People v. Burton CA2/4 ( 2021 )

Filed 10/8/21 P. v. Burton CA2/4
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B293825
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA068747)
v.
CEDRIC CARL BURTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Charles A. Chung, Judge. Affirmed.
Randy S. Kravis, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Senior Assistant Attorney General, Jaime L. Fuster and
Joseph P. Lee, Deputy Attorneys General, for Plaintiff and
Respondent.
______________________________________________
INTRODUCTION
Appellant Cedric Burton was convicted of murdering
Brandy Houston by means of lying in wait. At trial, the only
disputed issue was appellant’s identity as Houston’s killer,
who had been captured on video waiting at the sidelines of a
fistfight before approaching Houston, drawing a concealed
gun from his hoodie, and repeatedly shooting. Houston’s
murder was witnessed by his nephew Dyjahn and his sisters
Lakeisha and Chrishonda. Lakeisha identified appellant as
the shooter in court, and Dyjahn identified appellant as the
shooter in a photographic six-pack, which was admitted into
evidence after Dyjahn claimed at trial to be unable to
identify the shooter. The trial court allowed the prosecution
to introduce evidence that an unknown party had created a
social media page describing Dyjahn as a snitch, with
reference to a date on which he and his mother Chrishonda
were scheduled to testify. Chrishonda, who testified that
this page frightened her, failed to identify anyone as the
shooter.
One of the shooter’s accomplices, Denelle Wilson,
identified the shooter as “Daredevil,” an Atlantic Drive
Compton Crips member with devil horns tattooed on his
forehead. Appellant, who operates a social media account
under the name “TG Dirty Devil,” has devil horns tattooed
2
on his forehead and the initials of the Atlantic Drive
Compton Crips tattooed on his forearm. Wilson mentioned
that his sister had heard from an unidentified girl that a
man with a devil-horns tattoo had killed someone. He
further mentioned that Randy Sullivan (another accomplice)
had told him in 2012 that Daredevil had recently been
released from a prison sentence on a murder charge. Before
trial, over defense counsel’s objection on unspecified grounds,
the court granted the prosecution permission to introduce
evidence that appellant had been charged in 2003 with
attempted murder and assault with a firearm, had pleaded
guilty to the firearm-assault charge, and had been sentenced
to four years in prison. The parties so stipulated. They
further stipulated that Sullivan was an unavailable witness,
allowing the jury to hear his preliminary hearing testimony
confirming that he had written to the court that the shooter
had been arrested on the date of appellant’s arrest.
Appellant neither testified nor presented evidence. In
closing argument, his counsel effectively conceded that the
prosecution had proved he was present at the scene of the
shooting, but argued that the identifications of appellant as
the shooter were unreliable. The court instructed the jury,
per CALJIC No. 2.92, that an eyewitness’s degree of
certainty in making an identification is one of 11 non-
exhaustive factors relevant to the identification’s reliability.
The jury convicted appellant of Houston’s murder and found
true the allegation that the murder had been committed by
means of lying in wait.
3
On appeal, appellant contends: (1) no substantial
evidence supported the jury’s true finding on the
lying-in-wait special circumstance allegation; (2) the trial
court prejudicially erred in admitting evidence of the social
media page describing Dyjahn as a snitch; (3) the court
prejudicially erred in admitting Wilson’s secondhand
description of Daredevil’s criminal history, along with
appellant’s own prior conviction and sentence (or his trial
counsel was ineffective for failing to properly object to this
evidence); (4) his counsel was ineffective for failing to
properly object to Wilson’s secondhand report of an
unidentified girl’s statement that a man with a devil-horns
tattoo had killed someone; (5) the court violated his due
process rights by instructing the jury that the certainty of an
eyewitness identification is relevant to its reliability; and (6)
he was prejudiced by the cumulative effect of the asserted
errors.
In an initial opinion affirming the judgment, we
concluded: (1) substantial evidence supported the lying-in-
wait special circumstance finding; (2) each of appellant’s
evidentiary challenges is without merit or forfeited; (3) the
asserted deficiencies of appellant’s trial counsel were not
prejudicial; and (4) the jury instruction on eyewitness
certainty did not violate appellant’s due process rights. In
rejecting appellant’s due process challenge to the eyewitness-
certainty instruction, we considered ourselves bound by our
Supreme Court’s approval of CALJIC No. 2.92’s certainty
factor in People v. Sánchez (2016) 63 Cal.4th 411. We noted
4
that the Supreme Court was then reconsidering the due
process implications of the certainty factor in People v.
Lemcke (2021) 11 Cal.5th 644 (Lemcke).
After we issued our opinion, the Supreme Court
granted review and deferred further action pending its
decision in Lemcke. In May 2021, the court issued its
decision in Lemcke, holding that on the record before it, the
inclusion of the certainty factor in the jury instructions had
not violated the defendant’s due process rights. (Lemcke,
supra, 11 Cal.5th at 654-661.) Nevertheless, the court
exercised its supervisory powers to direct trial courts to omit
the certainty factor from CALCRIM No. 315 (which it
deemed materially identical to CALJIC No. 2.92), unless the
defendant requests otherwise, pending reevaluation of the
factor by the Judicial Council. (Id. at 647-648, 656, fn. 6,
668-669.) The court subsequently transferred this matter to
us, with directions to vacate our prior opinion and reconsider
the cause in light of Lemcke. The parties filed supplemental
briefs. In appellant’s, he concedes that his due process claim
appears to lack merit under Lemcke.
