviewing court is to presume the existence of every fact the trier of fact could
reasonably deduce from the evidence. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.)
Even if the reviewing court believes the circumstantial evidence might be reasonably
14
reconciled with the defendant’s innocence, this alone does not warrant interference with
the trier of fact’s verdict. (People v. Towler (1982) 31 Cal.3d 105, 118.) It does not
matter that contrary inferences could have been reasonably derived from the evidence.
As our Supreme Court said in People v. Rodriguez, supra, 20 Cal.4th 1, while reversing
an insufficient evidence finding because the reviewing court had rejected contrary, but
equally logical, inferences the jury might have drawn: “The [Court of Appeal] majority’s
reasoning . . . amounted to nothing more than a different weighing of the evidence, one
the jury might well have considered and rejected. The Attorney General’s inferences
from the evidence were no more inherently speculative than the majority’s; consequently,
the majority erred in substituting its own assessment of the evidence for that of the jury.”
(Id. at p. 12, italics added.)
“A person aids and abets the commission of a crime when he or she, (i) with
knowledge of the unlawful purpose of the perpetrator, (ii) and with the intent or purpose
of committing, facilitating or encouraging commission of the crime, (iii) by act or advice,
aids, promotes, encourages or instigates the commission of the crime.” (People v.
Cooper (1991) 53 Cal.3d 1158, 1164.) “[I]n general neither presence at the scene of a
crime nor knowledge of, but failure to prevent it, is sufficient to establish aiding and
abetting its commission. [Citations.] However, ‘[a]mong the factors which may be
considered in making the determination of aiding and abetting are: presence at the scene
of the crime, companionship, and conduct before and after the offense.’ [Citation.]”
(People v. Campbell (1994) 25 Cal.App.4th 402, 409.)
b. Discussion.
(1) Evidence of defendants’ involvement in the killings.
Several incriminating admissions showed the defendants had been involved in the
killings. The day after the killings, D.P. overheard McLeod and Brown laughing and
bragging about having robbed Wheeler. That same day, McLeod told D.H. that all three
defendants had robbed and killed Wheeler. Within a few months of the killings, Brown
told S.T. that he and McLeod had shot and killed two people on Exmoor and that he had
used an AK-47 to shoot one of the victims.
15
The evidence tended to show Miller had been driving the car. He owned a black
Pontiac Grand Am with tinted rear windows and he acknowledged nobody else in the
neighborhood owned a car like his in November 2005. A black Pontiac Grand Am with
tinted rear windows was seen going down Exmoor, where Wheeler lived, a few hours
before the killings. Someone in the car called out Nutty Blocc Crip gang slogans and
then the car drove off. The car returned to Exmoor a few hours later and the two gunmen
stood by the car while shooting the victims. The car drove away immediately after the
shooting stopped. A day or two after the killings, Miller instructed M.H. to tell
Wheeler’s mother her son had been killed by “some Mexicans.” Three days after the
killings, Miller had his car painted gold.
The evidence tended to show Brown and McLeod had been the gunmen. Just after
the gunfire stopped, they were seen running from the shooting scene toward the Nutty
Blocc Crips’ hangout in the Grandees housing project. Their flight occurred so close in
time to the gunfire that a witness thought Brown and McLeod were the ones being shot
at. Within days of the killings Brown, who had not previously sold marijuana, began
selling a product that was similar to, and had the same packaging as, the marijuana
Wheeler had been selling.
Defendants either possessed or had access to the kinds of guns used in the killings.
One had been a .45 caliber handgun and the other was a semiautomatic rifle, most likely a
Ruger Mini 30. Miller possessed a semiautomatic rifle he described as a “30-30,” and
D.H. had seen that rifle in Miller’s possession a few weeks before the killings. Brown
had access to an AK-47 semiautomatic rifle, and he told S.T. he had used an AK-47 rifle
to kill one of the victims. Brown possessed a .45 caliber handgun and D.H. saw this
weapon in Brown’s possession around the time of the killings.
There was evidence Miller wrote to S.T., trying to convince her not to testify
against him. Miller began calling M.H. just before the trial was scheduled to start and
left messages she interpreted as urging her not to testify. There was evidence Miller and
his mother gave false testimony at trial in order to provide him with an alibi. The
evidence tended to show Miller had prepared this false alibi in anticipation of carrying
16
out the killings by filling out portions of the LCH emergency room forms prior to
November 9, 2005, so he would have an alibi for when he was driving Brown and
McLeod to the crime scene.
In sum, there was ample evidence the defendants had been involved in the killings.
(2) Evidence of first degree murder.
The trial court instructed the jury on two theories of first degree murder,
premeditated murder and robbery felony murder, as well as on the principles of aiding
and abetting liability. There was sufficient evidence to support either theory and the
jurors did not have to agree on which one was correct. “[W]here the evidence shows
only a single discrete crime but leaves room for disagreement as to exactly how that
crime was committed or what the defendant’s precise role was, the jury need not
unanimously agree on the basis or, as the cases often put it, the ‘theory’ whereby the
defendant is guilty. [Citation.]” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) If the
jury believed the defendants had been motivated by a desire to punish the victims for
breaking into people’s homes, or a desire to punish Wheeler’s drug dealing, then it was
reasonable to rely on a premeditation and deliberation theory. If the jury believed
defendants had been motivated by a desire to commit robbery, then it was reasonable to
rely on a felony murder theory.
(a) Evidence of premeditation and deliberation.
The various types of premeditation and deliberation evidence have been described
as follows: “The type of evidence which this court has found sufficient to sustain a
finding of premeditation and deliberation falls into three basic categories: (1) facts about
how and what defendant did prior to the actual killing which show that the defendant was
engaged in activity directed toward, and explicable as intended to result in, the killing –
what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior
relationship and/or conduct with the victim from which the jury could reasonably infer a
‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or
(3), would in turn support an inference that the killing was the result of ‘a pre-existing
reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere
17
unconsidered or rash impulse hastily executed’ [Citation.]; (3) facts about the nature of
the killing from which the jury could infer that the manner of killing was so particular
and exacting that the defendant must have intentionally killed according to a
‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the
jury can reasonably infer from facts of type (1) or (2). [¶] Analysis of the cases will
show that this court sustains verdicts of first degree murder typically when there is
evidence of all three types and otherwise requires at least extremely strong evidence
of (1) or evidence of (2) in conjunction with either (1) or (3).” (People v. Anderson
(1968) 70 Cal.2d 15, 26-27.)
The evidence showed several motives for the killings. Detective Duncan testified
one reason gangs claim territory is to control whatever crime occurs in that area. The
trial evidence suggested the defendants killed Leggette and Wheeler to punish them for
breaking into people’s homes. In addition, Sergeant Reynolds’s testimony that a gang
would want to control the sale of drugs within its territory suggested the defendants could
have been motivated to kill Wheeler for selling drugs in their territory. In this scenario,
Leggette could have been killed either because the defendants thought he was selling
drugs with Wheeler, or to get rid of an eyewitness to Wheeler’s killing.
There was evidence of planning activity because the defendants brought loaded
guns to the crime scene. (See, e.g., People v. Miranda (1987) 44 Cal.3d 57, 87,
disapproved on other grounds by People v. Marshall (1990) 50 Cal.3d 907[“that defendant brought his loaded gun into the store and shortly thereafter used it to kill
an unarmed victim reasonably suggests that defendant considered the possibility of
murder in advance”]; People v. Alcala (1984) 36 Cal.3d 604, 626, superseded by statute
on other grounds as stated in People v. Falsetta (1999) 21 Cal.4th 903, 911 [“when one
. . . brings along a deadly weapon which he subsequently employs, it is reasonable to
infer that he considered the possibility of homicide from the outset”].)
There was also manner-of-killing evidence tending to show premeditation and
deliberation because this was essentially a drive-by shooting in which the unarmed
victims were shot in the back. (See People v. Silva (2001) 25 Cal.4th 345, 369 [“The
18
manner of killing – multiple shotgun wounds inflicted on an unarmed and defenseless
victim who posed no threat to defendant – is entirely consistent with a premeditated and
deliberate murder.”]; People v. Vorise (1999) 72 Cal.App.4th 312, 318-319
[premeditation and deliberation established where evidence showed defendant calmly
shot incapacitated victim in chest twice at close range].)
(b) Evidence of felony murder.
There was also substantial evidence defendants killed Leggette and Wheeler in the
course of robbing Wheeler. McLeod and Brown openly bragged to fellow gang members
that they had robbed Wheeler. Evidence at the crime scene tended to show Wheeler had
been robbed of both money and marijuana. Despite his occupation as a drug dealer, no
significant amount of money was found on him although a single $5 bill was found on the
lawn in front of his house. This raised a reasonable inference that defendants robbed
Wheeler and accidentally dropped a $5 bill in the process. Although Wheeler’s SUV
reeked of marijuana, no sizable amount of the drug was found either inside the vehicle or
in the possession of either Leggette or Wheeler. Brown had not sold marijuana before the
killings, but a few days later he began selling marijuana having a similar quality and
packaging to the marijuana Wheeler had been selling. Even if Leggette were just an
inconvenient bystander-witness, he too was a felony murder victim. (See, e.g., People v.
Young (1992) 11 Cal.App.4th 1299, 1308 [felony murder properly applied where
bystander killed during defendant’s reckless high-speed flight in stolen vehicle after
carjacking].)
(3) Defendants’ counter-arguments are meritless.
Brown and McLeod complain the prosecution witnesses consisted of unreliable
gang members, drug users and convicted felons, and they claim that even the trial court
concluded these witnesses lacked credibility. Brown asserts the “trial court admitted the
snitch witnesses were ‘thoroughly impeached,’ meaning they were liars who could not be
believed.” But this assertion misrepresents the record by taking the trial court’s remarks
out of context. The court’s remarks occurred in the course of denying defendants’
motion for a new trial, when the trial court pointed out the defendants had tried to
19
impeach the prosecution witnesses but that the jury had obviously rejected their attempt:
“[U]ltimately the conviction in this case substantially is based on the testimony of . . .
three witnesses who are former . . . members of the same criminal street gang who were
privy to the world and the culture [of] each defendant . . . . Each of whom [was]
thoroughly impeached and scrutinized on behalf of the accused in the presence of the
jury. [¶] The motion for new trial on that basis is denied.” (Italics added.)
Brown argues D.P. lied about buying marijuana from him after Wheeler died:
“The problem is that [D.P.] changed her testimony on cross to an admission that she had
not bought marijuana from Brown or seen anyone buying marijuana from Brown, but that
her unnamed ‘roommate’ had purchased marijuana from Brown and brought it back to
her. This is not ‘evidence’ – this is unreliable hearsay lacking any foundation.” There
was, however, no objection to the implied hearsay in D.P.’s testimony, i.e., that her
roommate purchased the marijuana from Brown and then told D.P. where she got it, and
unobjected-to hearsay testimony constitutes evidence. (See Evid. Code, § 353; People v.
Rodriquez (1969) 274 Cal.App.2d 770, 776 [“hearsay evidence is competent and relevant
in the absence of a specific hearsay objection”]; McVey v. McVey (1955) 132 Cal.App.2d
120, 123 [unobjected-to hearsay statements “became competent evidence”].) In any
event, as discussed post, D.P. later clarified her testimony and said she had indeed
purchased marijuana directly from Brown.
The evidence was sufficient to support defendants’ first degree murder
convictions.
2. Sufficient evidence of Miller’s multiple-murder special circumstance finding.
Miller contends his multiple-murder special-circumstance finding must be
reversed for insufficient evidence. This claim is meritless.
When a defendant challenges the sufficiency of the evidence supporting a jury’s
special-circumstance finding, the standard of review is the same as when a reviewing
court examines the sufficiency of the evidence supporting a conviction. (People v.
Booker (2011) 51 Cal.4th 141, 172.)
20
Section 190.2, subdivision (a)(3), provides for a sentence of life without the
possibility of parole when the defendant is convicted in one proceeding of having
committed a first degree murder and at least one other first or second degree murder.
Section 190.2, subdivision (c), requires that an aider and abettor who is not the actual
killer must have acted with the intent to kill. (People v. Souza (2012) 54 Cal.4th 90, 110,
fn. 6 [for an aider and abettor who did not actually kill the victims, multiple murder
special circumstance requires an additional finding of intent to kill].)
Miller argues that, in finding him guilty of first degree murder, “the jury
necessarily based its verdict on a felony-murder aiding and abetting theory, the murders
[having] occurred during a robbery.” But, as discussed ante, there was sufficient
evidence to sustain Miller’s conviction for premeditated and deliberate murder. The trial
court instructed the jurors they could find the multiple-murder special circumstance
allegation true, as to a defendant who did not actually kill either victim, only if they
found the defendant acted with intent to kill. Miller does not challenge the correctness of
the trial court’s instructions. Since the properly instructed jury found his multiple murder
special circumstance allegation true, it must have concluded Miller was guilty of a
premeditated and deliberate killing rather than just an accidental killing.
There was sufficient evidence to sustain Miller’s multiple murder special
circumstance finding.
3. Brown was not the victim of vindictive prosecution.
Brown contends the trial court erred by refusing to dismiss the charges against him
on the ground of vindictive prosecution. This claim is meritless.
a. Background.
