People v. James CA4/2 ( 2021 )

Filed 4/12/21 P. v. James CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E072459
v. (Super.Ct.No. RIF1880195)
CORY CHENNO JAMES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Samuel Diaz, Jr., Judge.
Affirmed.
Edward Mahler, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B.
Lacy, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Cory Chenno James of assault with a semiautomatic firearm and
found true the allegations that he personally used a firearm in committing the offense and
1
that he inflicted great bodily injury. (Pen. Code, §§ 245, subd. (b), 12022.5, subd. (a),
12022.7, subd. (a).) James was sentenced to 22 years in state prison.
On appeal, James argues that the trial court erred by (1) sustaining certain
evidentiary objections, (2) not allowing James to present evidence that he suffered from
posttraumatic stress disorder (PTSD) to demonstrate the objective reasonableness
element of his self-defense claim, and (3) allowing a law enforcement officer to opine
that one of the victim’s friends was not involved in the shooting. James further argues
that the prosecutor’s question eliciting the law enforcement officer’s opinion constituted
misconduct. James contends that these errors were cumulatively prejudicial. We
conclude that James has not shown prejudicial error, and we therefore affirm the
judgment.
BACKGROUND
A. The Conflict
Sometime in 2014, John Doe was in a romantic relationship with Kay J.1 While
they were together, Kay became pregnant. Doe believed the child was his and was
present with Kay in the hospital in July 2015 when the child was born. After the child
was born, Doe ended the relationship with Kay.
When the child was conceived, Kay was also involved with James. While Kay
was pregnant, she was unsure which man was her child’s father. Kay and James stopped
1 We refer to the victim by a fictitious name and omit the last names of the
witnesses to preserve their anonymity. (Cal. Rules of Court, rule 8.90(b).) No disrespect
is intended.
2
dating several months before the child was born. James was the child’s father.
Sometime after the child was born, Kay and James resumed their relationship. According
to Kay, it upset James that Doe had been present for the child’s birth. Kay never
introduced James and Doe to each other.
In February 2016, James and Kay, along with their infant child and a three-year-
old child of James’s, drove past a bus terminal where Doe happened to be hanging out
with several friends, including Anthony T. and Vincent I. James drove into the bus
terminal’s parking lot, exited his vehicle, and walked over to Doe. James confronted Doe
and twice asked Doe if he in fact was John Doe, which Doe initially denied. James
turned to walk away and Doe asked, “‘What if my name is [John Doe]?’” James stayed,
and the two men talked in a “pretty aggressive” manner.
Anthony got involved and told James that he needed to leave. According to Doe,
both Anthony and Vincent were willing to engage in violence on Doe’s behalf. Anthony
asked Doe if Doe wanted him to hit James, but Doe had already told Vincent that he
should not engage in any physical violence because the bus terminal was located in front
of a police station. According to Doe, he, Anthony, and Vincent were not armed, and
none of them threatened to shoot James’s vehicle.
As the argument between Doe and James continued, Doe believed it was leading
to a physical fight, which he did not want to occur at the bus terminal. Doe suggested
that the men relocate to a nearby park, where he wanted to fight James. James agreed to
the meeting. Before James drove away from the bus terminal, Doe thought that James
3
might have said “something about airing [Doe] out,” which Doe understood to mean
shooting Doe.
B. The Fist Fight and the Shooting
James and Kay ran a brief errand, and James then drove to the park. James parked
on a street near the park, immediately exited the vehicle, and headed into the park. Kay
exited the vehicle and entered the park shortly after James. Walking some distance
behind James, Kay noticed for the first time that James was holding a gun in his hand.
Kay did not see James retrieve the gun from anywhere inside the car at any point that
day. She thus believed that James had the gun with him at the bus terminal even though
she did not then see the gun. Kay was briefly outside the vehicle between leaving the bus
terminal and arriving at the park.
Doe was already at the park when James arrived. While seated at a bench, Doe
saw James enter the park and run toward Doe while crouching. Doe thought that James
appeared to be carrying a weapon, so Doe got up, ran toward a fence, and jumped to the
top. While atop the fence, Doe told James that he would fight James if James put the
weapon away. James put the gun in Kay’s purse, which was hanging on her shoulder.
Once James was no longer holding the gun, Doe came down from the fence, and
the two men approached each other and started to fight. Doe pulled James to the ground,
and James’s head struck the ground. James ended up on top of Doe while the men
continued fighting on the ground, and, according to Kay, James started “getting the best
4
of [Doe].” Several witnesses testified that the man who was on top of the other man on
the ground called out for someone to give him a gun.
Doe said that he was somehow able to get up from the ground, and James then ran
toward Kay and demanded that Kay give him his gun. After James asked Kay for the
gun, Doe started running away. James retrieved his gun from Kay’s purse and started
firing in Doe’s direction. Afraid of James, Kay ran away too. James fired four shots.
One of the bullets struck Doe in the back of the head. Doe testified that when he was on
the ground fighting with James, Doe did not threaten to shoot James and did not ask any
of his friends to shoot James.
Law enforcement officers, including Detective Mike Medici, responded to the
scene. Detective Medici became the case agent for the incident. In that capacity, he
reviewed all of (1) the reports generated in the case, (2) the physical evidence in the case,
(3) the witness statements, and (4) the video recordings from a security camera at a senior
center near the park and from witness’s cell phones. He also interviewed Doe, Kay, and
some other witnesses.