As discussed below, we agree that appellant’s due
process claim fails under Lemcke and thus adhere to our
conclusion that his due process rights were not violated by
the inclusion of the certainty factor in CALJIC No. 2.92.
Accordingly, we affirm the judgment.
5
PROCEEDINGS BELOW
A. Prosecution Case
The state charged appellant with Houston’s murder
(Pen. Code, § 187, subd. (a); count one) and with six counts of
being a felon in possession of a firearm (id., § 29800, subd.
(a)(1); counts two through seven). It alleged that appellant
committed the murder by means of lying in wait (id., § 190.2,
subd. (a)(15)) for the benefit of, at the direction of, and in
association with a criminal street gang (id., § 186.22, subd.
(b)). It further alleged, for sentencing purposes, that
appellant had been convicted in February 2004 of assault
with a firearm (id., § 245, subd. (a)(2)).
After a first trial, held in April 2018, ended in a
mistrial, appellant was retried in September 2018.
1. The Shooting
The prosecution called Houston’s nephew Dyjahn (14
years old at the time of the shooting) and two of Houston’s
sisters, Lakeisha and Chrishonda. Houston’s relatives
testified to the following sequence of events on the day of the
shooting (November 29, 2012): They attended a gathering at
Houston’s mother’s apartment, along with Houston and his
girlfriend. Houston argued with his girlfriend, who called
her sister to ask for a ride elsewhere. The sister evidently
passed this request along to her boyfriend Terrell Henderson,
who arrived at the apartment with his brother Randy
Sullivan and his cousin Joshua Lockett. These three men
argued with Houston and Dyjahn. Sullivan referenced the
6
Southside Compton Crips, a gang, and Chrishonda retorted
that she knew people from a rival gang. Henderson,
Sullivan, and Lockett eventually left, saying they would be
back.
Houston and Dyjahn then went to a liquor store down
the street, followed soon thereafter by Lakeisha and
Chrishonda. The sisters met Houston and Dyjahn
(accompanied by some friends) in front of an apartment
complex across the street from the liquor store. Henderson,
Sullivan, and Lockett reappeared at the complex’s gate,
accompanied by two other men. A member of this group
challenged Houston’s group to a fight, and a fistfight broke
out.
Cell phone video captured by bystanders (played for
the jury and admitted into evidence) showed the fistfight in
progress. A man in a black hoodie emerged from the
sidelines and walked toward Houston, passing the
combatants. When near Houston, he pulled a gun from his
hoodie and repeatedly shot Houston. Houston sustained 12
gunshot wounds, three of which were fatal.
2. Lakeisha’s In-Court Identification
Lakeisha identified appellant as the shooter at trial.
She testified that she did not participate in the fistfight,
instead watching it from about 16 feet away. Houston “was
basically like in the midst of everyone’s fight,” but appellant
was not. As the fight was in progress, appellant remained at
the gate through which he and his companions had come,
7
and “never moved really from where the gate was at.” He
was wearing a hoodie and a face covering (from the nose
down). Eventually, Lakeisha heard a gunshot and looked up
to see appellant approaching Houston and repeatedly
shooting him.
The parties stipulated that a detective was deemed to
have testified that Lakeisha was taken to view Henderson,
Sullivan, and Lockett on the day of the shooting; that she
initially said she believed Lockett was the shooter; and that
upon taking a closer look at Lockett and recalling the
incident, she said that he, Henderson, and Sullivan were all
present at the shooting but none was the shooter.
3. Dyjahn’s Six-Pack Identification
Dyjahn made no in-court identification of appellant --
or anyone else -- as the shooter. He confirmed that
Henderson, Sullivan, and Lockett reappeared near the liquor
store with additional companions, and testified, “A fist fight
broke out and the next thing you know you hear gunshots.”
Though he initially claimed not to remember seeing a man in
a black hoodie, he later testified that he saw such a man
shooting Houston. He claimed on cross-examination that he
did not see the shooting because he was fighting.
Dyjahn confirmed that on the day of the shooting, the
police took him somewhere to view some men, and he told
the police that those men had been present at the fight, but
none of them was the shooter. He further confirmed that the
police later showed him photographic six-packs on two
8
occasions. On the first occasion, he made no identification.
On the second, he identified appellant as the shooter.1
The parties stipulated that a detective was deemed to
have testified that during an interview several months after
the shooting, Dyjahn said that he had seen Lockett holding a
gun before and after the shooting, but that neither Lockett,
Henderson, nor Sullivan was the shooter.
4. Chrishonda’s Fear of Testifying
Chrishonda testified that she did not want to testify,
and that she was scared. She explained she had seen a
social media page that used a photograph of her son Dyjahn
alongside the name “snitch Dayday” (Dayday was Dyjahn’s
nickname). The creator of this page had posted a comment
welcoming readers to see Dyjahn “snitch” in court on a
specified date -- the same date on which Dyjahn and
Chrishonda were scheduled to testify in appellant’s first trial.
The trial court overruled a hearsay objection to this
testimony, explaining that the testimony was offered to
prove Chrishonda’s fear, which was relevant to her
credibility. Chrishonda testified that she feared for Dyjahn’s
life as a result of the social media page.2
1 At trial, Dyjahn claimed not to remember whether he had
made an identification in the second six-pack. An audio
recording of Dyjahn’s six-pack identification was played for the
jury, and the six-pack was admitted into evidence.