In December 2006, Brown was charged with one count of murder and three counts
of attempted murder in connection with two shootings that were unrelated to the killings
of Leggette and Wheeler. In 2008, Brown, McLeod and a codefendant, Robert Neal,
went on trial for these shootings in People v. Neal, Los Angeles County Superior Court
Case No. TA093812 (Neal). The jury acquitted the defendants on two of the attempted
21
murder charges, but could not reach a verdict on the murder charge and on one of the
attempted murder charges. A retrial on these counts was held in March 2009.
On March 20, 2009, S.T. entered into a formal agreement with prosecutors to
testify about the Leggette-Wheeler killings, for which Miller, Brown and McLeod were
then charged in April 2009, at which point the Neal retrial was still going on. Brown was
acquitted in the Neal retrial shortly thereafter.
In June 2010, Brown moved to dismiss the charges against him in the case at bar
on the ground of vindictive prosecution. He alleged: “Despite having practically the
same information now as it did in the early stages of the investigation of the charged
crimes, the prosecutor’s office chose not to file the instant case until [the Neal case] . . .
was obviously falling apart . . . and he would be released after the verdict.” The trial
court denied the motion, finding no hint of any retaliatory motive and, therefore, no
presumption of vindictiveness. The court also found that, in any event, a change in
circumstances rebutted any such presumption because of S.T.’s recent agreement to
testify in this case.
b. Legal principles.
The constitutional protection against prosecutorial vindictiveness is based on the
notion that it “would be patently unconstitutional” to “chill the assertion of constitutional
rights by penalizing those who choose to exercise them.” (United States v. Jackson
(1968) 390 U.S. 570, 581 [88 S.Ct. 1209].) “[T]he presumption of unconstitutional
vindictiveness is a legal presumption which arises when the prosecutor increases the
criminal charge against a defendant under circumstances which . . . are deemed to present
a ‘reasonable likelihood of vindictiveness.’ The presumption is not based on the
subjective state of mind of the individual prosecutor and does not imply that he or she
individually harbors an improper motive. [¶] By the same token this legal presumption
cannot be rebutted by the prosecutor’s declaration that he or she was motivated by a
reassessment of the evidence against the defendant rather than by any desire to punish the
exercise of a protected right. In order to rebut the presumption of vindictiveness, the
prosecution must demonstrate that (1) the increase in charge was justified by some
22
objective change in circumstances or in the state of the evidence which legitimately
influenced the charging process and (2) that the new information could not reasonably
have been discovered at the time the prosecution exercised its discretion to bring the
original charge.” (In re Bower (1985) 38 Cal.3d 865, 879.)
Vindictive prosecution can occur when a prosecutor increases the charges against
a defendant who has exercised a constitutional procedural right, such as successfully
appealing a conviction (North Carolina v. Pearce (1969) 395 U.S. 711 [89 S.Ct. 2072])
or exercising a statutory right to a trial de novo after sustaining a misdemeanor conviction
(Blackledge v. Perry (1974) 417 U.S. 21 [94 S.Ct. 2098]). “Where the defendant shows
that the prosecution has increased the charges in apparent response to the defendant’s
exercise of a procedural right, the defendant has made an initial showing of an
appearance of vindictiveness. [Citation.]” (Twiggs v. Superior Court (1983) 34 Cal.3d
360, 371, italics added.) “Given the severity of such a presumption however – which
may operate in the absence of any proof of an improper motive and thus may block a
legitimate response to criminal conduct – the Court has done so only in cases in which a
reasonable likelihood of vindictiveness exists.” (United States v. Goodwin (1982)
457 U.S. 368, 373 [102 S.Ct. 2485].) Where there is no such reasonable likelihood, “the
burden remains upon the defendant to prove actual vindictiveness.” (Alabama v. Smith
(1989) 490 U.S. 794, 799-800 [109 S.Ct. 2201].)
“It is well established . . . that a district attorney’s enforcement authority includes
the discretion either to prosecute or to decline to prosecute an individual when there is
probable cause to believe he has committed a crime.” (Davis v. Municipal Court (1988)
46 Cal.3d 64, 77.) “The decision as to appropriate charges is a matter of prosecutorial
discretion. ‘[P]rosecutorial discretion is basic to the framework of the California criminal
justice system. [Citations.] This discretion, though recognized by statute in California, is
founded upon constitutional principles of separation of powers and due process of law.’
[Citation.] We refuse to require prosecutors to proceed against a defendant on all known
charges simultaneously. We share the concern . . . that such a requirement ‘would tend to
aggravate the very harassment it was designed to alleviate by impelling a prosecutor
23
filing on one charge to throw the book at the defendant in order to prevent him from
acquiring immunity against other potential charges and to protect the prosecutor from
accusations of neglect of duty.’ [Citation.] Rather, we adhere to the rule of Kellett:
‘When . . . the prosecution is or should be aware of more than one offense in which the
same act or course of conduct plays a significant part, all such offenses must be
prosecuted in a single proceeding unless joinder is prohibited or severance permitted for
good cause. Failure to unite all such offenses will result in a bar to subsequent
prosecution of any offense omitted if the initial proceedings culminate in either acquittal
or conviction and sentence.’ [Kellett [v. Superior Court of Sacramento County (1966)]
63 Cal.2d [822,] 827 . . .].)” (People v. Valli (2010) 187 Cal.App.4th 786, 801.)
c. Discussion.
Brown does not claim he was the victim of actual vindictiveness on the part of the
prosecution. (See, e.g., United States v. Ladeau (6th Cir. 2013) 734 F.3d 561, 566 [actual
vindictiveness is “ ‘objective evidence that a prosecutor acted in order to punish the
defendant for standing on his legal rights’ ”].) Although his opening brief contains a
section with the heading “Brown Demonstrated Actual Vindictiveness,” that section
merely cites case law without making any factual assertions related to Brown’s case.
The failure to properly develop an argument is fatal on appeal. (See Jones v. Superior
Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are
not raised or supported by argument or citation to authority, we consider the issues
waived.”].)
Instead, Brown argues only that the prosecution failed to rebut a presumption
of vindictiveness. He asserts “the timing of the charges in this case indicates Brown
was charged for the murders as retaliation for Brown’s exercise of his constitutional
and statutory right to a jury trial in case number TA093812 and winning that case.”
We disagree.
Brown does not contend the charges in Neal were related to the charges in this
case. This is not a situation that gives rise to a presumption of vindictiveness.
(See People v. Lucious (1984) 153 Cal.App.3d 416, 420-424 [filing additional charges in
24
same case for unrelated conduct was not vindictive]; People v. Kun Lee (Ill. App. Ct.
2011) 954 N.E.2d 338, 346 [reindicting defendant on unrelated charge after successful
appeal of convictions in different case was not vindictive]; Williams v. Bartow (7th Cir.
2007) 481 F.3d 492, 501-504 [adding new charges for unrelated conduct after defendant
won motion for new trial was not vindictive]; Humphrey v. United States (11th Cir. 1989)
888 F.2d 1546, 1549 [indicting defendant on unrelated charges while he was seeking
appellate and collateral relief from first conviction was not vindictive]; United States v.
Martinez (9th Cir. 1986) 785 F.2d 663, 668-670 [indicting defendant on unrelated
charges in one case after he was acquitted in different case was not vindictive].) The
only common bond with Neal was that in both cases Brown and McLeod were defendants
and S.T. was a witness. That did not give rise to a presumption of vindictiveness.
(See id. at pp. 669-670 [fact that two cases against defendant shared witnesses was “of no
import”].)
Brown’s reliance on United States v. Groves (9th Cir. 1978) 571 F.2d 450, is
misplaced because there, the charges in the second prosecution were factually related to
the charges in the first prosecution. The police found cocaine in the defendant’s wallet
when they arrested him for participating in a marijuana smuggling operation and,
therefore, “the two statutory violations were so interrelated that there would never have
been a cocaine charge in the first instance were it not for the marihuana [sic]
investigation. Both crimes, in short, grew out of the same set of facts” (Id. at p. 454.)
Brown also mistakenly relies on United States v. Jenkins (9th Cir. 2007) 504 F.3d 694.
Jenkins testified during her drug-smuggling trial that she believed she had been
smuggling illegal aliens, not drugs. Although the government had sufficient evidence to
prosecute Jenkins for alien-smuggling before she admitted those crimes on the stand, it
went ahead with the prosecution only after Jenkins exercised her right to testify.
Hence, there was no presumption of vindictiveness in this case.
Moreover, there was evidence S.T.’s March 2009 agreement to testify about
Brown’s statement, which incriminated McLeod and himself in the Leggette-Wheeler
killings, triggered the prosecutor’s decision to file charges in this case. The trial court
25
concluded S.T.’s agreement to testify in this case was a new fact justifying the decision to
charge defendants and would have effectively rebutted any presumption of
vindictiveness.
4. Trial court properly refused to bifurcate gang enhancement allegation.
Defendants contend the trial court erred by not bifurcating trial of the criminal
street gang enhancement allegation. This claim is meritless.
a. Legal principles.
A trial court’s decision not to bifurcate trial of a gang-enhancement allegation is
reviewed for abuse of discretion. (People v. Hernandez (2004) 33 Cal.4th 1040, 1048.)
The admission of gang evidence always carries a risk of prejudice. “When offered
by the prosecution, we have condemned the introduction of evidence of gang
membership if only tangentially relevant, given its highly inflammatory impact.”
(People v. Cox (1991) 53 Cal.3d 618, 660, disapproved on another ground in People v.
Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) However, “evidence of gang membership is
often relevant to, and admissible regarding, the charged offense. Evidence of the
defendant’s gang affiliation – including evidence of the gang’s territory, membership,
signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like – can
help prove identity, motive, modus operandi, specific intent, means of applying force or
fear, or other issues pertinent to guilt of the charged crime. [Citations.]” (People v.
Hernandez, supra, 33 Cal.4th at p. 1049; see also People v. Olguin (1994)
31 Cal.App.4th 1355, 1369 [“[e]vidence of gang activity and affiliation is admissible
where it is relevant to issues of motive and intent”]; People v. Avitia (2005)
127 Cal.App.4th 185, 192 [“Gang evidence is admissible if it is logically relevant to
some material issue in the case other than character evidence, is not more prejudicial than
probative, and is not cumulative.”].)
Gang evidence is particularly relevant where it serves to explain an otherwise
inexplicable crime. (See People v. Ruiz (1998) 62 Cal.App.4th 234, 239
[notwithstanding potential prejudicial effect of gang evidence, such evidence is
admissible “when the very reason for the crime is gang related”]; People v. Martin (1994)
26
23 Cal.App.4th 76, 81 [“where evidence of gang activity or membership is important to
the motive, it can be introduced even if prejudicial”].) Gang evidence can also be
relevant to the evaluation of a witness’ credibility. “ ‘ “Evidence a witness is afraid to
testify is relevant to the credibility of that witness and is therefore admissible.
[Citations.] Testimony a witness is fearful of retaliation similarly relates to that witness’s
credibility and is also admissible. [Citation.] It is not necessary to show threats against
the witness were made by the defendant personally, or the witness’s fear of retaliation is
directly linked to the defendant for the evidence to be admissible. [Citation.]”
[Citation.]’ ” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449-1450.)
b. Discussion.
The trial court denied a motion to bifurcate the gang-enhancement allegations after
concluding the gang evidence was more probative than prejudicial. Indeed, the court said
it was “so intrinsically entwined I can’t imagine keeping it out.” We agree.
The main issues at trial were identity, motive and intent, and the gang evidence
was directly relevant to these issues. It explained why the defendants committed these
crimes. It explained why the defendants committed these crimes with each other,
particularly in light of Miller’s claim he did not get along with Brown and barely knew
McLeod. (See, e.g., Hernandez, supra, 33 Cal.4th at p. 1051 [gang evidence served to
explain why members of two gangs would commit crimes together].) It explained why
McLeod confided in D.H. about his role in the crimes, and why Brown did the same with
S.T.
Evidence about the black Grand Am cruising Exmoor Avenue a few hours before
the killings, and someone in the car shouting out a gang slogan, was relevant to show this
car was connected to the Nutty Blocc Crips gang because evidence showed the same car
had been used in the killings. Evidence that Miller was a Nutty Blocc Crip member and
owned the Grand Am was relevant to prove his identity as one of the perpetrators.
Immediately following the shootings, Brown and McLeod were seen running to
the Grandees apartment complex, which evidence showed was the main hangout of the
Nutty Blocc Crips gang. The next day, Brown and McLeod were overheard bragging to
27
fellow Nutty Blocc Crip gang members about having committed a robbery the night
before. Gang evidence was relevant to explain why Brown and McLeod ran to the
Grandees, why they were bragging about the crimes the next day, and why they were
unlikely to have lied to fellow gang members about their involvement.
Detective Duncan testified one reason gangs claim territory is to exercise control
over whatever crime occurs in that area. Hence, the gang evidence tended to show the
defendants had been motivated to kill Leggette and Wheeler for breaking into people’s
homes, as Brown told S.T. In addition, Sergeant Reynolds’s testimony that a gang would
want to control the sale of drugs within its territory suggested the defendants could also
have been motivated by the fact Wheeler was openly selling drugs.