In his testimony at trial, Detective Medici identified the video recordings that he
had reviewed, the prosecutor then asked him: “At any point was this individual,
[Vincent]—at any point was this person—seemed to get involved in that shooting?”
Detective Medici responded, “[n]o,” and he then confirmed in response to the following
question that, “based on reviewing the videos,” he at no point felt it necessary to locate or
to interview Vincent. Nothing from the investigation Detective Medici conducted on the
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day of the incident led Detective Medici to “focus in on” Vincent. He did not focus on
Vincent because there was no evidence that Vincent had been involved in the fight.
Detective Medici explained, “You saw it on the video. [Vincent] wasn’t anywhere in eye
shot.”
C. Defense Case
James did not deny shooting Doe. The defense theory was that James acted in
self-defense or in defense of others.
1. Doe’s Friend Testifies for the Defense
Anthony testified on James’s behalf. Anthony claimed that both he and Vincent
threatened James when James confronted Doe at the bus terminal. Anthony said that he
was going to “whup [James’s] ass.” Vincent threatened that he was going to “shoot . . .
up” James’s car and warned that he did not care who was in it. According to Anthony,
Vincent had a gun in his front right pocket. Anthony was not at the park when the fight
occurred but arrived afterward and was interviewed by the police that day.
Because of his friendship with Vincent, Anthony did not report to police that
Vincent had threatened to shoot James’s car earlier in the day or that Vincent had a gun.
Over two years later, Anthony spoke with an investigator for the prosecution and told the
investigator that Doe had threatened to shoot James’s car at the bus terminal. At James’s
first trial approximately two weeks later, Anthony testified that it was Vincent, not Doe,
who had made the threat. He also testified that he did not know who had made the threat.
He further testified that he never saw a gun on the day of the shooting.
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2. Defendant’s Testimony
James testified on his own behalf. When James pulled into the bus terminal
parking lot on the day of the shooting, he wanted to have a “cordial conversation” with
Doe to ask Doe to leave him and Kay alone. James asked Doe to stop texting Kay.
James kept his hands behind his back during the conversation in order to be
nonconfrontational. James had a gun in the car. Anthony threatened to beat up James.
Vincent said, “I’ll pop your bitch ass,” which James understood to be Vincent threatening
to shoot James. James told Vincent that James was “not here for that” and that his gun
was in the car. James noticed a bulge in Vincent’s right pocket, which he believed was
the outline of a gun. Vincent threatened to shoot James twice that day. James agreed to
meet Doe at the park with the intention of fighting.
James brought his nine-millimeter semiautomatic handgun with him into the park
because he and his family had just been threatened, which James described as Vincent or
Doe “saying [he was] going to shoot up the car with my kids in it.” When James arrived
at the park, he noticed that Vincent was there. Doe ran away and jumped onto a fence
when he saw James approaching, and Doe told James that he would fight if James put his
gun away. James put his gun in Kay’s purse and told her something like “Stay right here
or go back to the car.” James then walked toward Vincent and Doe and overheard them
conversing. On the basis of what he overheard, James believed that if James was
winning in a “one-on-one” fight with Doe then Vincent “might hop in it or something.”
7
James believed that he had the opportunity to walk away but stayed to fight because he
and his family had been threatened.
James punched Doe first. Within five seconds, Doe was down on the ground and
James was on top of him. James believed he was winning the fight. James heard Doe
“yell out for [Vincent] to bust on [James],” which James understood to mean that Doe
wanted Vincent to shoot James. James attempted to get up but Doe held him down.
James believed that he was going to get shot by Vincent if James could not get away.
James eventually got free, ran over to Kay, and retrieved his gun from her purse so that
he “wouldn’t get shot.”
James started firing immediately because he believed that he “would have died” if
he did not. James noticed that Doe ran toward Vincent and thought that Doe intended to
get Vincent’s gun. James fired four shots. He claimed that he had aimed high and was
not aiming at anyone in particular or toward a particular location. Doe did not make it to
Vincent and did not possess a gun.
After James fired the four shots, he and Kay ran to their vehicle, and Kay drove
them away from the park. When James ran away, he did not realize that Doe had been
shot. James instead believed that Doe had fallen and that the threat to James “was
neutralized.” Although Vincent was the only person whom James believed possessed a
gun other than James, James did not fire toward Vincent because “[Vincent] ducked after
[James] fired at [Doe].” When James fired his weapon, he was in fear for his own life
and Kay’s life.
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James confirmed that no one else who testified said that they heard Doe tell
Vincent to shoot James. James told law enforcement officers numerous lies about what
happened that day, including initially reporting that he was not armed on the day of the
shooting.
DISCUSSION
A. Evidence of PTSD
James argues that the trial court erred by preventing him from presenting expert
testimony that he suffered from PTSD, which he claims was relevant to the objective
reasonableness element of his self-defense claim.2 We conclude that the trial court did
not abuse its discretion.
Before trial, James moved to introduce testimony from a mental health expert that
James suffered from PTSD as a result of his combat experience. James argued that the
evidence was relevant to the jury’s determination of the reasonableness of his belief that
he needed to use immediate force in response to an imminent threat of danger. The
People argued that the evidence was inadmissible under Evidence Code section 352
(unlabeled statutory references are to this code). Relying on People v. Jefferson (2004)
2 For the first time in his reply brief, James contends that the evidence that he
suffered from PTSD also was relevant to whether he subjectively feared for his life.
