People v. Pardue CA2/2 ( 2022 )

Filed 4/19/22 P. v. Pardue CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B307663
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA463979)
v.
JOSHUA PARDUE,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Stephen A. Marcus, Judge. Affirmed.
William G. Holzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., Michael Katz and
William H. Shin, Deputy Attorneys General, for Plaintiff and
Respondent.
______________________________
On January 30, 2020, a jury convicted defendant and
appellant Joshua Pardue of three counts of second degree robbery
(Pen. Code, § 211)1 and one count of attempted second degree
robbery (§§ 211, 664). The trial court found that he had two prior
“strike” convictions within the meaning of sections 667,
subdivisions (b) through (i), and 1170.12, subdivisions (a) through
(d), and two prior serious felony convictions within the meaning
of section 667, subdivision (a)(1). Defendant was sentenced to 50
years to life in prison.
Defendant timely appealed, asserting that prejudicial
errors occurred during trial which require reversal of the
judgment. Specifically, he asserts that (1) the prosecutor
improperly used peremptory challenges to dismiss African-
American prospective jurors; (2) the trial court improperly
admitted evidence of defendant’s father’s out-of-court
identification; (3) the trial court improperly excluded
demonstrative evidence of defendant’s walk, tattoos, and teeth;
(4) the trial court demonstrated judicial bias in front of the jury;
(5) the trial court improperly refused to dismiss one of his prior
strikes; and (6) cumulative errors resulted in an unfair trial.
Finally, he asks that we review the sealed record of the trial
court’s in camera hearing for the undercover operation.
We affirm the judgment.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
FACTUAL BACKGROUND
I. Prosecution Evidence
A. Robbery and attempted robbery at Horton & Converse
Pharmacy in West Los Angeles
On the evening of October 20, 2017, a pharmacist, Safia
Freije (Freije), and a pharmacy technician, Meynard Go (Go),
were working at a Horton & Converse Pharmacy on Wilshire
Boulevard in West Los Angeles. Two men came inside. One of
them was in a wheelchair and one of them had a gun. Freije ran
away. The armed man pointed the gun at Go’s head, and
demanded that he open the cash register and lie on the floor. Go
complied. The gunman took the cash and both robbers left.
Los Angeles Police Detective Tony Fitzsimmons identified
defendant as one of the robbers based on the pharmacy’s
surveillance video.
B. Robberies at Bright Plaza Pharmacy in Whittier
Two days later, Gina Valdez (Valdez), a pharmacy
technician, was working with the pharmacist and a clerk at
Bright Plaza Pharmacy on South Whittier Boulevard in Whittier.
Three men came into the pharmacy. One of them got out of a
wheelchair and had a gun. They forced the employees onto the
ground and into an office, took narcotics from the pharmacy’s safe
and money from Valdez’s purse, and left. Valdez identified
defendant in court as one of the robbers.
C. Defendant’s admissions
Defendant had an audio-recorded conversation with an
informant in jail. Defendant admitted that he falsely told the
police that he did not recognize who was in the crime scene
photos that they showed him. Defendant knew that those were
photos of him. Defendant explained to the informant that the
3
police also showed him a photo of his car but he denied it was his
when he spoke with them. Defendant told the informant that the
car was not registered to him.
D. Damaging document found on defendant’s cellphone
A security manual for pharmacies was found on defendant’s
cellphone.
E. Cellphone location records
Defendant’s cellphone records showed that he was near the
crime scenes during the crimes.
F. Jail call between defendant and his girlfriend
Defendant was arrested. During a recorded jail call,
defendant told his girlfriend that his father had identified him in
two videos. The identification hurt his feelings because it was
the only reason he was in jail. The witnesses could not identify
him, there were no fingerprints linking him to the robberies, and
the videos could have been of anyone.
II. Defense Evidence
Detective Alejandro Galvan testified that Go and Freije
could not identify defendant in a photo lineup.
A private investigator, Luis Reynoso (Reynoso), testified
about defendant’s tattoos and the way defendant walks. In
Reynoso’s opinion, defendant did not appear in the Bright
Medical Plaza’s surveillance video.
DISCUSSION
I. No Batson Error
2
Defendant, who is African-American, contends that the
trial court erred when it overruled his objection to the People’s
2 Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
4
peremptory challenges to four African-American prospective
jurors.
A. Relevant proceedings
1. Prospective Juror No. 7
The appellate record does not include the voir dire of
Prospective Juror No. 7 before the prosecutor excused him.