Gang evidence was relevant to explain D.H.’s relationship with the defendants,
especially with McLeod, and his knowledge that defendants possessed the kind of guns
used in the killings. The same was true of S.T., especially concerning her relationship
with Brown. Evidence about gang loyalty and retaliation against snitches was relevant to
explain why witnesses like D.H. and S.T. had not come forward earlier than they did, and
why their testimony sometimes differed in crucial respects from their police statements.
The trial court did not abuse its discretion by refusing to grant bifurcation because
the gang evidence was relevant to prove the defendants’ identities, motive and intent, and
to explain their relationships with each other and with the various witnesses.
5. Trial court did not commit misconduct during voir dire.
During jury selection, the trial court and counsel discussed with prospective jurors
the importance of deciding the case based on the evidence, not on the physical
appearances of the defendants or the witnesses. As part of this discussion, the trial court
showed prospective jurors a photograph of the notorious serial killer Ted Bundy in order
to stress the importance of not judging people based on their looks. Defendants contend
this constituted reversible error. This claim is meritless.
28
a. Background.
During this voir dire discussion about treating the defendants fairly, the trial court
related a personal story: “[S]ometimes jurors come up with all sorts of reasons to make it
easier for the prosecutor. They’ll look at someone and they’ll say, well, that person looks
guilty. I actually heard jurors say that. I was one time on jury duty. . . . And walking out
during the break and one juror turned to the other and said, ‘Did you see the defendant?
He looked so guilty.’ And I remember how remarkable that was . . . I imagine that juror
was going to make it easier for the prosecutor to prove the case because in her opinion
somebody looked guilty. In other words, this person was judging . . . a book by its cover.
[¶] And so when we think of these images, what looks guilty, we think about . . . Richard
Ramirez or Charles Manson with a swastika on his forehead. . . . [¶] . . . [Y]ou saw
Mr. Miller, Mr. Brown and McLeod. Have any of you concluded . . . that they
automatically look guilty because of what they look like? The color of their skin, the
shape of their heads. Anybody? That is just as unreasonable as saying somebody is
automatically guilty because they’re associated with a street gang. There has to be
evidence, ladies and gentlemen, beyond a reasonable doubt.
Moments later, a prospective juror said the defendants “do not look guilty to me.
They look like they have kind eyes, and they look like very nice boys. I would really
have to be convinced that they had done the wrong thing . . . because they don’t show
that.” In response, the trial court displayed a photograph of Ted Bundy. The juror agreed
Bundy had kind eyes and was nice-looking. The following colloquy then occurred:
“THE COURT: Anybody recognize him? Anyone?
“PROSPECTIVE JUROR No. 9 . . . : Ted Bundy.
“THE COURT: Who is Ted Bundy, Juror No. 9? What did he do?
“PROSPECTIVE JUROR No. . . . : Serial killer. Killed 14 women.
................
................
“THE COURT: Oh, no. More like 40 women. [¶] Why do I have this, ladies and
gentlemen? Oftentimes that is what people are looking for. They are looking for an
29
image that fulfills stereotypes. Well, this person looks guilty; this person doesn’t look
guilty. People don’t judge what they look like or don’t look like. We judge by the
evidence.”
The trial court then said: “And you see how somebody that looks kind can get
away with things? I’m not saying these good looking men here are responsible for
anything they are charged with. I’m saying you don’t judge people by how consistent
[sic: innocent?] or mean they look. You judge by the evidence that is presented. [¶]
Everybody get that?”
When Brown’s attorney questioned the prospective jurors, he followed up on the
trial court’s theme by referring to the Bundy photograph and saying: “[T]he court talked
about judging people . . . not [to] judge them on the way they look, but on what they say.”
McLeod’s attorney did the same, invoking the “Don’t judge a book by its cover” maxim,
and asking: “Has anyone else been in a situation where they felt judged by the way they
look?”
b. Legal principles.
A trial court “retains great latitude in deciding what questions should be asked on
voir dire.” (Mu’Min v. Virginia (1991) 500 U.S. 415, 424 [111 S.Ct. 1899].) “[B]ecause
the trial court ‘is in the best position to assess the amount of voir dire required to ferret
our latent prejudice, and to judge the responses’ [citation], it has wide discretion in
conducting voir dire in areas of inquiry that might disclose juror bias and ‘ “in deciding
what questions should be asked on voir dire.” ’ [Citation.] It abuses that discretion if
its failure to ask questions renders the defendant’s trial ‘ “fundamentally unfair” ’ or
‘ “ ‘if the questioning is not reasonably sufficient to test the jury for bias or partiality.’ ”
[Citation.]’ [Citation.]” (People v. Taylor (2010) 48 Cal.4th 574, 608.)
“We ‘evaluate the propriety of judicial comment on a case by case basis, noting
whether the peculiar content and circumstances of the court’s remarks deprived the
accused of his right to trial by jury.’ [Citation.]” (People v. Sanders (1995) 11 Cal.4th
475, 531-532.)
30
c. Discussion.
Defendants contend they were prejudiced because the trial court in effect linked
them with the “good looking” serial killer Ted Bundy. Brown argues: “[T]he trial
court’s comments conveyed the belief that nice-looking defendants should not have the
benefit of a good impression; such defendants, like [Ted] Bundy, actually were likely to
be guilty. . . . A prospective juror had just commented that because one of the defendants
was nice-looking, he did not appear guilty. The timing of the court’s remarks effectively
dispelled any favorable impression jurors might have had of Brown and his co-defendants
based on their appearance. Thus, Brown and his co-defendants started out the trial not
presumed innocent but presumed guilty . . . .” Miller argues: “The jury could have
reasonably understood the comment as a suggestion that the handsome defendant, like
serial rapist and killer Ted Bundy, could be guilty. . . . As appellant was called
handsome, he started out the trial presumed guilty.”
We disagree. All the trial court did was point out that even someone as nice
looking as Ted Bundy could be guilty of horrendous crimes. Although it would have
been judicial misconduct to suggest that because the defendants had a pleasing
appearance they were likely to be guilty, this message cannot reasonably be gleaned from
the trial court’s remarks. The trial court clearly informed the prospective jurors they
should decide the case based on the evidence, not on whether the defendants looked
guilty or not guilty.
6. Trial court did not err by admitting evidence of defendants’ extra-judicial
statements acknowledging involvement in the killings.
There was evidence McLeod told D.H. the defendants had robbed and killed
Wheeler. There was evidence Brown told S.T. that he and McLeod had shot and killed
two people on Exmoor. Brown said he used an AK-47 to shoot one of the victims and
McLeod shot the other victim. On appeal, defendants contend the trial court erred by
admitting these statements. This claim is meritless. The statements were trustworthy,
nontestimonial declarations against interest and, therefore, admissible under Evidence
Code section 1230.
31
a. Legal principles.
“In California, ‘[e]vidence of a statement by a declarant having sufficient
knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is
unavailable as a witness and the statement, when made, . . . so far subjected him to the
risk of . . . criminal liability . . . that a reasonable man in his position would not have
made the statement unless he believed it to be true.’ ([Evid. Code,] § 1230.) The
proponent of such evidence must show that the declarant is unavailable, that the
declaration was against the declarant’s penal interest when made and that the declaration
was sufficiently reliable to warrant admission despite its hearsay character. [Citation.]”
(People v. Duarte (2000) 24 Cal.4th 603, 610-611.)
“To determine whether the declaration passes the required threshold of
trustworthiness, a trial court ‘may take into account not just the words but the
circumstances under which they were uttered, the possible motivation of the declarant,
and the declarant’s relationship to the defendant.’ [Citation.] On appeal, the trial court’s
determination on this issue is reviewed for abuse of discretion. [Citation.]” (People v.
Cudjo (1993) 6 Cal.4th 585, 607; see also People v. Lawley (2002) 27 Cal.4th 102, 153-
154 [trial court’s decision whether statement is against defendant’s penal interest is
reviewed for abuse of discretion].) “We have recognized that, in this context, assessing
trustworthiness ‘ “requires the court to apply to the peculiar facts of the individual case a
broad and deep acquaintance with the ways human beings actually conduct themselves in
the circumstances material under the exception.” ’ ” (People v. Duarte, supra, 24 Cal.4th
at p. 614.) As we have noted, although “ ‘[t]here is no litmus test for the determination of
whether a statement is trustworthy and falls within the declaration against interest
exception. . . . [¶] . . . the most reliable circumstance is one in which the conversation
occurs between friends in a noncoercive setting that fosters uninhibited disclosures.
[Citations.]’ [Citation.]” (People v. Cervantes (2004) 118 Cal.App.4th 162, 175.)
32
b. Discussion.
(1) McLeod’s Statement to D.H.
Brown and Miller properly concede McLeod’s statement to D.H. was not
testimonial. McLeod made the statement in private to D.H., his long-time friend and
fellow Nutty Blocc Crip gang member, and their conversation took place in D.H.’s room
at the house where he lived with his mother and grandmother. (See People v. Cervantes,
supra, 118 Cal.App.4th at pp. 173-174 [codefendant’s statements to long-time friend
were nontestimonial].)
Nevertheless, defendants argue their confrontation clause rights were violated
because admission of this evidence violated the rule of Aranda-Bruton.6 As our Supreme
Court explained in People v. Lewis (2008) 43 Cal.4th 415, 453: “A criminal defendant
has a right, guaranteed by the confrontation clause of the Sixth Amendment to the United
States Constitution, to confront adverse witnesses. The right to confrontation includes
the right to cross-examination. [Citation.] A problem arises when a codefendant’s
confession implicating the defendant is introduced into evidence at their joint trial. If the
declarant codefendant invokes the Fifth Amendment right against self-incrimination and
declines to testify, the implicated defendant is unable to cross-examine the declarant
codefendant regarding the content of the confession.”
“[U]nder Bruton and its progeny, a codefendant’s hearsay statement is admissible
‘if it falls within a “firmly rooted” hearsay exception or is “supported by a showing of
particularized guarantees of trustworthiness.” [Citations.]’ [Citation.]” (People v. Arceo
(2011) 195 Cal.App.4th 556, 571.) Defendants cite People v. Garcia (2008)
168 Cal.App.4th 261, 282, fn. 12, for the proposition that “[w]hether the Aranda/Bruton
rule applies only to extrajudicial testimonial statements appears to be an unsettled
question.” However, “since People v. Garcia’s observation, a number of federal courts
6 Bruton v. United States (1968) 391 U.S. 123 (88 S.Ct. 1620); People v. Aranda
(1965) 63 Cal.2d 518.
33
have expressly held that the Bruton rule does not apply to nontestimonial statements.”
(People v. Arceo, supra, at p. 574.)
It also appears the statement was trustworthy. The conversation took place less
than 24 hours after the killings, McLeod spoke from direct personal knowledge, and he
had no reason to lie to D.H.
Defendants argue there were inconsistencies that rendered the evidence
untrustworthy because D.H. wavered on the witness stand about whether McLeod had
implicated himself. Not so. “When evidence is offered under one of the hearsay
exceptions, the trial court must determine, as preliminary facts, both that the out-of-court
declarant made the statement as represented, and that the statement meets certain
standards of trustworthiness. [Citation.] The first determination – whether the
declaration was made as represented – is governed by the substantial evidence rule.
The trial court is to determine only whether there is evidence sufficient to sustain a
finding that the statement was made. [Citation.] As with other facts, the direct testimony
of a single witness is sufficient to support a finding unless the testimony is physically
impossible or its falsity is apparent ‘without resorting to inferences or deductions.’
[Citations.] Except in these rare instances of demonstrable falsity, doubts about the
credibility of the in-court witness should be left for the jury’s resolution; such doubts do
not afford a ground for refusing to admit evidence under the hearsay exception for
statements against penal interest. [Citations.]” (People v. Cudjo, supra, 6 Cal.4th at
pp. 608-609, italics added.)
(2) Brown’s Statement to S.T.
Miller properly concedes Brown’s statement to S.T. was not testimonial. Brown
made the statement in private to S.T. at her home in Long Beach, a few months after the
killings. S.T. had not only become an active Nutty Blocc Crip gang member, but she and
Brown committed crimes together and were involved in a sexual relationship. Rather,
Miller argues Brown’s statement “was not trustworthy since it was both inculpatory and
exculpatory. He implicated himself. But he also shifted the blame to others.” Not so.
Brown merely told S.T. that he, McLeod and J-Capone had killed two people on Exmoor,
34
that he had “used an AK” and that McLeod “shot the other person.” This does not
constitute “shifting the blame to others.”
7. Trial court did not err by admitting consciousness of guilt evidence relating to
Wheeler’s mother.
A day or two after Leggette and Wheeler were killed, Miller instructed M.H. to
tell Wheeler’s mother that M.H. had seen “some Mexicans” rob and kill her son. A few
minutes later, Brown told M.H. not to get involved and not to approach Wheeler’s
mother. Defendants contend this was inadmissible hearsay evidence. Not so. The
statements were not hearsay, and they were relevant and admissible to show
consciousness of guilt on the part of Miller and Brown.