James did not make that argument in the trial court, so we do not consider it. (People v.
Williams (1997) 16 Cal.4th 153, 250 (Williams).)
9
119 Cal.App.4th 508 (Jefferson), the trial court excluded the testimony, concluding that it
was “not admissible for the purpose of self defense.”3
“‘To justify an act of self-defense for [an assault charge under Penal Code section
245], the defendant must have an honest and reasonable belief that bodily injury is about
to be inflicted on him.’” (People v. Minifie (1996) 13 Cal.4th 1055, 1064.) “In other
words, the defendant’s belief must both subjectively exist and be objectively reasonable.”
(People v. Brady (2018) 22 Cal.App.5th 1008, 1014 (Brady).) “To assess whether a
belief was objectively reasonable, ‘a jury must consider what “would appear to be
necessary to a reasonable person in a similar situation and with similar knowledge.”’”
(Ibid.) The jury “must assume ‘“the point of view of a reasonable person in the position
of [the] defendant,”’ taking into account ‘“all the elements in the case which might be
expected to operate on his mind.”’” (Ibid.)
We review for abuse of discretion a trial court’s exclusion of expert testimony.
(People v. McDowell (2012) 54 Cal.4th 395, 426.) “A trial court will not be found to
have abused its discretion unless it “exercised its discretion in an arbitrary, capricious, or
patently absurd manner that results in a manifest miscarriage of justice.”” (People v.
3 The trial court also later excluded the testimony of a lay witness who served with
James in the military, which was offered to demonstrate that James was in combat while
he served in the military. The trial court concluded that the evidence was not relevant
and also excluded it under the “probative value analysis.” In the section of the opening
brief challenging the trial court’s exclusion of evidence that James suffered from PTSD,
James describes the trial court’s ruling excluding this lay witness testimony. He does not,
however, make any argument specific to this testimony or about the two legal grounds on
which the trial court excluded it. We therefore consider any challenge to exclusion of the
lay witness testimony forfeited. (Conservatorship of Ben C. (2007) 40 Cal.4th 529, 544,
fn. 8 (Ben C.).)
10
Hajek and Vo (2014) 58 Cal.4th 1144, 1180, abrogated on another ground by People v.
Rangel (2016) 62 Cal.4th 1192, 1216.)
In Jefferson, supra, 119 Cal.App.4th 508, the defendant was convicted of several
counts of battery against correctional officers while he was housed in a prison psychiatric
unit. (Id. at p. 510.) He argued that “the trial court erred in not admitting evidence of his
mental illness during the trial’s guilt phase for purposes of establishing the ‘reasonable
person’ standard in support of his defense of self-defense.” (Id. at pp. 516, 518.) The
Court of Appeal concluded that the trial court had properly excluded the evidence. (Id. at
p. 520.) The Court of Appeal explained that the issue for the objectively reasonable
person test “is not whether [the] defendant, or a person like him, had reasonable grounds
for believing he was in danger,” but instead “is whether a ‘reasonable person’ in [the]
defendant’s situation, seeing and knowing the same facts, would be justified in believing
he was in imminent danger of bodily harm.” (Id. at p. 519.) The court further explained:
“By definition, a reasonable person is not one who hears voices due to severe mental
illness.” (Ibid.) Instead, “[t]he reasonable person is an abstract individual of ordinary
mental and physical capacity who is as prudent and careful as any situation would require
him to be.” (Ibid.)
In reaching its conclusion, Jefferson, supra, 119 Cal.App.4th 508 analyzed People
v. Humphrey (1996) 13 Cal.4th 1073 (Humphrey) and explained why Humphrey did not
support the defendant’s position. (Jefferson, at pp. 519-520.) In Humphrey, our Supreme
Court held that under section 1107 expert testimony concerning battered women’s
11
syndrome was relevant and admissible to establish the objective reasonableness of the
defendant’s belief that she needed to kill in self-defense. (Humphrey, supra, at pp. 1086-
1087.) Section 1107 is a rule of evidence that under specified circumstances makes
expert testimony “admissible by either the prosecution or the defense regarding intimate
partner battering and its effects.” (§ 1107, subd. (a).) As pointed out in Jefferson,
Humphrey rested its decision on section 1107 and expressly declined to express any
opinion “on the admissibility of expert testimony regarding other possible syndromes in
support of a claim of self-defense.” (Humphrey, at p. 1087; Jefferson, at p. 520.) For
example, the Supreme Court cautioned that the “decision would not, in another context,
compel adoption of a ‘“reasonable gang member” standard.’ [Section 1107] states ‘a rule
of evidence only’ and makes ‘no substantive change’” to the law of self-defense.
(Humphrey, at p. 1087.)
James does not argue that Jefferson, supra, 119 Cal.App.4th 508 is factually
distinguishable or was wrongly decided. He acknowledges that Jefferson’s approach to
the objective reasonableness standard for self-defense was followed in Brady, supra, 22
Cal.App.5th at pages 1015, 1018, another appellate opinion explaining that the holding in
Humphrey is narrow. (Brady, at pp. 1015-1016.) Relying on People v. Herrera (2016)
247 Cal.App.4th 467 (Herrera) and People v. Sotelo-Urena (2016) 4 Cal.App.5th 732(Sotelo-Urena), James claims that there is a split of authority regarding the admissibility
of evidence of a defendant’s mental condition to establish how the defendant “perceived
and responded to events at the time.”