2 Unlike his mother, Dyjahn claimed he was “[n]ot at all”
afraid to testify.
9
Chrishonda did not identify appellant -- or anyone else
-- as the shooter. She participated in the fistfight, but did
not see the shooter doing so, even though he had come
through the gate with Henderson, Sullivan, and Lockett.
She fell down during the fight, and as a woman helped her
up, she saw the shooter -- a Black man wearing a black
hoodie, light pants, and a yellow-black face covering -- shoot
Houston “many” times. She did not see the shooter’s face.
On the day of the shooting, she told police that neither
Henderson, Sullivan, nor Lockett was the shooter.
5. Sullivan’s Letter Regarding the Shooter’s
Arrest
Henderson, Sullivan, and Lockett were all convicted of
Houston’s murder, on an aiding and abetting theory, in a
prior trial. At appellant’s trial, Henderson and Lockett
refused to testify, and the parties stipulated that Sullivan
would have refused if called, rendering Sullivan an
unavailable witness. The court instructed the jury to
consider Sullivan’s preliminary hearing testimony, which
was read into the record by the prosecutor, as if it had been
delivered at trial.
In his preliminary hearing testimony, Sullivan
confirmed that in a June 2, 2016 letter to the court, he had
written, “It was brought to my family’s attention that the
actual shooter in my case was arrested on 5/26/16.”
Appellant was arrested on that date. Sullivan testified that
he did not know whether the person arrested was actually
10
the shooter, and that he did not recognize appellant. He also
denied that he had ever been a member of the Southside
Compton Crips, despite confirming that he had the gang’s
initials tattooed on his knuckles.
6. Wilson’s Identification of Daredevil
Denelle Wilson testified that on the day of the shooting,
he received a call from Henderson (his girlfriend Shamita
Cartwright’s brother) and agreed to provide Henderson
backup in a fistfight. Henderson, Sullivan, and Lockett
picked him up, and then proceeded to pick up a friend of
Sullivan’s, whom Sullivan addressed as “Daredevil.”3
Daredevil was wearing a black hoodie, a yellow shirt, and
gray pants. Wilson claimed he was unable to see Daredevil’s
face or determine Daredevil’s race or gender. He denied
recognizing appellant, except as someone he had seen in
court on previous occasions. Admitting he was afraid
Daredevil might hurt his family, he testified that he would
not identify Daredevil in court even if Daredevil were
present.
The five men drove to the scene of the shooting and
approached Houston’s group through the gate of an
apartment complex. “A fight broke out. Everyone started
fighting and a scuffle got big and everything, and shots rang
3 The parties stipulated that a detective was deemed to have
testified that appellant operated a social media account under the
name “TG Dirty Devil.”
11
out and everyone ran and went back to the car.” The five
men went together to Cartwright’s home. Wilson claimed he
did not see the shooting or who the shooter was.
Audio recordings from two pre-arrest interviews
Wilson gave to the police were played for the jury.4 During
the first interview, he identified Daredevil as the shooter.
He described Daredevil as a light-skinned Black man with a
tattoo of devil horns on his forehead. This description
matched appellant.
During the second interview, Wilson was shown a
six-pack that included appellant’s picture and instructed not
to look for tattoos, as the police “maybe Photoshopped them
out.” He failed to identify any of the men pictured as
Daredevil, but indicated that two men other than appellant
were the closest matches. He described Daredevil as a
member of Sullivan’s gang, the Atlantic Drive Compton
Crips.5 In reference to Daredevil, Sullivan had bragged,
“‘Yeah I got me a little hitter,[6] you feel me, I got me a dude
4 Wilson testified that he had been arrested in connection
with the shooting, had “pled out to accessory,” and had been
sentenced to probation.
5 The parties stipulated to the admission of photographs that
showed appellant had “ADCC” tattooed on his forearm. The
prosecution’s gang expert testified that the Atlantic Drive
Compton Crips were closely associated with the Southside
Compton Crips.
6 The prosecution’s gang expert testified that “hitters” are
gang members who “have it in them” to shoot someone.
12
that’s on go, on call, whatever, you know what I’m saying?
Whenever it’s like that, I just call him up, and he gonna do it.
And he just came, he just came off a murder. He just came
from beating a murder, little murder case and stuff.’” On the
day of the shooting, after picking up Wilson, Sullivan called
Daredevil twice, to let him know that the men were en route
to his home and that they had arrived. En route to the scene
of the shooting, Sullivan told Daredevil the group intended
to “‘fade’” their opponents (a reference to a fistfight,
according to Wilson’s trial testimony), and Daredevil
responded, “‘I don’t fight.’” Wilson interpreted this as a sign
that Daredevil might use a gun rather than his fists, but he
was reluctant to believe Daredevil would shoot someone in
broad daylight. After the shooting, Sullivan said to Wilson,
“‘That’s one of my hitters . . . . You like that he did him,
huh? He got him, huh?’” Sullivan later heard from his sister
that an unidentified girl had said, “‘It’s a guy with devil
horns running around here, you know, he just killed some
guy. . . . Oh I just seen him at a food drive. . . . [H]e’s
running around just homeless, he be at churches, you know,
accepting food and stuff like that.’” Wilson claimed he
wished he knew who Daredevil was, stating, “The way he
killed that guy? He’ll kill anybody. And I don’t want him to
come hurt my family members.”