Evidence Code section 1200, subdivision (a), provides: “ ‘Hearsay evidence’ is
evidence of a statement that was made other than by a witness while testifying at the
hearing and that is offered to prove the truth of the matter stated.” If a statement “was
not offered for the truth of the matter asserted, it was not hearsay at all and no hearsay
exception was required to be found.” (People v. Gutierrez (2000) 78 Cal.App.4th 170,
174, fn. 4.; see, e.g., People v. Curl (2009) 46 Cal.4th 339, 362 [after being informed he
had been accused of murder, extra-judicial declarant asked witness to tell family member
to get rid of his boots: the declarant’s “statement was not hearsay but simply verbal
conduct consisting of a directive that was neither inherently true nor false”].)
Miller’s demand that M.H. lie to Wheeler’s mother about the death of her son was
relevant and admissible to prove Miller’s consciousness of guilt. “[F]alse statements by a
defendant are admissible to demonstrate consciousness of guilt. [Citation.]” (People v.
Hughes (2002) 27 Cal.4th 287, 335, fn. omitted.) Similarly, Brown’s direction to M.H.
not to get involved and not to approach Wheeler’s mother was relevant to prove Brown’s
own consciousness of guilt: it was reasonable to infer he intervened because he knew the
killings had not been committed by “some Mexicans.”
35
8. Evidence of Miller’s relationship with M.H. was properly admitted.
Miller contends7 the trial court erred by admitting evidence of the crimes he
committed against M.H., sexual assault and kidnapping, as well as evidence of the
voicemail messages he left for her on the eve of trial. This claim is meritless.
a. Background.
In December 2005, Miller was arrested and charged with having kidnapped M.H.
and having committed various sex offenses against her, including pimping a minor for
prostitution. Following a trial at which M.H. testified, Miller was sentenced to prison for
85 years to life.
Before M.H. testified in the case at bar, the prosecutor informed the trial court he
did not intend to offer any evidence about M.H.’s former testimony or the fact Miller had
been convicted. However, he did want to introduce evidence regarding the nature of
M.H.’s prior relationship with Miller in order to show why Miller felt secure enough to
order her to lie to Wheeler’s mother, and to show that the voicemail messages he left had
been intended to affect M.H.’s testimony. The prosecutor wanted to have M.H. testify to
the following: She first met Miller when she was 14 years old; they were having a sexual
relationship in September-October 2005; Miller forced her to have sex with him and then
forced her to have sex with other men for money; their relationship ended in December
2005 when the police rescued her from the Bellflower motel where Miller had taken her.
The trial court ruled evidence about M.H.’s age and her intimate relationship with
Miller was relevant and admissible, but that Miller’s conviction in the other case was
irrelevant. At Miller’s request, the trial court also excluded evidence M.H. had testified
against Miller at his previous trial.
On direct examination, M.H. testified accordingly. During cross-examination,
defense counsel asked questions suggesting Miller did not kidnap M.H., but rather that
she ran away from home because her father had been molesting her, and this was why she
7 Brown and McLeod join this contention to the extent it may benefit them.
36
never reported the alleged kidnapping to the police. In response to this cross-
examination, the trial court allowed M.H. to testify that she did report Miller to the
police, charges were filed against him, and she testified against him at his trial.
The trial court also allowed the prosecution to play a tape recording of the voice
mail messages Miller had left. (See fn. 4, ante.) The trial court reasoned the tone of
Miller’s voice suggested he was trying to intimidate M.H. on the eve of trial, and that the
tape could help the jury better understand M.H.’s testimony about Miller’s directing her
to speak to Wheeler’s mother.
b. Discussion.
Miller argues this evidence should not have been admitted because it was both
irrelevant and prejudicial. He asserts the evidence had no probative value because
“[t]he real issue . . . was whether [Miller] was involved in the crimes or in Lancaster at
the hospital during the shootings. Evidence [he] kidnapped and had unlawful sex with
[M.H.] when she was a minor and left intimidating messages on her answering machine
added nothing to help the jury decide the case. The crimes were not even similar to those
charged.” Miller argues M.H.’s testimony that “she spoke with the police about the
kidnapping and forced sex” was only relevant “to show appellant as a deviant sexual
predator.” We disagree.
The voicemail messages Miller left for M.H. tended to show he was trying to keep
her from testifying against him. The trial court listened to the messages and deemed
them admissible because Miller’s tone suggested he was trying to intimidate her. This
decision was well within the trial court’s discretion. “Evidence of efforts to intimidate a
witness is . . . admissible to show a defendant’s consciousness of guilt if there is evidence
the defendant authorized or acquiesced in the efforts.” (People v. Valdez (2012)
55 Cal.4th 82, 135, fn. 32.)
Miller’s relationship with M.H. was relevant and admissible to explain why a 29-
year-old man, in an effort to deflect suspicion from himself, would tell a 14-year-old girl
to lie to a murder-victim’s mother about who was responsible for the crime. Evidence
showing Miller had a pimp-prostitute relationship with M.H. suggested he chose her to
37
deliver this message because he knew she was susceptible to his manipulation, and thus
he had no fear she would report him to the authorities.
By suggesting M.H. never reported any of this to the police, Miller was trying to
undermine her credibility and he thereby opened the door to evidence showing he had
been convicted for committing sexual offenses against her. (See People v. Cleveland
(2004) 32 Cal.4th 704, 745 [“Without context, [the witness’s] protestations . . . might
appear disingenuous, which would cast doubt on her credibility. It was thus appropriate
for the district attorney to supply the context . . . .”].) Miller also opened the door to
evidence of his 2010 voice mail messages by suggesting through his questioning that
M.H. was on friendly terms with him. For example, defense counsel asked her: “Are
you guys still friends, do you keep in touch?”
M.H.’s credibility was important because the incident about talking to Wheeler’s
mother was one of the key pieces of evidence discrediting Miller’s elaborate alibi
defense. Under Evidence Code section 352, a trial court has discretion to exclude
evidence if its probative value is substantially outweighed by the probability of wasted
time or the danger of undue prejudice, confusing the issue, or misleading the jury.
(Evid. Code, § 352.) A trial court’s exercise of this discretion will not be overturned on
appeal absent a showing its discretion was abused. (People v. Raley (1992) 2 Cal.4th
870, 895; see also People v. Von Villas (1992) 10 Cal.App.4th 201, 268 [decision to
admit or exclude evidence lies within discretion of trial court and erroneous decisions are
tested under Watson8 harmless error standard].) The evidence of Miller’s crimes against
M.H. would surely have troubled the jury, but so would the evidence of Miller’s role in
murdering two men. Thus, in the context of the facts of this case, the potentially
prejudicial prior sexual conduct evidence was not particularly inflammatory. (See People
v. Kipp (1988) 18 Cal.4th 349, 372 [risk of prejudice “was not unusually grave” where
the prior “crimes were not significantly more inflammatory than the [current] crimes”].)
8 People v. Watson (1956) 46 Cal.2d 818, 836.
38
9. Trial court did not err by admitting evidence regarding the
intimidation of D.H.
Defendants contend the trial court erred by letting D.H. testify about having been
threatened and spat on during the jail bus ride to the defendants’ preliminary hearing.
This claim is meritless.
a. Background.
In a pretrial police interview, D.H. said McLeod told him all three defendants had
participated in the killings. But at the preliminary hearing, and then during the initial
portion of his trial testimony, D.H. said McLeod only told him Miller and Brown were
the perpetrators without saying that he himself had participated. When the prosecutor
challenged this testimony as inconsistent with what he told the police, D.H.
acknowledged the inconsistency but testified he could not explain why his story had
changed. The prosecutor asked D.H. if he were afraid. D.H. said he was, and then
testified about having been threatened on the bus and spat on by Miller.
b. Discussion.
Defendants argue this testimony was not relevant to credibility or impeachment,
and constituted improper impeachment of the prosecution’s own witness under Evidence
Code section 785. We disagree.
Following the enactment of the Evidence Code, any party may freely impeach any
witness with a prior inconsistent statement. Defendants’ reliance on pre-Evidence Code
case law for the proposition that the impeached testimony must be prejudicial and
detrimental is unpersuasive. “The general rule against impeaching one’s own witness . . .
was abrogated by the Legislature’s passage of Evidence Code section 785 in the same
year it passed Evidence Code section 1202. Evidence Code section 785 provides: ‘The
credibility of a witness may be attacked or supported by any party, including the party
calling him.’ Significantly, Evidence Code sections 785 and 1202 were not only passed
in the same year; they were passed as part of the same bill. [Citation.] . . . Read
together as a single statute, these two sections allow a prosecutor to use a prior
39
inconsistent statement to partially impeach a hearsay statement the prosecutor had
previously introduced.” (People v. Osorio (2008) 165 Cal.App.4th 603, 616-617.)
“A trial court’s ruling to admit or exclude evidence offered for impeachment is
reviewed for abuse of discretion and will be upheld unless the trial court ‘exercised its
discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641,
705.)
“As we have recognized, ‘[e]vidence that a witness is afraid to testify or fears
retaliation for testifying is relevant to the credibility of that witness and is therefore
admissible. [Citations.] An explanation of the basis for the witness’s fear is likewise
relevant to her credibility and is well within the discretion of the trial court. [Citations.]’
[Citations.]” (People v. Mendoza (2011) 52 Cal.4th 1056, 1084; see People v. Olguin,
supra, 31 Cal.App.4th at p. 1368 [“A witness who testifies despite fear of recrimination
of any kind by anyone is more credible because of his or her personal stake in the
testimony”].) D.H.’s testimony about the bus ride was admissible to show he was afraid
to testify and served to rebut the blow to his credibility arising from the fact he kept
contradicting himself about what McLeod told him.
The trial court did not err by admitting this evidence, which was more probative
than prejudicial.
10. Trial court properly excluded questions to D.H. about an unrelated murder.
Defendants contend the trial court erred by sustaining an objection to Miller’s
continuing cross-examination of D.H. about whether he had committed an unrelated
murder. This claim is meritless.
During cross-examination, Miller’s counsel asked D.H. if it weren’t true that he
had killed someone named Darren Gunther. The prosecutor objected and the trial court,
at a sidebar conference, asked for an offer of proof for this line of questioning. Defense
counsel said he had learned of this murder from Miller. McLeod’s attorney said he, too,
understood D.H. had killed Gunther, but asserted the attorney-client privilege when the
trial court asked him the basis for his understanding. After all three defense attorneys
40
said they had no intention of pursuing the issue, the trial court said, “Let’s not get into it.
I didn’t hear an offer of proof on it. If one develops later on [D.H.] will be available if
you need him.”9
Instead of demonstrating on appeal the relevance of this alleged murder, McLeod
merely argues: “The exclusion of the inquiry must be examined as a question of fairness
and parity. The state charged appellant with murder. That charge was an allegation,
nothing more. The prosecutor wasn’t required to make an offer of proof as to the charge
before having witnesses testify about evidence of that murder charge, including claims
that the defendants allegedly admitted involvement in the murder.” This does nothing to
demonstrate the trial court erred by excluding further questioning about an apparently
unrelated murder. (See People v. Quartermain (1997) 16 Cal.4th 600, 625 [trial court did
not abuse discretion by excluding impeachment on collateral matter]; see also People v.
Hayes (1999) 21 Cal.4th 1211, 1266 & fn. 15 [disallowing impeachment of prosecution
witness on collateral matter did not restrict defendant’s right to confrontation and cross-
examination].)
11. Trial court did not err by not compelling D.H. to identify a potential witness.
D.H. testified he had been with a friend at the Grandees when he heard the
gunshots on the night of the killings, but he refused to identify this friend. The trial court
concluded the friend’s identity was irrelevant to the case. Defendants contend the trial
court erred by not requiring D.H. to identify his friend. This claim is meritless.
Evidence Code section 210 provides: “ ‘Relevant evidence’ means evidence,
including evidence relevant to the credibility of a witness or hearsay declarant, having
any tendency in reason to prove or disprove any disputed fact that is of consequence to
the determination of the action.” “ ‘Although we recognize that a criminal defendant has
a constitutional right to present all relevant evidence of significant probative value in his
favor [citations], “[t]his does not mean that an unlimited inquiry may be made into
9 D.H. subsequently testified he had never killed anyone.
41
collateral matters; the proffered evidence must have more than ‘slight-relevancy’ to the
issues presented.” [Citation.]’ [Citation.]” (People v. Homick (2012) 55 Cal.4th 816,
865.) A trial court’s determination that evidence is irrelevant is reviewed for an abuse of
discretion. (People v. Alvarez (1996) 14 Cal.4th 155, 201.)
McLeod asserts D.H.’s unnamed friend was “a critical defense witness,” but he
never explains why. McLeod asserts the evidence “impacted [D.H.]’s credibility, it
would have allowed for an opportunity to impeach [D.H.], a key witness for the State,
and it was a piece of discoverable evidence that would have lead [sic] to a witness for the
defense.” But again, he fails to elaborate on any of these conclusory assertions.
McLeod’s only articulated argument concerns D.H.’s testimony that he walked
fast toward the sound of the gunshots, which “took a few minutes,” but “by the time he
arrived the police were already there, and the yellow police tape was already up.”
McLeod claims “[t]his testimony is simply not believable” because the police could not
possibly have gotten to the scene so quickly: “Since [D.H.] offered no indication he was
in error about the facts, the reasonable conclusion is that he lied. His friend would have
offered some clarity to this testimony.”