12
James’s reliance on Herrera, supra, 247 Cal.App.4th 467 is misplaced. In
Herrera, the claimed error was the exclusion of expert testimony on how the defendant’s
mental illness affected his mental state at the time of the killing; the defendant argued
that the testimony was relevant to show that he did not harbor the requisite malice and did
not premeditate or deliberate. (Id. at p. 477.) Herrera agreed that exclusion of the
testimony was error and, in its prejudice analysis, included one sentence concerning the
potential relevance of the testimony to the defendant’s claim of self-defense. (Id. at
p. 478.) The court reasoned: “‘The [trial] court’s ruling also prevented the jury from
properly evaluating evidence that would have been relevant to its consideration of the
self-defense, imperfect self-defense and heat of passion instructions given here.’” (Ibid.)
That is all that Herrera had to say about the relation between mental health evidence and
a defendant’s claim of self-defense. Herrera did not analyze the admissibility of
evidence of a defendant’s mental illness for the purpose of demonstrating the objective
reasonableness element of self-defense. “It is, of course, ‘axiomatic that a decision does
not stand for a proposition not considered by the court.’” (Wishnev v. The Northwestern
Mutual Life Ins. Co. (2019) 8 Cal.5th 199, 217.)
In contrast, Sotelo-Urena, supra, 4 Cal.App.5th 732, relied on Humphrey, supra,13 Cal.4th 1073 and concluded that expert testimony about the effect of chronic
homelessness, which the defendant had experienced, was relevant to the objective
reasonableness element of the defendant’s claim of self-defense. (Sotelo-Urena, at
pp. 750-752.) Sotelo-Urena reasoned that the same principles underlying the Supreme
13
Court’s decision in Humphrey applied to “expert testimony explaining why a chronically
homeless individual would experience a heightened fear of aggression,” which “would
assist a jury in weighing the reasonableness of defendant’s belief of imminent harm, as
was central to [the] defendant’s self-defense claim.” (Sotelo-Urena, at p. 751.)
More recently, another Court of Appeal has cautioned that Sotelo-Urena should be
narrowly interpreted along with Humphrey. (Brady, supra, 22 Cal.App.5th at p. 1016.)
According to Brady, “Sotelo-Urena is better read as concluding that expert testimony
regarding chronic homelessness could bear on the issue of reasonableness by showing
that, due to the greater incidence of violence toward homeless persons, ‘a [homeless
individual] might become sensitized and thus able reasonably to discern when danger is
real and when it is not.’” (Brady, at p. 1016, quoting Humphrey, supra, 13 Cal.4th at
p. 1086.)
We agree with the analysis and conclusion in Jefferson, supra, 119 Cal.App.4th
508 and Brady, supra, 22 Cal.App.5th 1008. The holding in Humphrey, supra, 13
Cal.4th 1073 is narrow and does not authorize admission of evidence that James suffered
from PTSD to prove the objective reasonableness element of his self-defense claim. We
therefore conclude that the trial court did not abuse its discretion by excluding the expert
testimony that James suffered from PTSD.
B. Lay Opinion Testimony of Detective Medici
After confirming that Detective Medici had reviewed all of the physical evidence,
the case reports, the witness statements, and the video recordings related to the shooting,
14
the prosecutor asked Detective Medici, “Based on reviewing all of that, all the reports, all
the videos, all the physical evidence, is there any evidence to support that [Vincent] was
involved in any way?” Defense counsel objected based on speculation and lack of
foundation, and the trial court indicated that the question also called for hearsay. The
trial court invited counsel to argue the issue in chambers.
Outside of the presence of the jury, the trial court expressed concern that Detective
Medici opining about Vincent’s involvement on the basis of witness statements would be
hearsay. Defense counsel argued that it was “improper for a prosecutor to ask an
experienced homicide detective to tell a jury that a person was or was not involved.” The
court agreed, explaining that the question would not be allowed because it called for a
conclusion. The prosecutor argued that the questions were relevant because defense
counsel had “essentially brought up that photograph [of Vincent] numerous times to say
that that person had a gun, that person was involved in this, had made some threats.” The
trial court explained that the question of whether Vincent was involved in the shooting
calls for hearsay because Detective Medici could form such an opinion only by
“gathering that information from other witnesses.” The court explained that Detective
Medici would be allowed to “describe what was in the video,” including whether
Detective Medici saw Vincent in the recordings. The trial court cautioned that Detective
Medici’s “conclusion that [Vincent] was involved or not involved in a crime, I think
we’re getting a little shaky there.”
15
After the chambers conference, the prosecutor resumed questioning Detective
Medici, who identified the specific video recordings he had reviewed. Detective Medici
also identified Vincent in one of the cell phone video recordings. After the questions
about the video recordings, the prosecutor asked: “At any point was this individual,
[Vincent]—at any point was this person—seemed to get involved in that shooting?”