7. Appellant’s Phone Records
Los Angeles County Sheriff’s Department crime
analyst Danielle Hefte, an expert in the analysis of cell
13
phone records, analyzed records of calls made and received
by appellant’s phone on the day of the shooting. She
explained how such records can be compared to the locations
of nearby phone towers to determine the likely general
location of the phone at the time a call was made or received.
She conceded that such analysis cannot determine the
phone’s precise location or identify its user.
Hefte created an exhibit relating the data from
appellant’s phone to three addresses: (1) appellant’s home;
(2) the scene of the shooting; and (3) Cartwright’s home,
where Wilson said the shooter and his accomplices went
after the shooting. At 12:47 and 12:48 p.m., appellant’s
phone was near his own home and had two short calls with
Sullivan’s phone. The shooting occurred about 20 minutes
later, around 1:09 p.m. About seven minutes later (at 1:16
p.m.), Sullivan’s phone called appellant’s while moving
toward Cartwright’s home, but the call lasted zero seconds,
suggesting it was placed inadvertently. Between 1:20 and
1:34 p.m., appellant’s phone was near Cartwright’s home
and made or received a total of eight calls. At 1:51 and 1:53
p.m., appellant’s phone made calls from near his own home.
8. Appellant’s Prior Conviction
Prior to appellant’s first trial, the prosecution filed a
motion in limine for permission to introduce evidence of
appellant’s 2004 conviction for assault with a firearm and
his attendant prison sentence. The prosecution argued this
evidence was admissible to link appellant to Wilson’s
14
secondhand report that in 2012, Daredevil (the shooter) “had
just gotten out of prison for shooting someone.” Appellant’s
counsel objected to admission of this evidence, but failed to
specify any ground for his objection, instead merely arguing
that Wilson had never identified appellant as Daredevil and
that Daredevil had reportedly murdered someone, rather
than merely assaulting someone. The trial court ruled the
conviction and sentence admissible, explaining, “[Wilson]
says that the defendant, or the shooter, was someone who
had just gotten out for murder. The actual facts are
[appellant] had just gotten out of prison for [assault with a
firearm]. There is some discrepancy there. But, if anything,
it helps the defense. So the defense can say, look, there is a
big difference between murder and assault with a firearm.
And on top of that, the fact that he was released for assault
with a firearm versus murder makes it less prejudicial.”
Appellant’s counsel pointed out another discrepancy:
Sullivan reportedly had said, in 2012, that Daredevil had
“just” been released from prison, but appellant had been
released from prison years before 2012. The court responded
that this discrepancy “goes to weight and not
admissibility . . . .”
During appellant’s second trial, the parties did not
relitigate the admissibility of the prior conviction on the
record, but evidently discussed it with the court in camera.
The parties stipulated that appellant was charged with
attempted murder and assault with a firearm in 2003, that
15
he pleaded guilty to assault with a firearm, and that he was
sentenced to four years in prison.
B. Defense Case
Appellant neither testified nor presented evidence.
C. Jury Instructions and Closing Arguments
The court instructed the jury, per CALJIC No. 2.92,
that in determining the weight to be given eyewitness
identification testimony, the jury should consider factors
bearing upon the identification’s accuracy. The court
provided a non-exhaustive list of 11 such factors, including
“[t]he extent to which the witness is either certain or
uncertain of the identification[.]” The court further
instructed the jury that a witness’s “[i]nnocent
misrecollection is not uncommon,” and that the jurors were
the “sole judges of the believability of a witness and the
weight to be given the testimony of each witness.” Finally,
the court instructed the jury that appellant was presumed to
be innocent, and that the People bore the burden of proving
his identity as the perpetrator (as well as his guilt of the
charged offenses) beyond a reasonable doubt.7
7 The court did not deliver any limiting instruction regarding
appellant’s firearm-assault conviction. On inquiry from the court,
appellant’s counsel confirmed he had made a tactical decision not
to request such an instruction, to avoid highlighting the prior
conviction for the jury.
16
In closing argument, the prosecutor argued Houston
was murdered by means of lying in wait, as the video showed
the shooter waited on the sidelines until the fight had
distracted Houston, then approached Houston while
concealing his gun inside his hoodie, before launching his
sudden, close-range attack. He argued appellant was the
shooter, relying on Dyjahn’s six-pack identification,
Lakeisha’s in-court identification, Sullivan’s letter
identifying the date of appellant’s arrest as the date the
shooter was arrested, and Wilson’s identification of
Daredevil as the shooter. The prosecutor argued appellant
was Daredevil, pointing out that his devil-horns tattoo and
general appearance matched Wilson’s description of
Daredevil, that he had an additional tattoo of the initials of
the gang to which Daredevil reportedly belonged, that he
used the name “T.G. Dirty Devil” for a social media account,
that his prior firearm-assault conviction was similar to
Daredevil’s reported prior conviction, and that his phone
records showed: (1) he received calls from Sullivan around
the time Sullivan reportedly called Daredevil when picking
him up; and (2) shortly after the shooting, he made several
calls near Cartwright’s home, where Daredevil reportedly
accompanied his accomplices after the shooting. The
prosecutor did not rely on CALJIC No. 2.92’s certainty factor.