The far more reasonable conclusion, however, is that D.H. simply misjudged how
much time had passed before the police arrived. In any event, there is no logical nexus
whatsoever between what D.H. and his friend witnessed that night, and D.H.’s testimony
that on the following day he heard McLeod admit his role in the killings. D.H. did not
claim to have witnessed the killings; he merely heard gunshots, as did numerous other
witnesses. The identity of his friend was irrelevant because it did not have a tendency to
prove or disprove a disputed fact that was “of consequence to the determination of the
action.” (Evid. Code, § 210, italics added.)
The trial court therefore properly exercised its discretion by telling defendants to
move on to more-relevant cross-examination topics. (See People v. Marshall (1996)
13 Cal.4th 799, 836 [“Although a criminal defendant is constitutionally entitled to present
all relevant evidence of significant probative value in his favor, this does not mean the
42
court must allow an unlimited inquiry into collateral matters; the proffered evidence must
have more than slight relevancy.”].)
12. Trial court did not err by permitting witness to testify while wearing
sunglasses.
Defendants contend their convictions must be reversed because the trial court
allowed a prosecution witness to testify while wearing sunglasses. This claim is
meritless.
a. Background
J.S. was one of the teenagers who saw the black Pontiac Grand Am drive up and
down Exmoor Avenue several hours before the killings. J.S. saw two men in the car, the
driver and a passenger, but he did not get a good look at either one. That evening, J.S.
was inside his house when he heard gunshots. Seconds later he “heard . . . a car fly by”
but he didn’t really see the car.
A few weeks after the killings, Detective Cochran showed J.S. some photo arrays
to see if he could identify any of the Grand Am’s occupants. J.S. said a photo of Brown
looked familiar, but only a “4” on a scale of “10.” At trial, J.S. testified this meant he
was less than 50 percent sure of the identification because he had not gotten a good look
at the person. J.S. testified he knew McLeod from school, but he did not see McLeod in
the car that day. J.S. did not identify Miller as having been in the car.
When he testified at trial, J.S. sat in the witness chair wearing sunglasses. After he
acknowledged they were not prescription glasses, the trial court asked him to remove
them. But J.S. asked to keep them on and the trial court agreed. None of the defendants
explicitly objected to J.S. wearing sunglasses, although Miller’s attorney said, “If it’s not
for a medical reason, I would prefer any witness not to wear sunglasses. I think it assists
the fact-finders in determining their demeanor while testifying.” Counsel for Brown and
McLeod did not say anything. Miller cross-examined J.S. about the quality of his vision,
but not about the sunglasses. Brown and McLeod did not ask J.S. any questions about his
vision or why he was wearing sunglasses.
43
Asked if he were scared, J.S. answered “not really,” but he acknowledged having
told the prosecutor and Detective Cochran he did not want to testify. The trial court later
described J.S. as “a fearful witness who lives inside of Nutty Blocc Crips’ claimed turf.”
Eleven days after J.S. testified, Brown moved to strike his testimony on the ground
he had worn sunglasses on the stand. Miller joined the motion, but McLeod expressly
declined to join. The trial court denied the motion, although it offered to consider an
appropriate instruction to the jury if the defendants proposed one. The trial court said,
“[Y]ou know this case doesn’t appear in a vacuum. And in the context of the community,
for whatever reason, this witness wanted to keep some sort of privacy and some sort of
perception of protection. . . . The jurors may certainly consider that. And counsel of
course may argue that you didn’t get to see his eyes. I will entertain any pinpoint
instruction to point it out.” However, the defendants did not request any jury instructions
addressing the issue.
Subsequently, in denying Brown’s motion for a new trial based on J.S.’s
sunglasses, the trial court concluded the defendants had not been prejudiced: “Sunglasses
are not a very good disguise. . . . In any event, this witness . . . is not a percipient witness
to the homicides. This witness merely testified that he saw a vehicle earlier in the
evening that he then saw later on at night after he heard gunshots, and he saw that same
vehicle leaving. He . . . was not able to identify anybody inside that vehicle earlier in the
day or did not recall . . . that he may have identified somebody that looked vaguely
familiar to a six-pack, to detectives. [H]e did not identify anybody in court, so regarding
[J.S.’s] permission to use sunglasses in court, I don’t think there was any prejudice to the
defendant.” (Italics added.)
b. Discussion.
The confrontation clause gives a defendant “the right physically to face those who
testify against him.” (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 51 [107 S.Ct. 989].)
“The primary object” of the confrontation clause is to ensure that a criminal defendant
“has an opportunity, not only of testing the recollection and sifting the conscience of the
witness, but of compelling him to stand face to face with the jury in order that they may
44
look at him, and judge by his demeanor upon the stand and the manner in which he gives
his testimony whether he is worthy of belief.” (Mattox v. United States (1895) 156 U.S.
237, 242-243 [15 S.Ct. 337].)
Citing Coy v. Iowa (1988) 487 U.S. 1012 [108 S.Ct. 2798], Maryland v. Craig
(1990) 497 U.S. 836 [110 S.Ct. 3157], and People v. Murphy (2003) 107 Cal.App.4th
1150, defendants assert the trial court erred by allowing J.S. to testify without having first
made an express finding he needed to wear the sunglasses and that public policy would
be served by allowing him to do so. Coy held that allowing child sexual abuse victims to
testify from behind a screen, which blocked them from the defendant’s sight, violated the
confrontation clause. (Coy v. Iowa, supra, at pp. 1020-1021.) Craig allowed a child
victim to testify from outside the courtroom by means of a one-way closed circuit
television. (Maryland v. Craig, supra, at pp. 851-852.) Murphy held that allowing an
adult victim to testify from behind one-way glass, so she would not have to see the
defendant, violated the confrontation clause. (People v. Murphy, supra, at pp. 1157-
1158.)
But here, J.S. testified in person, from inside the courtroom and in full view of the
defendants except for the fact his eyes were obscured. As the trial court noted,
“Sunglasses are not a very good disguise.” In Morales v. Artuz (2d Cir. 2002) 281 F.3d
55, the trial court allowed a principal witness to testify without removing her dark
sunglasses. Morales pointed out: “Although Craig and Coy set forth the appropriate test
where the witness is physically separated from the defendant, none of the cases thus far
decided by the Supreme Court deals with our precise context – a witness testifying in the
presence of the defendant and the jury with a slight disguise that prevents the defendant
and the jurors from seeing the witness’s eyes.” (Id. at p. 58, italics added.)
Morales concluded the witness’s sunglasses did not violate any clearly established
federal law. “To the extent that the Supreme Court’s ‘established law’ of confrontation
seeks to assure cross-examination and an opportunity for the witness to see the defendant,
Sanchez’s sunglasses created no impairment. On the other hand, to the extent that the
right assures an opportunity for the defendant and especially the jurors to see the
45
witness’s eyes in order to consider her demeanor as an aid to assessing her credibility,
some impairment occurred. Seeing a witness’s eyes has sometimes been explicitly
mentioned as of value in assessing credibility. [Citations.] In Coy, the Court noted that
the trier of fact could ‘draw its own conclusions’ if the witness looked away from the
defendant. [Citation.]” (Morales v. Artuz, supra, 281 F.3d at p. 60, fn. omitted.)
Morales reasoned: “The obscured view of the witness’s eyes . . . resulted in only a
minimal impairment of the jurors’ opportunity to assess her credibility. Even if we
accept the idea, grounded perhaps more on tradition than on empirical data, that
demeanor is a useful basis for assessing credibility, the jurors had an entirely unimpaired
opportunity to assess the delivery of Sanchez’s testimony, notice any evident
nervousness, and observe her body language. Most important, they had a full opportunity
to combine these fully observable aspects of demeanor with their consideration of the
substance of her testimony, assessing her opportunity to observe, the consistency of her
account, any hostile motive, and all the other traditional bases for evaluating testimony.
All that was lacking was the jury’s ability to discern whatever might have been indicated
by the movement of her eyes.” (Id. at pp. 60-62, fns. omitted.)
Morales was followed by the Massachusetts Supreme Court in Commonwealth v.
Lynch (2003) 789 N.E.2d 1052, 1060: “Even if Moosick had worn dark glasses of some
type, there is no basis on which to conclude that it created a substantial likelihood of a
miscarriage of justice. ‘Face to face’ confrontation does not mean ‘eye to eye,’ [citation],
and wearing dark glasses does not prevent exposure of a witness’s face. [Citation.]”
The Texas Court of Criminal Appeals found a confrontation clause violation in a
sunglasses case, but only because there had been much more to the “disguise.” There, a
key state witness testified while “wearing dark sunglasses, a baseball cap pulled down
over his forehead, and a long-sleeved jacket with its collar turned up and fastened so as to
obscure Vasquez’s mouth, jaw, and the lower half of his nose. The net effect and
46
apparent purpose of Vasquez’s ‘disguise’ was to hide almost all of his face from view.”
(Romero v. State (Tex.Crim.App., 2005) 173 S.W.3d 502, 503, fn. omitted.)10
We agree with these analyses and conclude there was no confrontation clause
violation here.
Moreover, even had there been a confrontation clause violation, it would have
been harmless. Unlike the situations in Coy, Craig, and Murphy, where the witnesses in
question were the alleged victims, J.S. was merely a bystander witness, he did not see the
crimes being committed, he did not testify the defendants made inculpatory statements to
him, and at most he had made a very equivocal identification of one defendant.
(Compare People v. Murphy, supra, 107 Cal.App.4th at p. 1158 [error not harmless
“especially since the pivotal issue was the alleged victim’s credibility”].)
We conclude the trial court did not err by letting J.S. wear his sunglasses while
testifying.
13. Guns and ammunition evidence properly admitted.
Defendants contend the trial court erred by admitting evidence Miller possessed
guns and exchanged them with McLeod, and evidence Miller possessed ammunition that
was different from the ammunition used in the killings. This claim is meritless.
a. Background.
`` M.H. told police she had seen Miller with guns, that he would keep them in the
trunk of his car, and that he would switch guns with McLeod. M.H. also saw Miller with
a handgun around the time of the killings.
10 Romero also said: “[N]or is this a case in which the defendant was shown to
belong to a crime syndicate or a street gang from which retaliation might be anticipated,”
“the disguise consisted of far more than sunglasses,” and “we cannot say that the
testimony was cumulative and thus harmless.” (Romero v. State, supra, 173 S.W.3d at
pp. 506, 507.) As to all three of these factors, the situation in the case at bar was
precisely the opposite: J.S.’s disguise consisted of nothing more than his sunglasses, the
defendants did belong to a violent street gang, and he was not a key witness.
47
When Detective Cochran searched Miller’s impounded car, he found two boxes of
ammunition and a police scanner in the trunk. The ammunition did not match the spent
cartridges found at the crime scene. Outside the jury’s presence, the prosecutor explained
this evidence was being offered to show Miller was still participating in gang activities
despite his claim of having quit the Nutty Blocc Crips. The trial court admitted the
ammunition and the police scanner into evidence on the ground they were more probative
than prejudicial, both as to the murder charges and the gang-enhancement allegation.
When he testified, Miller denied the ammunition and police scanner belonged to
him, although he had no explanation for how these items found their way into his car.
He testified: “I didn’t have those bullets in the trunk. [¶] . . . [¶] That was not my
scanner. It was put there.”
b. Legal principles.
Defendants cite a line of cases based on People v. Riser (1956) 47 Cal.2d 566,
disapproved on other grounds by People v. Chapman (1959) 52 Cal.2d 95, 98, which
said: “When the specific type of weapon used to commit a homicide is not known, it may
be permissible to admit into evidence weapons found in the defendant’s possession some
time after the crime that could have been the weapons employed. There need be no
conclusive demonstration that the weapon in defendant’s possession was the murder
weapon. [Citations.] When the prosecution relies, however, on a specific type of
weapon, it is error to admit evidence that other weapons were found in his possession, for
such evidence tends to show, not that he committed the crime, but only that he is the sort
of person who carries deadly weapons.” (People v. Riser, supra, at p. 577.)
However, our Supreme Court subsequently broadened Riser, holding that even
where it is clear the weapon was not the one used to assault the victim there may be some
situations in which it would be relevant and properly admitted into evidence.
(See People v. Smith (2003) 30 Cal.4th 581, 613-614 [evidence defendant possessed gun
unrelated to murder was properly admitted because it contradicted accidental shooting
defense]; People v. Neely (1993) 6 Cal.4th 877, 896 [where victim killed by .22-caliber
48
bullet, evidence of .30-caliber gun and ammunition found in defendant’s truck at crime
scene shortly after the shooting was properly admitted].)
Miller testified he was no longer associating with the Nutty Blocc Crip gang at the
time of the killings because he had given his life over to Christ. Evidence that he had
boxes of ammunition and a police scanner in his car was relevant to impeach this
testimony and to show Miller was still active in the gang. This evidence, in turn, was
relevant to the gang-enhancement allegations because it showed that active Nutty Blocc
Crip gang members had carried out the killings. The evidence was relevant to the
underlying charges because it tended to show Miller was still associating with Brown and
McLeod.