Defense counsel objected on the basis of vagueness, and the trial court overruled the
objection. Detective Medici answered the question in the negative. Detective Medici
then testified that on the basis of his review of the video recordings he did not feel that it
was necessary to locate or to talk to Vincent. On cross-examination, Detective Medici
testified that during the course of the investigation he had never identified Vincent. After
eliciting that testimony, defense counsel asked Detective Medici, “[A]s far as watching
this video, all the other videos, and all the other interviews you conducted, you never
focused in on [Vincent], did you?” Detective Medici responded that he had not focused
on Vincent.
James argues that the trial court impermissibly allowed Detective Medici “to
testify that based on his review of the videos [Vincent] was not involved in the shooting,”
which James claims was not of any assistance to the jury.4 James further argues that the
prosecutor’s question eliciting this testimony amounted to misconduct because it violated
4 James also argues that “[t]o the extent that [Detective] Medici relied upon
materials which were not admitted into evidence in forming his opinion this was hearsay
and inadmissible.” James did not make that argument in the trial court, so we do not
consider it. (Williams, supra, 16 Cal.4th at p. 250.)
16
the trial court’s proscription against asking a question about whether Vincent was
involved. We are not persuaded by either argument.
Lay witness opinion testimony is admissible when it is rationally based on the
witness’s perception and helpful in providing a clear understanding of the witness’s
testimony. (§ 800, subds. (a) & (b); People v. DeHoyos (2013) 57 Cal.4th 79, 130
(DeHoyos).) If an investigating law enforcement officer’s testimony meets those
requirements, then the officer may provide lay witness testimony about the significance
of evidence in a case when the subject of the officer’s opinion is not “so far ‘beyond [the]
common experience’ that expert testimony [is] required.” (People v. Lewis (2008) 43
Cal.4th 415, 504, overruled on another ground in People v. Black (2014) 58 Cal.4th 912,
919-920; People v. Maglaya (2003) 112 Cal.App.4th 1604, 1609 [officer’s lay witness
testimony about a shoeprint was helpful to understanding the remainder of the officer’s
testimony].) We review for abuse of discretion the trial court’s admission of lay opinion
testimony. (People v. Sanchez (2016) 63 Cal.4th 411, 456.)
James relies on People v. Torres (1995) 33 Cal.App.4th 37 (Torres) for the
proposition that a law enforcement officer cannot testify about “a person’s involvement
or non involvement in an incident.” Torres does not stand for that far-reaching
proposition. In Torres, the court concluded that the officer had improperly provided an
expert opinion “as to the meaning of the terms robbery and extortion and [expressed] the
opinion the crimes committed in th[at] case were robberies” and thus opined as to the
ultimate fact at issue—that the defendant had committed felony murder. (Id. at pp. 47-
17
48.) Torres is inapplicable because it involved the admissibility of expert testimony. (Id.
at pp. 43-45.)
James did not object in the trial court to Detective Medici’s testimony about
James’s lack of involvement on the ground that the testimony was an improper subject of
expert opinion. It is unclear whether James is arguing on appeal that the evidence was
improperly admitted as expert testimony. In his opening brief, James cites section 801,
the statutory provision governing admission of expert testimony, and cites Torres, supra,
33 Cal.App.4th at page 45, for the proposition that “‘[o]pinion testimony may be
admitted in circumstances where it will assist the jury to understand the evidence or a
concept beyond common experience.’” That is the relevant standard for admitting expert
opinion. (§ 801, subd. (a).) In his opening brief, James does not otherwise identify the
specific basis of his challenge to Detective Medici’s testimony. Because James did not
object at trial to Detective Medici’s testimony on the ground that it was improper expert
testimony, James has forfeited that objection. (People v. Navarette (2003) 30 Cal.4th
458, 507 [evidentiary issue forfeited if not raised at trial]; Williams, supra, 16 Cal.4th at
pp. 208-209 [same].)
Detective Medici opined about whether Vincent “seemed to get involved in [the]
shooting,” and James concedes that the opinion was expressly based on Detective
Medici’s “review of the videos.” In his reply brief, James does not dispute that Detective
Medici’s testimony was rationally based on his personal observations of the video
recordings of the shooting. The jury also viewed the video recordings on which
18
Detective Medici relied and thus was able to draw its own conclusions from the
recordings. But Detective Medici’s testimony was nevertheless helpful to provide the
jury a better understanding of why Detective Medici did not find it necessary either to
locate or to interview Vincent about the shooting and did not otherwise focus on Vincent
in investigating the shooting. Given that Detective Medici’s opinion was rationally based
on his own perception of the videos and was helpful to the jury by providing a better
understanding of his testimony, we conclude that the trial court did not abuse its
discretion by allowing Detective Medici to opine as a lay witness about Vincent’s lack of
involvement in the shooting.5
We also reject James’s argument that the prosecutor’s question about whether
Vincent was involved in the shooting amounted to misconduct because it violated the
trial court’s ruling against eliciting such testimony. “It is well settled that making a
timely and specific objection at trial, and requesting the jury be admonished (if jury is not
5 In his reply brief, James argues for the first time that Detective Medici’s testimony
that Vincent was not involved “asked for a legal conclusion” if it was “based on
everything [Detective] Medici reviewed,” rather than on the video recordings alone. The
argument contradicts James’s argument in his opening brief, in which James
acknowledged that Detective Medici’s opinion about Vincent’s apparent lack of
involvement was “based on [Detective Medici’s] review of the videos.” (Italics added.)