Defendant’s trial counsel stated that this juror “was an older
gentleman . . . from South L.A.,” who was married, had children,
was retired, and previously worked in sales. He served on a prior
jury, but the case settled. Counsel asserted that “there was no
reason to kick him off. There was absolutely nothing there about
him to let him go . . . . He didn’t express any animosity towards
police.”
The trial court found that this individual belonged to a
cognizable class, but that defendant failed to state a prima facie
case. Nevertheless, it asked one of the prosecutors to explain his
reason for excusing this juror. The prosecutor stated: “The
reason, among other things, not only did we find, my partner and
I . . . that [Prospective Juror No. 7] was sleeping at times during
selection, he was also continuously providing outburst[s] and
saying things like, ‘that’s right,’ and, ‘oh, yeah,’ and, ‘mm-hmm.’”
Defense counsel responded that he did not hear any outburst and
vehemently objected. He noted that the trial court did not
admonish this juror. The trial court acknowledged this fact, but
stated that while it did not see him sleeping, it “did hear him
make an outburst.”
The trial court then added: “Someone would say
something, and he would yell out something. At the time I
thought it was strange.” After a recess, the trial court stated that
the “court reporter made a notation in the record that someone
5
had shouted something. I heard and saw” Prospective Juror
No. 7 “shout something . . . and I believe he did it more than one
time.” “I did not hear clearly what he said. What it seemed to
me is he was saying, you know, ‘that’s right,’ or something like
that, and I wondered about it, but that was all I thought.”
Defense counsel argued that everything this prospective
juror said was typical for a juror. While the trial court did not
disagree, it reiterated that defendant failed to present a prima
facie case. It noted that “there are a number of African
Americans still on the jury and in the panel.” The prosecutor
stated that according to his notes, when another prospective juror
said that his brother had been “‘punished too much’ [Prospective
J]uror No. 7] blurted out, ‘mm-hmm.’” The trial court responded,
“Now that you say that, I’m actually going to concur with that,
because that’s exactly when he said something. When they were
talking about punishment he did say something. I didn’t hear
exactly what he said, but he uttered some sounds. I thought at
the time that’s, like, strange.”
2. Prospective Juror No. 143
Not all of the voir dire of Prospective Juror No. 8 is
included in the appellate record. He stated that he was in a car
that was stopped by the police in New York and he testified about
it there. His testimony in that case was contrary to the
testimony of the police officers. One of the prosecutors asked
him, “Can you see how I may have some concerns about you
3 Prospective Juror No. 14 eventually became Prospective
Juror No. 8. After this gentleman was excused, Prospective Juror
No. 15 became Prospective Juror No. 8. To avoid confusion
between the two individuals, we refer to them by their original
numbers.
6
sitting?” He replied, “Absolutely.” The prospective juror stated
that he did not have many feelings about police and if he “[got
stuck] on it,” he “might become a little sad.” He added, “But I
don’t put ‘em all in a group. I think most police officers are
actually quite nice. I’ve had a few bad apples, but I’m not going
to put them all in a group. I think, you know, they’re cool. I don’t
have no problems.” He said that he could be fair.
After the prosecution excused him, defense counsel stated
that this was the second African-American juror that the
prosecutor had excused. Counsel stressed that this juror had
said that most police officers were good.
The trial court noted that the prosecution had excused two
people from the same cognizable group, and that it was “the
opposing party[’s] burden to demonstrate that the challenges
were made for neutral reasons.” It asked one of the prosecutors
to explain his reason for excusing this individual. The prosecutor
explained that Prospective Juror No. 14 “mentioned stop and
frisk as an issue that was negative for him within his overall
beginning statement. But later, what really caught [our]
attention . . . is he had testified in a prior case, it sounded like a
[suppression] issue, and he testified against a cop, who I believe
he had said was lying in his view as well.” The prosecutor
continued: “Given that perspective, it was my fervent belief that
he would view this case through the lens of a defendant rather
than through the lens of a victim or otherwise on the stand.”
Finally, the prosecutor noted that there was another African-
American man still on the jury panel.
The trial court accepted the prosecutor’s explanation as
race-neutral. It noted that the prosecution had exercised eight
peremptory challenges at that point, and only excused two
7
African-American jurors. It added: “I do not believe that . . . the
defense . . . has met the burden of producing evidence sufficient
to draw an inference that discrimination has occurred. That’s the
Batson language.” Also, “there was nothing about this individual
that was comparable to other jurors that were excused or not
excused.”