As appellant acknowledges on appeal, his trial counsel
effectively conceded that the prosecution evidence was
sufficient to prove appellant was present at the scene of the
shooting. He argued that the evidence nevertheless failed to
17
establish that appellant was the shooter, as Lakeisha’s and
Dyjahn’s identifications of appellant as the shooter were
unreliable, and neither Sullivan nor Wilson had identified
appellant as the shooter by name.
A second prosecutor delivered the rebuttal. She
pointed out defense counsel’s apparent concession regarding
appellant’s presence at the scene of the shooting. She
argued this concession and the process of elimination
supported an inference that appellant was the shooter, as
Lakeisha, Dyjahn, and Chrishonda each had said that
neither Henderson, Sullivan, nor Lockett was the shooter,
and the only other men confirmed to have been present were
Wilson and appellant. She argued that Sullivan and Wilson
had not identified appellant by name because they were
loyal or afraid, and that each had identified him implicitly.
D. Verdict, Sentencing, and Appeal
The jury convicted appellant of first degree murder and
found true the allegation that the murder occurred by means
of lying in wait. Appellant pleaded no contest to the
felon-in-possession counts and admitted the truth of the
gang and prior conviction allegations.
The court sentenced appellant, on the murder count, to
life in prison without the possibility of parole. It sentenced
appellant to concurrent three-year terms on each of the six
felon-in-possession counts. Appellant timely appealed.
18
DISCUSSION
Appellant contends: (1) no substantial evidence
supported the jury’s true finding on the lying-in-wait special
circumstance allegation; (2) the trial court prejudicially
erred in admitting evidence of the social media page
describing Dyjahn as a snitch; (3) the court prejudicially
erred in admitting Wilson’s secondhand description of
Daredevil’s criminal history, along with appellant’s own
prior conviction and sentence (or his trial counsel was
ineffective for failing to properly object to this evidence); (4)
his counsel was ineffective for failing to properly object to
Wilson’s secondhand report of an unidentified girl’s
statement that a man with a devil-horns tattoo had killed
someone; (5) the court violated his due process rights by
instructing the jury that the certainty of an eyewitness
identification is relevant to its reliability; and (6) he was
prejudiced by the cumulative effect of the asserted errors.
A. Sufficiency of Evidence of Lying in Wait
The lying-in-wait special circumstance has three
elements: (1) a concealment of purpose; (2) a substantial
period of watching and waiting for an opportune time to act;
and (3) a surprise attack on an unsuspecting victim from a
position of advantage. (People v. Woodruff (2018) 5 Cal.5th
697, 774 (Woodruff).) Appellant does not dispute the
sufficiency of the evidence that he watched and waited for a
substantial period, but he contends there was insufficient
evidence that he concealed his purpose or launched a
19
surprise attack on an unsuspecting victim from a position of
advantage. We review the record in the light most favorable
to the judgment and affirm if it discloses substantial
evidence, meaning evidence from which a reasonable jury
could find the special circumstance allegation true beyond a
reasonable doubt. (People v. Becerrada (2017) 2 Cal.5th
1009, 1028-1029.)
1. Concealment of Purpose
There was substantial evidence that appellant
concealed his purpose. The jury reasonably could have found,
from the video evidence and the victim’s sisters’ testimony,
that appellant did not join in the fistfight but rather waited
some distance away, watching the fistfight as it progressed
and Chrishonda fell down. Only then did he pass by the
combatants to get closer to Houston. He concealed his gun
in his hoodie before launching his sudden, close-range attack.
This was sufficient. (See Woodruff, supra, 5 Cal.5th at 775
[substantial evidence supported lying-in-wait special
circumstance finding, where defendant waited some distance
from scene where victims were arresting defendant’s mother
and brother, and concealed his gun behind his back while
waiting]; People v. Mendoza (2011) 52 Cal.4th 1056, 1074
(Mendoza) [same, where defendant waited some distance
from scene where victim was pat-searching defendant’s
companion, and concealed his gun while waiting and then
maneuvering closer to victim].)
20
Contrary to appellant’s contention, this element does
not require evidence that the defendant either hid himself or
executed a ruse. (See Woodruff, supra, 5 Cal.5th at 775
[defendant neither executed ruse nor hid his location, and in
fact “warned the [victims] from that location to leave his
mother alone”].) Appellant identifies no authority for this
purported requirement, instead relying on caselaw finding
substantial evidence of lying in wait on different facts than
those presented here. In Mendoza, our Supreme Court
rejected an argument similar to appellant’s: “[D]efendant
asserts his actions were not of the same character as those
found to constitute lying in wait in other cases, e.g., he did
not wait for a victim to arrive at a chosen location, or follow
or lure a victim to a particular spot, or murder a victim in
his sleep. No matter. Because each case necessarily
depends on its own facts, and because defendant’s conduct
clearly satisfied each of the lying-in-wait requirements, the
attempt to contrast this case with others falls short.”
(Mendoza, supra, 52 Cal.4th at 1075.) Here, likewise,
appellant’s conduct satisfied the concealment-of-purpose
requirement, and he cannot establish otherwise merely by
contrasting this case with others.