In general, we consider an argument made for the first time in a reply brief forfeited
absent a showing of good cause. (People v. Baniqued (2000) 85 Cal.App.4th 13, 29.)
“Withholding a point until the reply brief deprives the respondent of an opportunity to
answer it . . . .” (Ibid.) The People responded to the argument made in the opening brief
and argued that “[t]he trial court properly admitted [Detective] Medici’s testimony about
[Vincent] because [Detective] Medici opined on his personal review of [the] video
footage of the incident, and his perception[s] of the evidence helped the jury understand
his decision-making as the case agent in the investigation.” (Italics added.) Because
James has not demonstrated good cause for his failure to raise his new argument earlier,
we consider the argument forfeited.
19
waived), is a necessary prerequisite to preserve a claim of prosecutorial misconduct for
appeal.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328 (Seumanu).) James argues
that an objection to that question would have been futile because his objections to the
same question on other grounds were overruled. (People v. Zambrano (2004) 124
Cal.App.4th 228, 237 [discussing the futility exception to failing to object to
prosecutorial misconduct].) Assuming for the sake of argument that an additional
objection to the question would have been futile, James’s argument still fails because any
error was harmless. “Reversal of a judgment of conviction based on prosecutorial
misconduct [under state law] is called for only when, after reviewing the totality of the
evidence, we can determine it is reasonably probable that a result more favorable to a
defendant would have occurred absent the misconduct.” (People v. Castillo (2008) 168
Cal.App.4th 364, 386; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)6
The trial court ruled that the prosecutor could not ask Detective Medici about
Vincent’s involvement in the shooting because “I’m sure he’s gathering that information
from other witnesses.” The prosecutor was given latitude to ask Detective Medici to
describe what he saw on the video recordings. The prosecutor then questioned Detective
Medici about whether Vincent “seemed to get involved in that shooting.”
But Detective Medici also testified without any objection that “there was no
evidence that [Vincent] was involved.” He further testified on direct examination and
6 We later address James’s argument about the cumulative prejudicial effect of the
alleged errors, but we first analyze the prejudicial effect of each error separately before
we look at the prejudicial effect of the errors cumulatively. (People v. Woodruff (2018) 5
Cal.5th 697, 783; People v. Bolden (2002) 29 Cal.4th 515, 567-568.)
20
redirect examination without any objection that he did not focus on Vincent in the
investigation. In addition to the testimony elicited by the prosecutor, defense counsel
asked Detective Medici if he had focused on Vincent on the basis of “this video, all the
other videos, and all the other interviews you conducted.” Given the amount of similar
testimony that was admitted without objection, including testimony elicited by defense
counsel, there is no reasonable probability that the jury would have reached a result more
favorable to James absent the alleged error. (People v. Johnson (2019) 8 Cal.5th 475,
518 [presumed error harmless in light of similar evidence admitted]; Perumean v. Wills
(1937) 8 Cal.2d 578, 583 [same].) We therefore conclude that any error in allowing the
prosecutor to question Detective Medici about James’s involvement was harmless.
C. Sustained Evidentiary Objections Based on Relevance
James argues that the trial court abused its discretion by ruling that testimony on
two issues was irrelevant and hence inadmissible. We find any error harmless.
Only relevant evidence is admissible. (§ 351.) Relevant evidence includes
“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.” (§ 210.) “‘The test of relevance is whether the evidence
tends “logically, naturally, and by reasonable inference” to establish material facts such
as identity, intent, or motive.’” (People v. Harris (2005) 37 Cal.4th 310, 337 (Harris).)
“The trial court has broad discretion in determining the relevance of evidence.” (Ibid.)
21
We review for abuse of discretion the trial court’s ruling on the admissibility of evidence.
(Ibid.)
First, James contends that the trial court improperly excluded testimony that James
was carrying a gun on the day of the shooting for self-defense because James had
previously been the victim of an unrelated shooting. The trial court excluded the
testimony as irrelevant and also under section 352, explaining that such evidence was
“not probative” and “also prejudicial.” James challenges the trial court’s conclusion that
the evidence was not relevant. If that conclusion was erroneous, the error would affect
the analysis under section 352—relevant evidence has more probative value than
irrelevant evidence. But James does not make that argument or in any way challenge the
trial court’s exclusion of the testimony under section 352. He has therefore forfeited any
challenge to the trial court’s exclusion of the evidence under section 352. (See Ben C.,
supra, 40 Cal.4th at p. 544, fn. 8.) We consequently need not and do not analyze whether
the trial court erred by determining that the evidence was not relevant. The trial court’s
exclusion of the testimony under section 352 would remain unchallenged regardless of
any other error.
Second, James argues that the trial court improperly excluded testimony that
Anthony thought James looked nervous when Vincent threatened to shoot James at the
bus terminal. After Anthony testified that during the confrontation at the bus terminal
Vincent threatened to shoot James’s car, defense counsel asked, “Did Mr. James appear
to be nervous?” The trial court sustained the prosecutor’s relevance objection. James
22
contends that the ruling was erroneous because James’s purportedly nervous appearance
“immediately after this threat was made suggested that he took this threat seriously” and
thus was relevant to James’s claimed belief that he needed to use deadly force to defend
himself at the park. We agree. The entire theory of James’s case was that he feared for
his life because he believed that Vincent was armed at the park, which James claimed to
have learned from the confrontation at the bus terminal. How Vincent’s threat at the bus
terminal affected James was relevant to how James later perceived his circumstances at
the park when he realized that Vincent was present. The trial court therefore erred by
excluding Anthony’s testimony about whether James appeared nervous when threatened
by Vincent at the bus terminal.