3. Prospective Juror No. 15
As with Prospective Juror No. 14, not all of the voir dire of
Prospective Juror No. 15 is in the appellate record. Defense
counsel said to him that “some people say they have bad
experiences/good experiences with the police. Would you agree
with me that you can be fair to [defendant], you’ll be fair to the
police as well; would you agree with that?” He replied, “Yeah.
Although I’ve had bad experiences. Yes, I’m a critical thinker, I’ll
make up my own mind in the situation. Every situation is
different.” This prospective juror agreed that he would judge
each person individually, not as part of a group, and he would be
willing to listen to all the witnesses, including the police. He said
that nothing would prevent him from doing that.
The prosecutor then stated to the prospective juror, “I think
[you said yesterday that] . . . you have a relative, a brother, I
think, [convicted of] attempted murder. I think you said
something about he was good for the crime, but the punishment
was too much.” He replied: “I didn’t say good for the crime. I
said I felt the punishment was extreme.” The prosecutor asked
how it would impact his ability to serve as a juror. He responded:
“It’s not my job to render the punishment . . . so that would have
no impact on me figuring out whether or not the crime was
committed.” He believed that his brother “was treated unfairly,”
8
noting that his brother “got enhancements.” But, he still believed
that he could be fair in this case.
After the prosecutor excused this prospective juror, defense
counsel made another Batson motion. He insisted that the
prosecutor had no reason to excuse this juror. In fact, according
to his notes, this prospective juror had a law enforcement job.
When the trial court stated that it did not recall that, defense
counsel suggested that maybe a relative was in law enforcement.
The trial court then said, “I doubt seriously he had a law
enforcement job. I don’t have that in my notes.”
The trial court then stated that this prospective juror was
African-American and found a prima facie case. The prosecutor
then summarized this prospective juror’s remarks discussed
above. He explained: “It didn’t seem to me that he would be a
juror who would see the case through the eyes of a victim
testifying from the stand. It seemed to me he would be much
more likely to focus through the lens of perhaps a defendant, like
his own family member would see the case.”
The trial court denied defendant’s motion and found that
the People had set forth a sincere, race-neutral reason for
excusing Prospective Juror No. 15. It stressed that this
individual’s brother had been convicted of a very serious offense,
attempted murder, and was serving a long prison sentence.
4. Prospective Juror No. 194
One of Prospective Juror No. 19’s sons was in prison for 25
years to life. He did not attend his son’s trial and did not know
anything about the facts of his son’s case. But he agreed that it
was based on felony murder. His son said that he was not guilty.
4 Prospective Juror No. 19 eventually became Juror No. 9.
9
Because his son was 18 years old when he committed his crime,
he was entitled to have the trial court reconsider his sentence
after he served 15 years in prison.
Prospective Juror No. 19 was convicted of bank robbery in
the 1970’s when he was a juvenile. That conviction was
expunged. In 1985, he was convicted of manslaughter. He was
discharged from parole in 1996. Because this individual has this
criminal record, the prison authorities would not allow him to
visit his son. He believed that he was treated unfairly by the
criminal justice system. He was charged with murder but pled
guilty to manslaughter and avoided a potential sentence of 25
years to life. He was not mad at anyone who was involved in that
case.
When asked about the bank robbery, Prospective Juror
No. 19 stated, “[t]hat is one I did not commit but I was convicted
of. But I’m not mad about it because I did not tell on the other
person. That’s hood credit but it doesn’t count for much when I
ended up in jail for 22 months.” He stated that he could be fair to
the prosecution, explaining, “I work with police officers every day
now. I’ve become friends with some of them, and I know that
there are wonderful people who do the same things that we [do].
They even buy me 20-dollar cigars.” “[L]ife has taught me some
stuff, because after I’ve been out, no problems, no traffic tickets,
no nothing.” “Sympathy and empathy—you know, I can
empathize but the truth is the truth.”
After the prosecution excused this juror, defense counsel
brought another Batson motion adding, “This is another African
American juror who has been excused by the prosecution.” “[H]e
didn’t say anything that I thought rose to the level of a
peremptory challenge.” Because this was the fourth prospective
10
juror that the People had excused from the same cognizable class,
the trial court found that defendant had made a prima facie case.
The prosecutor then explained his reasoning for excusing this
individual. After reiterating the voir dire discussed above, the
prosecution did not believe that this prospective juror could
imagine the case from the victim’s perspective.