2. Surprise Attack on Unsuspecting Victim
from Position of Advantage
There was substantial evidence that appellant
launched a surprise attack on Houston, an unsuspecting
victim, from a position of advantage. The jury reasonably
21
could have found that Houston, seeing appellant waiting by
the gate where he and his companions had first appeared,
viewed appellant as a noncombatant, and that Houston’s
attention was diverted from appellant by the fistfight. (See
Woodruff, supra, 5 Cal.5th at 775 [at time of attack, officers
were occupied with arrest of defendant’s mother and brother
and “could not have known that defendant had armed
himself and was considering shooting at them”].) Further,
the jury reasonably could have found that Houston failed to
suspect that the fistfight -- occurring in broad daylight and
within full view of bystanders who captured part of it on
video -- would escalate into a shooting, particularly at the
hands of a man detached from the fray. (Cf. People v.
Streeter (2012) 54 Cal.4th 205, 249 (Streeter) [substantial
evidence supported finding defendant launched fatal
surprise attack on former victim of his domestic abuse;
“because it appeared that the prior domestic assaults on
[victim] occurred within the privacy of their home, the jury
could reasonably infer that she could not have anticipated
that defendant would beat her in public and certainly not set
her on fire there”].) Indeed, Wilson indicated to police that
he had been surprised when Daredevil hinted, en route to
the fight, that he might shoot one of their opponents in broad
daylight. Houston’s failure to anticipate the fatal attack
allowed appellant to launch it from an advantageous position
near his distracted victim.
Contrary to appellant’s contention, the jury was not
compelled to find that Houston anticipated the fatal attack
22
because he had seen appellant arrive with companions “who
had shouted the name of a criminal street gang” during their
earlier argument with Houston. It is true that Houston had
reason to suspect appellant shared his companions’ hostile
purpose. But our Supreme Court has found the
surprise-attack element supported by substantial evidence
even where the victim, having reason to suspect aggression
from the defendant, took precautions prior to the attack.
(See Woodruff, supra, 5 Cal.5th at 711-712, 775 [substantial
evidence supported finding defendant launched surprise
attack on two police officers arresting his mother and
brother, even though defendant and his brother had warned
first officer to leave their mother alone, prompting first
officer, “[f]eeling unsafe,” to call second for backup]; Mendoza,
supra, 52 Cal.4th at 1074 & fn. 8 [substantial evidence
supported finding defendant launched surprise attack on
police officer pat-searching his companion, even though
defendant had “rudely challenged” officer at outset of
encounter, and officer had “decided to take precautionary
action” by conducting pat-search after directing defendant
and another companion to sit some distance away]; Streeter,
supra, 54 Cal.4th at 211-212, 248-249 [substantial evidence
supported finding defendant launched surprise attack on
ex-girlfriend, even though she had separated from him due
to physical abuse and, en route to fatal meeting with
defendant, was “nervous” and brought son “to protect her”].)
Here, the jury reasonably could have found that Houston
inferred, from appellant’s waiting at the gate, that appellant
23
intended to assist his companions’ hostile purpose only as a
lookout or as backup. In that case, he could not have
anticipated that appellant would interrupt the fistfight by
shooting him dead.
B. Evidentiary Challenges
1. Witness Intimidation
Appellant contends the trial court prejudicially erred in
admitting evidence of a social media page describing Dyjahn
as a snitch, notwithstanding appellant’s concession that
Chrishonda (Dyjahn’s mother and the victim’s sister) was
afraid to testify as a result of the page. He argues evidence
of a witness’s fear of testifying is relevant only if there is
other evidence “suggest[ing] that the witness’s credibility
has been affected” by that fear, such as evasive or equivocal
responses to questions.
The trial court acted within its discretion in admitting
the evidence that Chrishonda was afraid to testify as a
result of the social media page, as the evidence was relevant
to her credibility. (See People v. Sandoval (2015) 62 Cal.4th
394, 429-430 [“‘Evidence that a witness is afraid to testify or
fears retaliation for testifying is relevant to the credibility of
that witness and therefore is 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’”].) Our Supreme Court has rejected
appellant’s proposed foundation requirement by holding that
the relevance of such evidence is independent of any showing
24
that the witness’s testimony was “inconsistent with prior
statements or otherwise suspect.” (People v. Valdez (2012)
55 Cal.4th 82, 135-136.) The court expressly disapproved
People v. Yeats (1984) 150 Cal.App.3d 983 -- the principal
authority on which appellant relies -- to the extent it
announced a contrary rule. (People v. Valdez, supra, at 136,
fn. 33.)
2. Appellant’s and Daredevil’s Criminal
History
Appellant contends Sullivan’s description of
Daredevil’s criminal history (as reported by Wilson) should
have been excluded under: (1) the hearsay rule, which
generally prohibits admission of an out-of-court statement
offered to prove the statement’s truth (Evid. Code, § 1200,
subds. (a)-(b)); or (2) Evidence Code section 352 (Section 352),
which grants the trial court discretion to exclude evidence if
its probative value is substantially outweighed by the
probability that its admission will, inter alia, create
substantial danger of undue prejudice. Appellant further
contends his 2004 firearm-assault conviction and attendant
sentence should have been excluded because: (1) they were
irrelevant in the absence of evidence concerning Daredevil’s
conviction and sentence, which should have been excluded;
and (2) their probative value was substantially outweighed
by the risk of unfair prejudice.