The error was not prejudicial, however. It is not reasonably probable that a
different outcome would have resulted if Anthony had been allowed to answer the
question and answered that James appeared nervous. (People v. McDaniel (2019) 38
Cal.App.5th 986, 1005 [“Evidentiary errors under state evidence rules are evaluated
under the ‘reasonable probabilit[y]’ standard of prejudice announced in [Watson]”].)
Anthony’s testimony that James appeared nervous would have added credibility to
James’s testimony that he was fearful because James believed that Vincent was armed at
the park. Although James’s reaction to the threat at the bus terminal was relevant to his
later perception of what happened at the park, it was Doe’s command for Vincent to
shoot James and James’s belief that Vincent was armed that caused James to retrieve his
own weapon and shoot. Moreover, Anthony corroborated James’s testimony that
23
Vincent was armed that day and threatened to shoot James’s vehicle with James’s family
inside it. James testified that his fear when he fired his weapon was based on Doe telling
Vincent to “bust on” James, James’s belief that Vincent was armed, and the prior threat
Vincent made at the bus terminal. Given all of that evidence, testimony from Anthony
that James appeared nervous when Vincent threatened him at the bus terminal would not
have added significantly to the probative weight of the evidence supporting James’s
claim that he acted in self-defense when he shot Doe later at the park. It consequently is
not reasonably probable that James would have obtained a more favorable outcome if
Anthony had testified that James appeared nervous when Vincent threatened James at the
bus terminal. We therefore conclude that the error in excluding Anthony’s testimony was
harmless.
D. Sustained Evidentiary Objections Based on Hearsay
James argues that the trial court improperly sustained two evidentiary objections
on the basis of hearsay. We find any error harmless.
“Hearsay may be briefly understood as an out-of-court statement offered for the
truth of its content.” (People v. Sanchez (2016) 63 Cal.4th 665, 674; § 1200, subd. (a).)
“Hearsay is generally inadmissible unless it falls under an exception.” (People v.
Sanchez, supra, at p. 674; § 1200, subd. (b).) We review for abuse of discretion the trial
court’s exclusion of evidence as hearsay. (DeHoyos, supra, 57 Cal.4th at p. 132.)
24
1. Effect on the Listener
James argues that the trial court erred by excluding James’s testimony about the
conversation he overheard between Vincent and Doe at the park before the fight. He
contends that the statements between Vincent and Doe were not offered for their truth but
instead for the nonhearsay purpose of demonstrating their effect on James. After James
put his gun in Kay’s purse, he overheard Doe and Vincent talking with one another. The
trial court sustained the prosecutor’s hearsay objection to defense counsel’s question
about the contents of the conversation. Defense counsel proffered that the statements
were being offered “for the impact on the listener, and it’s critical to the defense in this
case.” Unable to inquire about the contents of the conversation, defense counsel asked
James how the conversation between Doe and Vincent made him feel. James answered,
“It made me feel like it was going to be a one-on-one, and if I was winning, [Vincent]
might hop in it or something.”
“[A]n out-of-court statement can be admitted for the nonhearsay purpose of
showing that it imparted certain information to the hearer, and that the hearer, believing
such information to be true, acted in conformity with such belief.” (People v. Montes
(2014) 58 Cal.4th 809, 863 (Montes).) “The nonhearsay purpose must also be relevant to
an issue in dispute.” (Ibid.)
The content of the conversation between Doe and Vincent before the fight was
probative of James’s belief that he was in imminent danger of harm when Doe allegedly
yelled out for Vincent to “bust on” James. The People claim that the statements were
25
offered for the truth of the matter asserted because James admitted that he could have
departed after hearing the conversation and did not dispute that he later got his gun and
shot at Doe. Thus, the People argue that James’s “reaction to the statement was not the
relevant fact sought to be proved by admission” of the conversation. The argument fails
because it does not show that the testimony was not relevant for the nonhearsay purpose
of proving that James believed he was in danger. When Doe allegedly told Vincent to
“bust on” James, Doe was losing the fight. According to James, the contents of Doe’s
earlier conversation with Vincent included instructions for what Vincent should do if Doe
was losing. How that conversation impacted James therefore was admissible for the
nonhearsay purpose of showing that “it imparted certain information to the hearer, and
that the hearer, believing such information to be true, acted in conformity with such
belief.” (Montes, supra, 58 Cal.4th at p. 863.) The trial court erred by excluding the
testimony.
The error was not prejudicial, however, because it is not reasonably probable that
James would have obtained a more favorable result if the testimony had been admitted.