The trial court denied the motion,5 explaining that there
was a race-neutral reason because the juror’s “family members
[were] caught up in the criminal justice system.” “[N]ot only did
[this prospective juror] have a felony record, he actually indicated
on both cases that he was unjustly accused.”
5. Jury
After the jurors were sworn in, the trial court noted outside
their presence that one alternate juror was African-American and
one juror on the panel of 12 was either African-American or
Hispanic. Defense counsel disputed that the juror on the panel
was African-American.
B. Relevant law
Both the state and federal Constitutions prohibit the use of
peremptory challenges to remove prospective jurors based solely
on group bias, such as race, gender, or ethnicity. (Batson, supra,
476 U.S. at p. 89; People v. O’Malley (2016) 62 Cal.4th 944, 974;
People v. Wheeler (1978) 22 Cal.3d 258, 276–277 (Wheeler).) It is
presumed that the prosecutor exercised peremptory challenges in
a constitutional manner, and the appellant bears the burden of
5 The augmented reporter’s transcript indicates that the
trial court granted defendant’s motion. In light of the trial
court’s remarks, this was obviously wrong. Either the trial court
misspoke or the court reporter transcribed this comment
incorrectly.
11
rebutting that presumption. (People v. Johnson (2015) 61 Cal.4th
734, 755; People v. Manibusan (2013) 58 Cal.4th 40, 76.)
In determining whether the presumption of
constitutionality is overcome, the trial court applies the well-
established three-step inquiry set forth in Batson. (People v.
Taylor (2009) 47 Cal.4th 850, 885.) “‘First, the trial court must
determine whether the defendant has made a prima facie
showing that the prosecutor exercised a peremptory challenge
based on race. Second, if the showing is made, the burden shifts
to the prosecutor to demonstrate that the challenges were
exercised for a race-neutral reason. Third, the court determines
whether the defendant has proven purposeful discrimination.
The ultimate burden of persuasion regarding racial motivation
rests with, and never shifts from, the opponent of the strike.
[Citation.] The three-step procedure also applies to state
constitutional claims [Citations.]’” (People v. Taylor, supra, at
pp. 885–886; see also People v. Thomas (2011) 51 Cal.4th 449,
473; People v. Battle (2021) 11 Cal.5th 749, 772 (Battle).)
The defendant is required to overcome only a “‘low
threshold’” to meet the first step of the Batson test. (Battle,
supra, 11 Cal.5th at p. 773.) “It is satisfied simply by evidence
sufficient to permit us to draw an inference that discrimination
may have occurred. [Citation.]” (Battle, supra, at p. 773.) We
consider whether all the relevant facts surrounding the excusal
“‘“give[] rise to an inference of discriminatory purpose.”’” (Ibid.)
“Certain types of evidence are especially relevant to this
inquiry, including whether the prosecutor has struck most or all
of the members of the venire from an identified group, whether a
party has used a disproportionate number of strikes against
members of that group, whether the party has engaged
12
prospective jurors of that group in only desultory voir dire,
whether the defendant is a member of that group, and whether
the victim is a member of the group in which the majority of the
remaining jurors belong. [Citation.]” (Battle, supra, 11 Cal.5th
at p. 773.)
At this stage, “[w]e may also consider nondiscriminatory
reasons for the challenged strikes that are ‘apparent from and
“clearly established” in the record.’ [Citation.]” (Battle, supra,
11 Cal.5th at p. 773.) But “we may do so only when these reasons
‘necessarily dispel any inference of bias,’ such that ‘“there is no
longer any suspicion . . . of discrimination in those strikes.”’
[Citation.]” (Battle, supra, at p. 773.)
“At the third stage of the Wheeler/Batson inquiry, ‘the
issue comes down to whether the trial court finds the prosecutor’s
race-neutral explanations to be credible. Credibility can be
measured by, among other factors, the prosecutor’s demeanor; by
how reasonable, or how improbable, the explanations are; and by
whether the proffered rationale has some basis in accepted trial
strategy.’ [Citation.] In assessing credibility, the court draws
upon its contemporaneous observations of the voir dire. It may
also rely on the court’s own experiences as a lawyer and bench
officer in the community, and even the common practices of the
advocate and the office that employs him or her. [Citation.]”
(People v. Lenix (2008) 44 Cal.4th 602, 613, fn. omitted.) The
proper focus is on the subjective genuineness of the
nondiscriminatory justifications given, not on their objective
reasonableness. (People v. Reynoso (2003) 31 Cal.4th 903, 924.)