Respondent contends appellant forfeited his
evidentiary challenges by failing to object on hearsay or
25
Section 352 grounds in the trial court. We agree. (See
People v. Perez (2020) 9 Cal.5th 1, 7 [“Ordinarily, ‘the failure
to object to the admission of . . . hearsay at trial forfeits an
appellate claim that such evidence was improperly
admitted’”]; People v. Jones (2012) 54 Cal.4th 1, 61
[defendant forfeited contention that expert opinion should
have been excluded under Section 352, where defendant
failed to make “this specific objection” at trial, instead
merely objecting that expert was unqualified to render
opinion].) Appellant’s counsel did not object to Wilson’s
reporting of Sullivan’s statement. Though appellant’s
counsel objected, during appellant’s first trial, to admission
of the firearm-assault conviction and sentence, he neither
specified the grounds for his objection nor argued the
evidence’s probative value was substantially outweighed by
any consideration set forth in Section 352. (See California
Guide to Criminal Evidence (2020 ed.) ch. 6, § 4 [“To make a
proper objection under Evid. C. § 352, the party must specify
the precise ground for the objection (i.e., time-consuming,
unduly prejudicial, confusing, or misleading)”].) Thus,
appellant forfeited his hearsay and Section 352 challenges to
Sullivan’s description of Daredevil’s criminal history, along
with his Section 352 challenge to the admission of his prior
conviction and sentence.
C. Ineffective Assistance of Counsel
Appellant contends his trial counsel was
unconstitutionally ineffective in failing to: (1) preserve
26
appellant’s hearsay and Section 352 challenges to the
evidence of his and Daredevil’s criminal history; and (2)
raise a hearsay objection to Wilson’s statement that his
sister had heard from an unidentified girl that a man with a
devil-horns tattoo had killed someone. To prevail on this
contention, appellant must prove “‘“that counsel’s
representation fell below an objective standard of
reasonableness under prevailing professional norms, and
that counsel’s deficient performance was prejudicial, i.e.,
that a reasonable probability exists that, but for counsel’s
failings, the result would have been more favorable to the
defendant.”’” (In re Crew (2011) 52 Cal.4th 126, 150.) “If a
claim of ineffective assistance of counsel can be determined
on the ground of lack of prejudice, a court need not decide
whether counsel’s performance was deficient.” (Ibid.)
Without deciding whether trial counsel’s performance
was deficient, we reject appellant’s ineffective assistance
claim on the ground that his counsel’s asserted failings were
not prejudicial. Appellant’s counsel effectively conceded,
during closing argument, that the prosecution evidence was
sufficient to prove that appellant was present at the scene of
Houston’s shooting. Lakeisha, Dyjahn, and Chrishonda each
said that neither Henderson, Sullivan, nor Lockett was the
shooter, and the only other men confirmed to have been
present were Wilson and appellant. Four eyewitnesses
identified appellant as the shooter. First, Lakeisha
identified appellant as the shooter in court. Second, Dyjahn
identified appellant as the shooter in a six-pack (and did not
27
recant that identification at trial, instead merely failing to
make any identification -- perhaps influenced by the
anonymous social media page labeling him a snitch). Third,
Sullivan implicitly identified appellant as the shooter by
writing to the court that the shooter had been arrested on
the date of appellant’s arrest. Finally, though Wilson
identified “Daredevil” rather than appellant as the shooter,
there was overwhelming evidence that appellant was
Daredevil, including: (1) appellant’s “TG Dirty Devil” social
media account; (2) his forearm tattoo indicating he belonged
to the gang to which Daredevil reportedly belonged; (3)
phone records suggesting that he received calls from
Sullivan around the time Sullivan reportedly called
Daredevil when picking him up, and that he made several
calls near Cartwright’s home around the time Daredevil
reportedly was there after the shooting; and (4) the
similarity between his appearance and Wilson’s description
of Daredevil -- most strikingly, their matching devil-horns
tattoos. During closing argument, the prosecutors
referenced appellant’s prior conviction only in passing, as
one example among many of evidence that appellant was
Daredevil. They made no mention of the unidentified girl’s
reported statement. We are confident that the jury would
have convicted appellant even had his trial counsel
successfully objected to the admission of his prior conviction
and the unidentified girl’s statement. (See In re Crew, supra,
52 Cal.4th at 150 [“‘“A reasonable probability [of a more
favorable result absent counsel’s failings] is a probability
28
sufficient to undermine confidence in the outcome”’”].)
Accordingly, counsel’s failure to raise such objections did not
render his assistance unconstitutionally ineffective.
D. Instruction on Eyewitness Certainty
Appellant initially contended the trial court violated
his due process rights by instructing the jury, per CALJIC
No. 2.92, that an eyewitness’s degree of certainty in making
an identification is one of 11 non-exhaustive factors relevant
to the identification’s reliability. Following the issuance of
Lemcke, he acknowledges that the case “appears [to have]
invalidated his claim that the trial court’s inclusion of the
witness-certainty factor in its version of CAL[JIC] 2.92
violated his right to due process . . . .” While suggesting that
Lemcke supports a finding of some other, unspecified type of
error, no such error was asserted in appellant’s initial
briefing or considered in Lemcke. (See Lemcke, supra, 11
Cal.5th at 653-654 & fn. 3 [due process was sole issue
adequately raised for review].) Accordingly, we need address
only appellant’s due process claim. As explained below, we
conclude the claim fails.8
8 In their initial brief, the People did not raise the issue of
forfeiture, instead conceding we could consider the merits of
appellant’s due process claim “even though defense counsel did
not object to the instruction as given.” We need not consider the
People’s belated raising of the forfeiture issue in their
supplemental brief. In any event, we conclude the due process
claim fails on the merits.