Moreover, M.H. did not specify what type of handgun or other guns Miller
possessed and exchanged with McLeod around the time of the killings. The weapons
used in the killings were a .45 caliber handgun and a semiautomatic rifle. Evidence that
Miller possessed a “handgun,” kept “guns” in the trunk of his car, and exchanged “guns”
with McLeod was admissible because M.H.’s unspecified description did not rule out the
possibility these could have been the guns used. (See People v. De La Plane (1979)
88 Cal.App.3d 223, 239, disapproved on other grounds in People v. Green (1980)
27 Cal.3d 1, 39, fn. 25 [sawed-off axe handle found in defendant’s house admissible
because expert testified it could have caused victim’s wound].)
This evidence was properly admitted.
14. There was no prosecutorial misconduct.
Defendants contend their convictions must be reversed for prosecutorial
misconduct. This claim is meritless.
a. Legal principles.
“Under California law, a prosecutor commits reversible misconduct if he or she
makes use of ‘deceptive or reprehensible methods’ when attempting to persuade either
the trial court or the jury, and it is reasonably probable that without such misconduct, an
outcome more favorable to the defendant would have resulted. [Citation.] Under the
federal Constitution, conduct by a prosecutor that does not result in the denial of the
49
defendant’s specific constitutional rights – such as a comment upon the defendant’s
invocation of the right to remain silent – but is otherwise worthy of condemnation, is not
a constitutional violation unless the challenged action ‘ “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.” ’ [Citations.] [¶]
‘ “[A] defendant may not complain on appeal of prosecutorial misconduct unless in a
timely fashion – and on the same ground – the defendant made an assignment of
misconduct and requested that the jury be admonished to disregard the impropriety.
[Citation.]” ’ ” (People v. Riggs (2008) 44 Cal.4th 248, 298.) A defendant who fails to
object at trial “waive[s] any error or misconduct emanating from the prosecutor’s
argument that could have been cured by a timely admonition.” (People v. Wrest (1992)
3 Cal.4th 1088, 1105.)
“ ‘ “[T]he prosecution has broad discretion to state its views as to what the
evidence shows and what inferences may be drawn therefrom.” ’ [Citation.]”
(People v. Welch (1999) 20 Cal.4th 701, 752.) “When we review a claim of prosecutorial
remarks constituting misconduct, we examine whether there is a reasonable likelihood
that the jury would have understood the remark to cause the mischief complained of.
[Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 689.) “To prevail on a claim of
prosecutorial misconduct based on remarks to the jury, the defendant must show a
reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citations.] In conducting this inquiry, we ‘do not lightly
infer’ that the jury drew the most damaging rather than the least damaging meaning from
the prosecutor’s statements.” (People v. Frye (1998) 18 Cal.4th 894, 970, disapproved on
another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
b. There was no harmful late disclosure of evidence.
Defendants contend that a small proportion of the trial evidence should have been
provided to them sooner than it was. However, defendants never explain exactly how
they were harmed by these purported late disclosures. At most, they offer only gross
generalizations, such as when Miller argues: “[T]he prosecutor’s belated disclosures of
50
the exhibits diminished the defense’s ability to properly prepare for trial.” The specific
exhibits complained about are as follows:
(1) People’s Exhibit No. 126
When the prosecutor showed a police officer the photograph of a purported gang
member, McLeod’s attorney objected he had not seen “the exhibit” before. After the
prosecutor noted he had used this photograph during his opening statement, defense
counsel said, “Objection to the photograph. It is not just a photograph of the person who
has been identified.” After the prosecutor pointed out the item had been used in its
entirety during opening statement, and shown to all defense counsel prior to that, the trial
court allowed the prosecutor to ask the witness about it and show it to the jury.
Defendants have not demonstrated there was any late disclosure of this exhibit.
(2) People’s Exhibit No. 130
The prosecutor wanted to show D.H. a photograph in which he appeared. After an
initial defense objection was overruled, a subsequent objection led to a sidebar discussion
regarding the proper manner of publishing photographs to the jury. When defense
counsel complained the prosecutor had left the photograph on the overhead projector
while defense counsel was still arguing the objection, the prosecutor pointed out he
published the photo after the trial court had overruled an objection, only to have defense
counsel make a new objection. To this explanation by the prosecutor, the trial court
replied: “I understand.” Defendants have not demonstrated there was any late disclosure
connected to this exhibit.
(3) D.H.’s testimony that defendants Brown and Miller
possessed firearms.
The prosecutor informed defense counsel that during the lunch break D.H. said he
had seen Miller in possession of a “semiautomatic AK” around the time of the killings,
that D.H. had borrowed this gun (which Miller referred to as a “30-30”), and that he had
seen Brown carrying a “four-five.” The prosecutor immediately informed defense
counsel of this new information. The trial court then held an evidentiary hearing at which
51
D.H. confirmed he had just given this information to the prosecutor during the lunch
break. The court allowed D.H. to testify about his observations.
Brown argues: “[I]t seem[s] unlikely this information was unavailable for
disclosure prior to that point. [D.H.] had been a prosecution witness for some time and
this was crucial information linking the defendants to the shootings.” But mere
speculation that the prosecutor was aware of this information at an earlier time is
insufficient to establish prosecutorial misconduct.
(4) The recording of Miller’s phone call with his mother.
On a Friday, after the lunch break, the trial court held a hearing on the
admissibility of a recorded phone call between Miller and his mother, Earline, which the
prosecutor wanted to use while cross-examining Earline. McLeod’s counsel objected:
“Just because counsel chose not to disclose it until after the lunch hour, he didn’t give it
to us at the beginning of the lunch hour so we could listen to it during the lunch hour.
This is the first I’m hearing . . . the tape. . . . [¶] Yes, I understand under Prop. 115 he
doesn’t have to disclose rebuttal evidence until we present primary evidence, but he
should have had the CD readied for each counsel and take a 15-minute break to listen to
it and have a rational discussion on admissibility.” The trial court ruled the recording
was relevant and could be played for the jury because it went to Earline’s credibility.
The record indicates the prosecutor provided a copy of the recording itself to
Miller’s counsel at the end of the lunch break, but that the recording had not yet been
transcribed. The prosecutor argued the recording was clean and he believed no transcript
would be necessary. He agreed to make additional copies of the recording for Brown and
McLeod before the weekend, and to have the recording transcribed before trial resumed
the following Tuesday. The court ordered Earline to return to court on Tuesday in case
defense counsel wished to question her further about the recording.
Defendants fail to specify how they were harmed by this episode.
52
(5) People’s Exhibit Nos. 196, 197 and 198.
During the cross-examination, the prosecutor showed Miller’s handwriting expert,
Kurt Kuhn, three documents containing Miller’s signature and asked if he had ever seen
them before. Miller’s attorney complained the documents were irrelevant and that no
foundation had been laid. McLeod’s attorney said he hadn’t seen the documents before.
The trial court allowed the prosecutor to show Kuhn the documents. Showing Kuhn
examples of Miller’s signature he had never seen before was relevant to an evaluation of
Kuhn’s expert opinion.
There is no explanation of how this episode harmed the defendants. Both
handwriting experts opined Miller had probably filled out portions of the hospital
registration form.
c. Prosecutor did not present false evidence.
Defendants contend the prosecutor presented false evidence by D.P. The record
shows, however, that D.P. merely gave inconsistent testimony.
On direct examination, D.P. testified she overheard Brown and McLeod laughing
and telling other Nutty Blocc Crips they had obtained a lot of money by “hitting a lick,”
i.e., by robbing someone. D.P. also testified that a few days after the killings Brown
began selling marijuana just like the marijuana Wheeler had been selling. On cross-
examination, D.P. testified she did not know who made the “hit a lick” comment, and that
it had been her roommate, not she, who made the initial purchase of marijuana from
Brown two or three days after the killings.
Other evidence, however, established these were merely testimonial
inconsistencies. D.P. testified her “roommate’s” answer had been incorrect because she
was nervous, and that she herself had purchased marijuana from Brown more than once
after the killings. D.P. testified she told Detective Cochran that she heard Brown and
McLeod “talking about coming up on a good lick.” Detective Cochran testified that
when he interviewed D.P. at the time of the killings she reported overhearing Brown and
McLeod talk about coming up on a good lick.
The record shows D.P. merely gave conflicting testimony, not false testimony.
53
d. Prosecutor did not elicit evidence that had been excluded by
the trial court.
Defendants contend the prosecutor deliberately elicited testimony from D.H. that
the trial court had already excluded. Not so.
The trial court ruled D.H. could not testify someone had shot at his mother’s house
for a reason he suspected was connected to this case. The proceedings paused so the
prosecutor could advise D.H. not to mention the incident, and the trial court heard the
prosecutor give D.H. the admonishment.
The prosecutor subsequently posed this question to D.H.: “[W]hat, if anything, is
making you feel afraid that you’re not giving us 100 percent truthful testimony?”
The witness turned to the judge and asked if he could answer truthfully, and the trial
court responded, “Go ahead, sir.” D.H. then said, “Because I don’t . . . want my house to
get shot up again.” The court struck this answer, but concluded: “[G]iven the fact that I
heard Mr. McKinney [i.e., the prosecutor] talking to Mr. D.H. . . . and telling him not to
mention it, I don’t think there is any misconduct by the prosecutor.”
“ ‘ “It is, of course, misconduct for a prosecutor to ‘intentionally elicit
inadmissible testimony.’ [Citations.]” [Citation.] Such misconduct is exacerbated if the
prosecutor continues to attempt to elicit such evidence after defense counsel has
objected.’ [Citation.] However, a prosecutor cannot be faulted for a witness’s
nonresponsive answer that the prosecutor neither solicited nor could have anticipated.
[Citation.]” (People v. Tully (2012) 54 Cal.4th 952, 1035.)
Brown argues that despite the prosecutor’s admonishment, his “questions
conveyed to D.H. the implication that his disclosure was permissible.” But this assertion
– that the prosecutor must have known D.H. would violate the admonition and, therefore,
purposely sought to elicit the impermissible answer – is mere speculation. The trial court
pointed out the prosecutor’s question seemed to be aimed at the bus incident during
which D.H. had been threatened.
54
e. Prosecutor did not improperly refer to evidence outside the record.
Defendants contend there were several instances in which the prosecutor
improperly referred to evidence outside the record. This claim is meritless.
(1) Comment about playing the entire recording of an interview.
Brown cross-examined D.H. about certain statements he made during a July 2006
interview with Detective Duncan. In response to an objection from the prosecutor, the
trial court asked if the parties would stipulate to having something read from the
interview transcript as had been done the day before. When the prosecutor replied,
“I would stipulate to playing the entire tape so the jury – ,” McLeod’s attorney
interrupted: “Could we not have speaking objections and commentary?” At sidebar,
defense counsel asked the trial court to admonish the prosecutor for misconduct on the
ground the comment would cause the jury to think the defense was trying to hide
something.
The trial court determined there had been no misconduct. The court said it was
not inappropriate for the prosecutor to have responded “to the court’s prompt” and, given
the cross-examination of D.H., “it seems that most if not all” of the taped interview
would come in, although the court would have preferred if the prosecutor had referred to
playing the “appropriate or relevant . . . part of the tape” rather than “the entire tape.”
The trial court then asked all the parties to “speak thoughtfully when you say things on
both sides so we have less of these type of discussions here at sidebar.”
Ultimately, a redacted version of D.H.’s July 2006 interview was played for the
jury. Defendants fail to explain how they were prejudiced by this episode.
(2) Arguing about D.H.’s probation having been violated.
Defendants contend the prosecutor committed misconduct during closing
argument by referring to evidence he himself had gotten the trial court to exclude. The
issue concerned whether D.H. had been facing a probation violation hearing when he met
with police in July 2006, and therefore whether he believed he could personally benefit
by giving them inculpatory information.
55
Detective Duncan and his partner, Sergeant Levins, interviewed D.H. on July 31,
2006. Toward the end of the interview, Levins mentioned having explained to D.H. that
the officers would inform the District Attorney’s Office about his cooperation “for
consideration in your probation violation arrest.” D.H., however, testified he did not
recall facing a probation violation hearing when Duncan and Levins interviewed him in
July 2006. Duncan testified he did not think D.H. had been facing a probation violation
hearing at the time and that he didn’t know why Levins made this comment. During
cross-examination, defense counsel showed Duncan a court document indicating he had
testified at D.H.’s probation violation hearing, and counsel asked if this refreshed his
recollection. Duncan testified it did not. The trial court subsequently redacted most of
the information in this court document, including the date the hearing had been set, but
the court left the hearing date itself unredacted.
During closing arguments, defense counsel cited this document while arguing
Duncan had lied when he said he did not recall testifying at D.H.’s probation violation
hearing. In response, the prosecutor argued the court document showed the hearing had
taken place in October 2006, not in July or August, which was consistent with D.H.’s
testimony that he had not been facing a probation violation hearing when he was
interviewed in July 2006. Defendants contend this argument by the prosecutor
constituted misconduct because it relied on evidence the prosecutor had able to exclude,
viz., the date when D.H.’s October 2006 probation violation hearing had been set.
Although it is improper for a prosecutor to tell the jury there is no evidence to
support a defense point if it was the prosecutor who managed to have the evidence
excluded (see, e.g., People v. Varona (1983) 143 Cal.App.3d 566, 568-570), that is not
what happened here. The prosecutor told the jury this court document showed the
probation violation hearing occurred in October, well after D.H.’s July police interview.