(Seumanu, supra, 61 Cal.4th at p. 1308 [Watson standard applies to admissibility
determination concerning hearsay evidence].) The testimony about the contents of the
conversation would at most have bolstered James’s testimony about why he was afraid
when he heard Doe tell Vincent to “bust on” James. Although James was not permitted
to recount what Vincent and Doe allegedly said to each other, James was permitted to
testify about the effect the conversation had on him, including his inference that Vincent
26
would “hop in it” if Doe was losing the fight. Thus, although the exact words spoken
between the men were not admitted, the gist of the conversation was relayed through
James’s testimony about how it made him feel. (See People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 415 [any error in admitting hearsay statement was
harmless given that another witness’s “statements conveyed the same information”].)
Given that testimony, the jury could reasonably infer that James believed that Vincent
would assist Doe in the fight. In light of James’s testimony that during the fight Doe told
Vincent to “bust on” James, the jury further could reasonably infer that the assistance
Vincent and Doe discussed before the fight involved Vincent shooting James. In
addition, James repeatedly testified that he fired his weapon because he considered both
Doe and Vincent to be threats to his life because Vincent possessed a weapon. In sum,
we conclude that any error in excluding the contents of the pre-fight conversation
between Vincent and Doe was harmless in light of the other evidence admitted, including
James’s testimony conveying how the conversation affected him.
2. Prior Inconsistent Statement
Doe testified that neither he, Anthony, nor Vincent threatened to shoot at James’s
vehicle at the bus stop. When Anthony testified for the defense, however, he claimed that
Vincent did threaten to shoot at James’s vehicle at the bus stop. Anthony also testified
that since the shooting, he had twice spoke with Doe about the incident, including “about
the threats that were made against Mr. James at the bus stop.” Defense counsel then
asked Anthony, “Did [Doe] acknowledge to you that somebody threatened to shoot Mr.
27
James’s car at the bus stop?” The prosecution objected on the basis of hearsay, the
defense argued the answer would be admissible as a prior inconsistent statement, and the
court sustained the objection. James argues that the trial court’s ruling was erroneous.
We disagree.
“Evidence of a statement made by a witness is not made inadmissible by the
hearsay rule if the statement is inconsistent with his testimony at the hearing . . . .”
(§ 1235.) “Prior inconsistent statements are admissible under this provision to prove their
substance as well as to impeach the declarant.” (People v. Guerra (2006) 37 Cal.4th
1067, 1144, overruled on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)
Assuming that Anthony would have testified that Doe acknowledged that
somebody threatened to shoot at James’s car, that testimony would not have been
admissible as a prior inconsistent statement because it was not inconsistent with Doe’s
testimony that neither he, Anthony, nor Vincent threatened to shoot at James’s vehicle.
Doe did not testify that nobody threatened to shoot at James’s vehicle, so his alleged later
acknowledgement that “somebody” made such a threat is not inconsistent. Thus, any
direct answer to the question at issue would have been consistent with Doe’s prior
testimony. (People v. Johnson (1992) 3 Cal.4th 1183, 1220 [testimony was not
“necessarily inconsistent” with the witness’s prior statement; the prior statement was
erroneously admitted].) The trial court therefore did not abuse its discretion by sustaining
the hearsay objection.
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E. Cumulative Error Not Prejudicial
James contends that the cumulative effect of the errors he has identified deprived
him of his constitutional right to a fair trial. “Under the cumulative error doctrine, the
reviewing court must ‘review each allegation and assess the cumulative effect of any
errors to see if it is reasonably probable the jury would have reached a result more
favorable to [the] defendant in their absence.’” (People v. Williams (2009) 170
Cal.App.4th 587, 646; People v. Holt (1984) 37 Cal.3d 436, 458 [applying Watson
standard to determining prejudicial impact of cumulative error].) “The ‘litmus test’ for
cumulative error ‘is whether [the] defendant received due process and a fair trial.’”
(People v. Cuccia (2002) 97 Cal.App.4th 785, 795.)
We have identified two evidentiary errors and one potential instance of
prosecutorial misconduct: (1) exclusion of Anthony’s testimony about whether James
appeared nervous when threatened at the bus terminal, (2) exclusion of the content of the
conversation James said he overheard between Doe and Vincent, and (3) the prosecutor’s
asking a question that may have been prohibited by the trial judge’s prior ruling. All of
those errors affected James’s ability to present a complete defense to some extent. Their
prejudicial impact was minimal, however, when they are considered in light of the ample
evidence that James presented supporting his claim that he acted in self-defense at the
park, particularly the admitted evidence that was similar to the evidence that was
erroneously admitted or excluded. For example, Detective Medici testified on cross-
examination that there was no evidence that Vincent was involved in the shooting, and
29
James testified that the conversation between Doe and Vincent at the park led him to
believe that Vincent would intervene if Doe was losing the fight. In addition, although
Anthony’s testimony about whether James appeared nervous when Vincent threatened
him earlier was relevant, it would not have added much to James’s claim that he acted in
self-defense when he shot Doe later at the park in response to a different threat from Doe.
For all of these reasons, we conclude that “there is no reasonable possibility that
the jury would have reached a different result . . . absent any or all of the assumed
errors.” (People v. Masters (2016) 62 Cal.4th 1019, 1079; People v. Stitely (2005) 35
Cal.4th 514, 560 [no cumulative error when the defendant’s claimed errors were rejected
or found “nonprejudicial on an individual basis”]; People v. Garton (2018) 4 Cal.5th 485,
521 [same]; People v. Cunningham (2001) 25 Cal.4th 926, 1009 [same].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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