29
“A jury instruction may ‘“so infuse[] the trial with
unfairness as to deny due process of law.”’ [Citation.]
However, ‘“not every ambiguity, inconsistency, or deficiency
in a jury instruction rises to the level of a due process
violation. The question is ‘“whether the ailing instruction . . .
so infected the entire trial that the resulting conviction
violates due process.”’”’ [Citation.] ‘“It is well established
that the instruction ‘may not be judged in artificial isolation,’
but must be considered in the context of the instructions as a
whole and the trial record.”’” (Lemcke, supra, 11 Cal.5th at
655.)
In Lemcke, the prosecution case rested on a single
eyewitness, who identified the defendant as the perpetrator
on three occasions: twice when shown photographic lineups
before trial, and finally at trial. (Lemcke, supra, 11 Cal.5th
at 648-650.) The eyewitness expressed certainty in her
identification.9 (Id. at 649-650.) The defendant challenged
the identification’s accuracy, both by calling an expert to
testify about, inter alia, the weak correlation between
certainty and accuracy, and by cross-examining the
eyewitness and the investigating officers who had shown her
the photographic lineups. (Id. at 650-652, 660.) In language
essentially identical to CALCRIM No. 315, the trial court
9 Before trial, the eyewitness pointed to the defendant’s
photograph and said, “‘[F]or sure it was [him].’” (Lemcke, supra,
11 Cal.5th at 649.) At trial, she testified that she remembered
the defendant’s face well and it was “‘impossible for [her] not to
recognize his face.’” (Id. at 649-650.)
30
instructed the jury on 15 factors it should consider in
evaluating the accuracy of an eyewitness identification,
including how certain the witness was when she made the
identification. (Id. at 652, 654, fn. 5.) In closing argument,
the prosecution focused on the eyewitness’s testimony,
arguing her consistent identification of the defendant was
accurate, in part because she was “‘certain the entire time.’”
(Ibid.) The jury convicted the defendant, and the Court of
Appeal affirmed, concluding it was bound by People v.
Sánchez, supra, 63 Cal.4th 411, to reject the defendant’s due
process challenge to the certainty factor. (Id. at 653.) The
defendant renewed this challenge in the Supreme Court,
arguing that the certainty factor had violated his due
process rights by (1) lowering the prosecution’s burden of
proof, and (2) denying the defendant a meaningful
opportunity to present a complete defense on the issue of
identity. (Id. at 657.)
Rejecting both arguments, the Supreme Court found no
merit in the due process claim. (Lemcke, supra, 11 Cal.5th
at 654-661.) Concerning the burden of proof, the court
observed, “The instruction leaves the jury to decide whether
the witness expressed a credible claim of certainty and what
weight, if any, should be placed on that certainty in relation
to the numerous other factors listed . . . .” (Id. at 657.) The
court further observed that the jury had been instructed that
(1) the jurors were responsible for judging the credibility of
witnesses, who sometimes make honest mistakes about what
they remember; (2) the defendant was presumed innocent;
31
and (3) the prosecution was required to prove the
defendant’s identity as the perpetrator (as well as the
elements of the charges) beyond a reasonable doubt. (Id. at
658.) Concerning the defendant’s opportunity to present a
complete defense, the court observed that the defendant had
“had the opportunity to cross-examine [the eyewitness] and
the investigating officers regarding her identifications and
the procedures used during the photographic lineups,” and
had “elicited numerous inconsistencies in other aspects of
[her] recollection . . . .” (Id. at 660.) The court concluded
that the inclusion of the certainty factor in the eyewitness-
identification instruction had not rendered the trial
fundamentally unfair. (Id. at 646, 661.)10
Here, guided by Lemcke, we conclude that appellant’s
due process claim lacks merit. None of the eyewitnesses
expressed certainty. The jury reasonably might have
inferred uncertainty from the eyewitnesses’ failure to
consistently identify appellant as the shooter before and at
trial.11 Thus, the certainty factor did not favor the
prosecution. (Cf. Lemcke, supra, 11 Cal.5th at 666 [certainty
10 The court additionally relied, in part, on the defendant’s
presentation of expert testimony concerning the certainty factor.
(Lemcke, supra, 11 Cal.5th at 657-660.) Appellant does not claim
he was denied an opportunity to present such testimony. Nor
does he argue that the absence of such testimony at his trial
warrants a different result than in Lemcke.
11 Before trial, Lakeisha first identified Lockett as the shooter.
At trial, Dyjahn and Wilson failed to make any identification.
32
factor “raises particular concerns in a case like this one,
where the conviction was based almost entirely on the
testimony of a single witness who expressed certainty in her
identification”].) Indeed, the prosecution did not rely on the
certainty factor during closing argument. Finally, appellant
had ample opportunity to challenge the accuracy of the
identifications through cross-examination and argument,
and the jury was properly instructed on its role in evaluating
a witness’s reliability and the prosecution’s burden of proof.
(See id. at 658, 660.) We conclude that the inclusion of the
certainty factor in CALJIC No. 2.92, considered in the
context of the instructions as a whole and the trial record,
did not “‘“so infuse[] the trial with unfairness as to deny due
process of law.”’” (Id. at 655.)
E. Cumulative Error
We have rejected appellant’s contentions of trial court
error and found the asserted failings of his trial counsel not
prejudicial. Accordingly, we reject his contention that he
was prejudiced from the cumulative effect of the asserted
errors.
33
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.
34