The prosecutor never mentioned the absence of information regarding the setting date.
When the trial court rejected defense counsel’s request to have the jury informed the
prosecutor had committed misconduct by “specifically [arguing] a fact he excluded,” the
56
court disagreed, saying that is not what happened. We agree. This episode did not
constitute prosecutorial misconduct.
(3) People’s Exhibit No. 197.
During a sidebar conference regarding the admissibility of People’s exhibit
No. 197, apparently a sample of Miller’s signature which the prosecutor wanted to show
to a defense handwriting expert, a defense attorney asked “What is the relevance?”, to
which the prosecutor said: “Because it is his signature.” A different defense attorney
said, “I think the jury heard that.” Defendants contend this constituted prosecutorial
misconduct. Miller argues, “By raising his voice, it was unlikely [the prosecutor] was not
heard by some member of the jury.”
There was no prosecutorial misconduct. The prosecutor’s statement was a direct
answer to the trial court’s question asking why the exhibit was relevant, and the record
does not show the jurors heard what the prosecutor said.
f. Prosecutor did not engage in improper vouching.
Defendants contend the prosecutor improperly vouched for himself and for certain
witnesses. “[I]t is misconduct for prosecutors to vouch for the strength of their cases by
invoking their personal prestige, reputation, or depth of experience, or the prestige or
reputation of their office, in support of it. [Citations.]” (People v. Huggins (2006)
38 Cal.4th 175, 206-207.) However, “Prosecutorial assurances, based on the record,
regarding the apparent honesty or reliability of prosecution witnesses, cannot be
characterized as improper ‘vouching,’ which usually involves an attempt to bolster a
witness by reference to facts outside the record. [Citation.]” (People v. Medina (1995)
11 Cal.4th 694, 757.)
(1) Detective Cochran’s testimony about the jail bus.
Defendants contend the prosecutor improperly injected himself during a portion of
Detective Cochran’s testimony. There was a question at trial about the internal
configuration of the jail bus D.H. had been riding when Miller threatened him. Cross-
examination of Cochran revealed the prosecutor himself had taken photographs of several
jail buses. During redirect examination, Cochran explained the chain of events leading
57
up to the prosecutor taking these photographs. Brown’s attorney argued this
constituted improper vouching, but the trial court disagreed with this characterization,
saying: “It is not vouching. It is something else.”
The trial court was right. Cochran testified he had been asked by the prosecutor to
photograph the internal configuration of the jail buses. After Cochran notified the
prosecutor there were different configurations, the prosecutor went to the bus yard and
took his own photographs. Cochran testified he and the prosecutor then discussed what
they had found. Defendants argue the prosecutor was improperly acting like a witness.
But their reliance on United States v. Prantil (9th Cir. 1985) 764 F.2d 548, is misplaced.
In that case, the prosecutor played an active role in the circumstances of the alleged
crime, but then refused to either testify or recuse himself. Here, the prosecutor offered to
testify even though, unlike the prosecutor in Prantil, he lacked knowledge of any facts
vital to the defense. There was no improper vouching.
(2) Comments during closing argument.
Defendants cite several instances from the prosecutor’s closing argument which
they contend constituted improper vouching. We disagree.
In discussing D.H.’s testimony, the prosecutor described D.H. as a witness who
“came across as authentic and genuine and real. He didn’t exaggerate anything. He just
told it to the best of his recollection.” Defendants did not object to these specific
statements. A few moments later, however, Brown complained the prosecutor “was
testifying” when he argued D.H. had been “trying to distance himself from the gang he
said for the last couple of years” and “I think . . . the evidence has shown that he’s trying
to take his life in a different direction. And redemption for him starts with honesty even
if it hurts. I think it did hurt him to testify especially against . . . Jeffrey McLeod.” But
none of these statements constituted improper vouching. (See People v. Stansbury (1993)
4 Cal.4th 1017, 1059, reversed on other grounds by Stansbury v. California (1994)
511 U.S. 318 [114 S.Ct. 1526] [“The argument that Allen was a believable witness who
had done a great deal of soul searching was a proper comment on the evidence, not an
attempt on the part of the prosecutor to personally vouch for the witness’s credibility.”].)
58
While discussing S.T.’s testimony, the prosecutor contrasted her agreement to tell
the truth about anything she was asked in court with Miller’s unwillingness to answer
questions about the Nutty Blocc Crip gang, saying: “[A]nd I don’t blame him.”
When Brown argued the prosecutor was giving his personal opinion, the trial court
properly overruled the objection. While strictly speaking it might have been better had
the prosecutor said “You can’t blame him,” the jury was unlikely to conclude the
prosecutor was personally vouching for Miller’s lack of credibility.
(3) S.T.’s interview with a different prosecutor.
During S.T.’s cross-examination, Brown asked about statements a different
prosecutor had made to her in a November 2007 interview. Defense counsel asked:
“Do you remember the District Attorney . . . asking you to figure out what exactly it is
that you want. [¶] And then saying [if] we go to trial on a case like this and the jury
knows you’re facing life, that he was concerned you might say anything.” Defense
counsel also asked: “Do you remember him making a statement, ‘I don’t want to make it
look like we’re just going to give you anything you want.’ ” S.T. did not recall these
statements until she was shown the transcript. In response, the prosecutor introduced
additional portions of the interview, including the other prosecutor’s statement: “[I]n
reality . . . I’m not trying to put the wrong people in custody for things. I want to make
sure and so I don’t want to make it look like we’re just going to give you anything you
want.”
Miller argues this was misconduct because the prosecutor “boosted the credibility
of his office by disclosing to the jury the self-serving statement by another prosecutor and
used his witness to convey to the jury how diligent and credible he was in trying the
case.” We disagree. The additional interview passages were relevant for context, to
rebut an implication the prosecution was willing to do anything to get a conviction, and to
assist the jury in judging S.T.’s credibility.
59
g. Allegedly eliciting sympathy for the victim.
“We have settled that an appeal to the jury to view the crime through the eyes of
the victim is misconduct at the guilt phase of trial; an appeal for sympathy for the victim
is out of place during an objective determination of guilt. [Citations.]” (People v.
Stansbury, supra, 4 Cal.4th at p. 1057.)
Defendants contend the prosecutor improperly elicited sympathy for Nakia
Wheeler during closing argument, citing People v. Vance (2010) 188 Cal.App.4th 1182.
But the objectionable conduct in that case went far beyond anything that happened here.
The Vance prosecutor expressly urged the jurors to “walk in [the victim’s] shoes,” and
“literally relive in your mind’s eye and in your feelings what [the victim] experienced the
night he was murdered.” (Id. at p. 1194.) Here, by contrast, the prosecutor made
relatively innocuous remarks about Wheeler’s being a likable marijuana dealer who
might have matured to pursue some legitimate line of work had he not been killed.
Brown argues the prosecutor committed misconduct “[b]y telling jurors that those
who knew Nakia could now only view him in two-dimensional images [because] the
prosecutor was in effect asking them to expand their empathy to the suffering of the
victim’s family and all who remembered Nakia.” However, the “two-dimensional”
comment had no such implication. The prosecutor told the jury: “But we'll never know
if Nakia would have matured beyond where he was in life when he was killed. And the
reason we'll never know is because these men destroyed his life. That is Nakia Wheeler
from now on. That is Michael Leggette from now on. From now on, for eternity, they
are photographs. They are no longer real people like I am standing here in front of you, a
real person. From now on, that is all they are, two-dimensional photographs. Whenever
they are talked about from now on, it is not going to be about the future. It is going to be
about the past.” The prosecutor was merely emphasizing to the jury, in a very dramatic
fashion, that the two victims were forever dead.
60
h. Allegedly casting aspersions on the defense.
Part of the defense case was an attempt to paint Wheeler as a member of the Nutty
Blocc Crips. According to the prosecutor, the defendants wanted “to dehumanize
[Wheeler] or to make you care less that he was killed.” To rebut this alleged gang
connection, the prosecutor argued Wheeler had no gang tattoos, did not appear in any
gang photographs, and neither his family, his friends nor the police believed he belonged
to a gang. The prosecutor then said if defendants wanted to argue that the presence of a
few gang members’ phone numbers in Wheeler’s cell phone address book made him a
gang member “then I will let them make that argument with a straight face.”
Defendants contend this improperly cast aspersions on the defense. “Although
counsel have broad discretion in discussing the legal and factual merits of a case
[citation], it is improper . . . to resort to personal attacks on the integrity of opposing
counsel [citation].” (People v. Bell (1989) 49 Cal.3d 502, 538.) Here, the prosecutor’s
comment did not cast aspersions on the defense. It was a legitimate comment on the
evidence and “no more than sarcastic hyperbole identifying what the prosecutor believed
to be weakness in the defense explanation of the events.” (People v. Cummings (1993)
4 Cal.4th 1233, 1303, fn. 48.) The prosecutor’s comment was not “likely to have been
construed by the jury as an attack on defense counsel’s personal integrity. The
prosecution’s remarks were likely interpreted as ‘an admonition not to be misled by the
defense interpretation of the evidence, rather than as a personal attack on defense
counsel.’ [Citation.]” (People v. Spector (2011) 194 Cal.App.4th 1335, 1406.)
i. Allegedly misstating the burden of proof.
“[I]t is improper for the prosecutor to misstate the law generally [citation], and
particularly to attempt to absolve the prosecution from its prima facie obligation to
overcome reasonable doubt on all elements [citation].” (People v. Marshall, supra,13 Cal.4th at p. 831.) Defendants contend the prosecutor did that here. We disagree.
Defendants rely principally on People v. Katzenberger (2009) 178 Cal.App.4th
1260, which concluded: “The prosecutor’s use of an easily recognizable iconic image
[a puzzle coming together to form the Statue of Liberty] along with the suggestion of
61
a quantitative measure of reasonable doubt [by saying six out of eight puzzle pieces
was sufficient to convict] combined to convey an impression of a lesser standard of
proof than the constitutionally required standard of proof beyond a reasonable doubt.”
(Id. at p. 1268, fn. omitted.) But that is not what took place here.
The prosecutor here did not discuss reasonable doubt during the initial position of
closing argument. Then defense counsel for Brown, citing Detective Duncan’s
acknowledgment that he did not know of any gang member who would provide
100 percent truthful information, argued: “[D]on’t you need 100 percent truthful
information? Don’t you need that information to determine beyond a reasonable doubt
that my client committed these crimes . . . ?” Defense counsel also apparently showed
the jury a chart purporting to delineate levels of certainty less than reasonable doubt.
It was this chart that triggered the prosecutor’s remarks to which defendants
object: “And, finally, reasonable doubt. Mr. Higgins had that colorful chart. I think it is
still up there. I have seen every form of that chart over the years. The purpose of the
chart is to suggest to you that no case could ever be proved because they have all these
levels with reasonable doubt at the top, all these levels to get there like it is impossible to
prove. And I have seen it . . . as a sky scraper, I have seen it as a thermometer, I have
seen it as a space shuttle with beyond reasonable doubt up in space. [¶] The best
description of reasonable doubt that I have heard – and, of course, the jury instruction is
the definition of it. But a person once said . . . if you believe it, then it’s true. The case is
proven if you believe it. If you believe it, then it’s true.”
After a defense objection was overruled by the trial court, the prosecutor
continued: “It is not a mere possible doubt because everything relating to human affairs
is open to some possible or imaginary doubt. It is that state of the case that leaves you
after you consider all of the evidence with an abiding conviction of the truth of the
charge. That is what it means. [¶] The lawyers I think fairly talked about the fact it is
not something that you think is true today but you might not think is true tomorrow.
It is something that you think is true today and based on the evidence that you heard in
62
the trial you can say tomorrow, next week, next year, based on the evidence that I heard,
[it’s] true. Based on the evidence that you heard in this case, it’s true.”
Before talking about reasonable doubt, the prosecutor had told the jury: “Now, the
judge has already instructed you on the law. The instructions are paramount. They
prevail.” Right before describing the concept of reasonable doubt as “if you believe it,
then it’s true,” the prosecutor had said: “[T]he jury instruction is the definition of it.”
In addition, the trial court instructed jurors: “You must follow the law as I explain it to
you, even if you disagree with it. If you believe that the attorneys’ comments on the law
conflict with my instructions, you must follow my instructions.”
After closing argument was done, defendants asked the trial court to instruct the
jury that “the definition of reasonable doubt is not what you believe” because “[t]hat
implies a standard of preponderance of the evidence.” In denying the request, the trial
court pointed out: “[B]oth sides in all cases and in particular in this case used rhetorical
devices to explain the proof process. The jury has been instructed as to what the standard
of proof is. All counsel referred to it. Ultimately the instructions will guide the jurors,
and the court finds no misconduct from either side here.”
The trial court did not err. The prosecutor’s “if you believe it, it’s true” statement
was embedded within a discussion of the concept of “abiding conviction,” and included
an assertion that “the jury instruction is the definition of it.” We do not think the jurors
believed the prosecutor was saying each one of them had the right to make up their own
definition of “truth beyond a reasonable doubt.”
15. Defendants were not entitled to voluntary manslaughter instructions.
Defendants contend the trial court erred by not instructing the jury on voluntary
manslaughter. This claim is meritless.
a. Legal principles.
A trial court must instruct on a lesser included offense if there is sufficient
evidence to support a finding by the jury that the lesser offense was committed rather
than the greater. (People v. Breverman (1998) 19 Cal.4th 142, 154-163.) That evidence
63
must be of some weight, however, because the existence of “ ‘any evidence, no matter
how weak’ ” will not justify instructions on lesser offenses. (Id. at p. 162.)
“An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’
(§ 192(a)), and is thus voluntary manslaughter [citation], if the killer’s reason was
actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to
cause an ‘ “ordinary [person] of average disposition . . . to act rashly or without due
deliberation and reflection, and from this passion rather than from judgment.” ’
[Citations.] ‘ “[N]o specific type of provocation [is] required . . . .” ’ [Citation.]
Moreover, the passion aroused need not be anger or rage, but can be any ‘ “ ‘[v]iolent,
intense, high-wrought or enthusiastic emotion’ ” ’ [citation] other than revenge
[citation].” (People v. Breverman, supra, 19 Cal.4th at p. 163, italics added.)
“The provocative conduct by the victim may be physical or verbal, but the conduct must
be sufficiently provocative that it would cause an ordinary person of average disposition
to act rashly or without due deliberation and reflection.” (People v. Lee (1999)
20 Cal.4th 47, 59.)
Thus, “[t]he heat of passion requirement for manslaughter has both an objective
and a subjective component. [Citation.] The defendant must actually, subjectively, kill
under the heat of passion. [Citation.] But the circumstances giving rise to the heat of
passion are also viewed objectively. As we explained long ago . . . ‘this heat of passion
must be such a passion as would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances,’ because ‘no defendant may
set up his own standard of conduct and justify or excuse himself because in fact his
passions were aroused, unless further the jury believe that the facts and circumstances
were sufficient to arouse the passions of the ordinarily reasonable man.’ [Citation.]”
(People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.)
64
b. Discussion.
On the night of the killings, Wheeler’s neighbor heard him arguing with three or
four people during a confrontation on Wheeler’s driveway. The neighbor could not hear
what was said. The neighbor then heard a gunshot, the sounds of someone running, and
more gunshots. Based on this testimony that an argument occurred just before the
shootings, Brown and McLeod asked the trial court to instruct the jury on voluntary
manslaughter.11 The trial court ruled there was no substantial evidence warranting the
instruction.
The trial court did not err. There was no evidence to prove either component of
voluntary manslaughter. The evidence showed only a brief argument, of unknown origin
and substance, followed by the shooting of two unarmed men from behind. This
evidence did not provide any basis for a reasonable jury to conclude the victims had done
anything to provoke the defendants, that the defendants’ reason had been obscured by
strong passions, or that reasonable persons would have reacted similarly.
Moreover, the jury verdicts were inconsistent with a finding of voluntary
manslaughter. “Error in failing to instruct the jury on a lesser included offense is
harmless when the jury necessarily decides the factual questions posed by the omitted
instructions adversely to defendant under other properly given instructions. [Citation.]”
(People v. Lewis (2001) 25 Cal.4th 610, 646.) If the jury convicted Brown and McLeod
of premeditated and deliberate murder, a voluntary manslaughter verdict was ruled out.
(See People v. Wharton (1991) 53 Cal.3d 522, 572 [“By finding defendant was guilty of
first degree murder, the jury necessarily found defendant premeditated and deliberated
the killing. This state of mind, involving planning and deliberate action, is manifestly
inconsistent with having acted under the heat of passion . . . and clearly demonstrates that
defendant was not prejudiced by the failure to give his requested instruction.”].) The
same result is reached if the jury convicted Brown and McLeod of felony murder because
11 Miller declined to join this request.
65
“ ‘predictable conduct by a resisting victim’ is not the type of provocation that reduces a
murder charge to voluntary manslaughter.” (People v.Thomas (2012) 53 Cal.4th 771,
813.)
16. There was no cumulative error.
Defendants contend their convictions should be reversed on the ground of
cumulative error. Because we have found no errors, this claim of cumulative error fails.
(See People v. Seaton (2001) 26 Cal.4th 598, 639; People v. Bolin (1998) 18 Cal.4th 297,
335.)
17. Trial court properly denied Miller’s request for re-appointment of counsel.
Miller contends the trial court erred by refusing to re-appoint counsel for him after
he initially exercised his right to self-representation when the verdicts were returned.
This claim is meritless.
a. Background.
Miller represented himself at the preliminary hearing with Paul Cohen serving as
standby counsel. After the preliminary hearing, Cohen was appointed to represent Miller
and he served as Miller’s counsel throughout the trial. On November 22, 2010, 10 days
after Miller was convicted, the trial court granted his request under Faretta v. California
(1975) 422 U.S. 806 [95 S.Ct. 2525] to again represent himself for purposes of making a
new trial motion and for sentencing.
On February 18, 2011, Miller asked the trial court to appoint Cohen as his
cocounsel, which the court declined to do. Instead, the court offered to reappoint Cohen
to represent Miller, an offer Miller declined. At the same hearing, the trial court denied
Miller’s motion to order a psychiatric evaluation. In response to Miller’s claim he did not
understand the nature of the charges against him, the trial court said it appeared Miller
was perfectly competent, remarking: “Mr. Miller, you don’t have to play that game with
me. You have understood the entire proceedings throughout this whole trial.”
66
On March 9, 2011, the trial court denied Miller’s motion for a new trial and then
sentenced him. That morning, the trial court had received a written motion Miller filed
the previous day. This motion claimed Miller was incompetent, asked for counsel to be
appointed on the ground he did not understand the proceedings, and challenged the
validity of his convictions on various grounds. The trial court denied that motion too.
Miller now claims the trial court erred by denying his request for reappointment of
counsel.
b. Legal principles.
A trial court has discretion to grant or deny a subsequent request to revoke a
Faretta waiver and have counsel reappointed. “When a criminal defendant who has
waived his right to counsel and elected to represent himself under Faretta . . . seeks,
during trial, to revoke that waiver and have counsel appointed, the trial court must
exercise its discretion under the totality of the circumstances, considering factors
including the defendant’s reasons for seeking to revoke the waiver, and the delay or
disruption revocation is likely to cause the court, the jury, and other parties.” (People v.
Lawrence (2009) 46 Cal.4th 186, 188.) “[A] trial court should consider, along with any
other relevant circumstances, ‘(1) defendant’s prior history in the substitution of counsel
and in the desire to change from self-representation to counsel-representation, (2) the
reasons set forth for the request, (3) the length and stage of the trial proceedings,
(4) disruption or delay which reasonably might be expected to ensue from the granting of
such motion, and (5) the likelihood of defendant’s effectiveness in defending against the
charges if required to continue to act as his own attorney.’ [Citation.]” (Id. at p. 192.)
c. Discussion.
We conclude the trial court did not abuse its discretion by denying Miller’s request
to have counsel reappointed because the court reasonably concluded he was purposely
trying to manipulate the proceedings.
67
The court indicated on February 18 that Miller was playing games when he
claimed not to understand the charges against him and sought a psychiatric examination.
At the March 9 hearing, the trial court recounted the history leading up to Miller’s request
that morning for reappointment of counsel, noting it had previously denied his post-
verdict motion “that you are not competent for purposes of representing yourself and you
have never been competent. We’re not revisiting that motion again today.”
At the February 18 hearing, Miller told the trial court: “I’m still confused about a
lot of things. The nature of the cause against me. Nothing has come across my face to
show me . . . what’s happening, why am I being held liable.” In response to Miller’s
request for a psychiatric examination, the trial court said: “There is no evidence of any
incompetence on your part. In fact, there is a lot of evidence that you are competent.”
After the court told Miller he would be brought back on March 9 for sentencing, the
following colloquy occurred:
“Defendant Miller: I have a question. I have a question. My question is
according to my 6th Amendment right . . . I am to be told the nature of the cause.
And so I’m asking the court is this . . . a criminal action?
“The Court: Mr. Miller, okay. Mr. Miller, you don’t have to play that game with
me. You have understood the entire proceedings throughout this whole trial. Throughout
the entire trial you . . . have understood everything very clearly. So much so you raised
more issues perhaps than your attorney did regarding the accusation, and the witnesses
against you, and the nature of the proceedings. You understood them quite clearly.”
Miller’s handwritten motion asking for appointment of counsel, which the trial
court reviewed prior to the March 9 hearing, demonstrates he was still playing games
three weeks later. The motion begins by saying: “I have no understanding how to defend
myself in a jurisdiction that does not lawfully exist.” Miller then introduces a long, tax
protester-like rant attacking the validity of the judicial system. He references
“commercial transactions made under the ‘Negotiable Instrument Law’ as a result of the
U.S. Bankruptcy as declared by President Roosevelt on March 9, 1933,” and asserts that
“today all our courts sit as non-constitutional-non-Article III Legislative tribunals”
68
He ends by asking the trial court to appoint “competent lawfully [sic] representation
because although my interest is greatest I am incapacitated mentally to understand the
measure of discretionary justice.”
Then all of a sudden, at the March 9 hearing, Miller became extremely articulate
and well-reasoned while orally raising a whole series of alleged trial errors, including
ineffective assistance of counsel, prosecutorial misconduct, his inability to cross-examine
one of his codefendants, judicial misconduct for showing prospective jurors the Bundy
photograph, and juror misconduct. As an example, Miller argued there had been juror
misconduct because of an inappropriate contact between a victim’s family and the jury:
“And I also feel by the . . . foreman . . . and one of the alternates talking to the victim’s
family outside the courtroom that the court should have asked what was the . . subject
matter of that conversation. Because . . . juror No. 3, did end up being the foreman.
And No. 2 did end up staying on the jury. By them talking to the victim’s family outside
in the hallway, we never know – we can’t revisit those facts and what really transpired.
So I feel like that terribly – it hurt me and prejudiced me.”
We agree with the Attorney General that “Miller’s actions in February and March,
both in court and in his written filings, showed that he was attempting to manipulate the
right to counsel for an improper purpose. The court was, therefore, under the totality of
the circumstances, entitled to exercise its discretion and deny Miller’s request to delay the
case so he could have counsel reappointed to represent him.”
18. Sentencing errors and clerical errors in abstract of judgment
must be corrected.
As the Attorney General properly acknowledges, the trial court committed several
sentencing errors and the abstracts of judgment appear to contain several clerical errors.
We will order these mistakes corrected. An unauthorized sentence may be corrected at
any time (see People v. Gisbert (2012) 205 Cal.App.4th 277, 282; People v. Sanders
(2012) 55 Cal.4th 731, 743, fn. 13), and it is proper and important to correct clerical
errors in abstracts of judgment (People v. Mitchell (2001) 26 Cal.4th 181, 185).
69
Each defendant was sentenced to two terms of life without possibility of parole
(LWOP) to be served concurrently. The trial court erred by ordering Brown and McLeod
to serve, in addition to their LWOP sentences, two consecutive 25-years-to-life terms for
firearm-use enhancements (§ 12022.53, subd. (d)). Because their LWOP sentences were
to be served concurrently, the firearm enhancements for those convictions must also be
served concurrently, rather than consecutively. A defendant “cannot be punished for the
enhancement separately from the underlying offense.” (People v. Smith (1985)
163 Cal.App.3d 908, 914; see People v. Mustafaa (1994) 22 Cal.App.4th 1305, 1311
[“The personal gun-use enhancements to which [Mustafaa] admitted were not separate
crimes and cannot stand alone. Each one is dependent upon and necessarily attached to
its underlying felony. In separating the felony and its attendant enhancement by
imposing a concurrent term for the felony conviction and a consecutive term for the
enhancement the court fashioned Mustafaa’s sentence in an unauthorized manner under
the sentencing procedure.”].)
The abstracts of judgment for McLeod and Brown should be corrected to clearly
reflect that both the LWOP terms and the accompanying firearm enhancements are to be
served concurrently.
As to Brown and McLeod, the trial court also erred by imposing $10,000 parole-
revocation fines under section 1202.45. These fines were inapplicable because the
defendants were not sentenced to any determinate terms. (See People v. Oganesyan
(1999) 70 Cal.App.4th 1178, 1181-1182 [it was error to impose parole-revocation fine on
defendant sentenced to term of life without possibility of parole on one count and
indeterminate term on second count]; cf. People v. Brasure (2008) 42 Cal.4th 1037, 1075
[it was not error to impose parole-revocation fine on capital defendant who was also
sentenced to determinate prison term on other counts].)
As to Miller, his abstract of judgment does not reflect that the trial court ordered
his two LWOP terms to be served concurrently.
70
DISPOSITION
The judgments are affirmed as modified. The sentences for Brown and McLeod
are hereby modified as follows: the parole-revocation fines are vacated, and the firearm
use enhancements are ordered to be served concurrently to each other rather than
consecutively. The trial court is directed to prepare and forward to the Department of
Corrections and Rehabilitation amended abstracts of judgment for all three defendants,
reflecting these modifications and correcting the clerical errors noted ante.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KLEIN, P. J.
We concur:
CROSKEY, J.
ALDRICH, J.
71