A “‘legitimate reason[]’” for excusing a prospective juror is not a
reason that makes perfect sense, but one that is
nondiscriminatory. (Id. at p. 916.)
13
“Review of a trial court’s denial of a Wheeler/Batson motion
is deferential, examining only whether substantial evidence
support its conclusions. [Citation.] ‘We review a trial court’s
determination regarding the sufficiency of a prosecutor’s
justifications for exercising peremptory challenges “‘with great
restraint.’” [Citation.] We presume that a prosecutor uses
peremptory challenges in a constitutional manner and give great
deference to the trial court’s ability to distinguish bona fide
reasons from sham excuses. [Citation.] So long as the trial court
makes a sincere and reasoned effort to evaluate the
nondiscriminatory justifications offered, its conclusions are
entitled to deference on appeal. [Citation.]’ [Citation.]” (People
v. Lenix, supra, 44 Cal.4th at pp. 613–614.)
C. Analysis
Applying these legal principles, we conclude that the trial
court did not err.
Regarding Prospective Juror No. 7, the trial court correctly
determined that defendant failed to establish a prima facie case
when the prosecutor excused him. He was the first African-
American prospective juror who was excused by a peremptory
challenge. As the California Supreme Court recently iterated,
“‘Although circumstances may be imagined in which a prima
facie case could be shown on the basis of a single excusal, in the
ordinary case . . . to make a prima facie case after the excusal of
only one or two members of a group is very difficult.’ [Citation.]”
(Battle, supra, 11 Cal.5th at p. 776, fn. omitted.) There was no
reasonable inference that the prosecutor acted in a racially
discriminatory manner.
And the prosecution rebutted any prima facie case
regarding this individual. The prosecutor excused him because
14
he blurted out strange comments during voir dire when it was
not his turn to speak.6 A reasonable prosecutor certainly would
excuse a prospective juror behaving so oddly.
Urging us to reverse, defendant argues that his counsel
told the trial court that Prospective Juror No. 7’s “statements
during jury selection were ‘pretty typical’” and “[t]he court did not
disagree.” While that may be true, the trial court also noted that
the man’s behavior was strange.
After Prospective Juror No. 7, the prosecutor excused three
other African-American prospective jurors (Nos. 14, 15, & 19) for
race-neutral reasons.7 Specifically, Prospective Juror No. 14 had
testified in a prior case against a police officer who he thought
was lying, prompting the prosecutor to believe that he would view
the case through the lens of a defendant as opposed to a victim.
Prospective Juror No. 15 had had bad experiences with the police.
He also had a brother convicted of attempted murder, and
Prospective Juror No. 15 believed that his brother had been
treated unfairly and received an “extreme” punishment. Last,
Prospective Juror No. 19 had been convicted of two crimes, and
he believed that he was treated unfairly by the criminal justice
system. Given that these race-neutral reasons are supported by
the appellate record, the trial court did not err. (People v. Hardy
(2018) 5 Cal.5th 56, 82 [race-neutral reason that juror believed
police treated him unfairly during prior arrest]; People v. Reed
(2018) 4 Cal.5th 989, 1001 [race-neutral reason because juror’s
6 The trial court agreed that Prospective Juror No. 7 did
engage in this behavior.
7 Defendant concedes that the stated reasons for excusal
were race-neutral under current case law.
15
brother had negative experience with law enforcement when he
was convicted of robbery]; People v. Winbush (2017) 2 Cal.5th
402, 436 [juror’s prior arrest was race-neutral reason]; People v.
Bryant (2019) 40 Cal.App.5th 525, 537 [race-neutral reason that
juror believed her nephew was treated unfairly in driving under
the influence case].)
Furthermore, where, as here, the prosecutor accepts a
prospective alternate juror from the cognizable class, and that
juror serves as an alternate, this “further lessens any inference of
discrimination.” (Battle, supra, 11 Cal.5th at p. 777.)
Defendant asks us to consider recently enacted Code of
Civil Procedure section 231.78 as “persuasive guidance on how to
ensure appellant’s constitutional right to an impartial jury.”9 We
decline to do so.
8 This statute prohibits the use of peremptory challenges
based upon specific criteria. Pursuant to subdivision (e), 13
reasons are “presumed to be invalid unless the party exercising
the peremptory challenge can show by clear and convincing
evidence that an objectively reasonable person would view the
rationale as unrelated to a prospective juror’s race” among other
groups. (Code Civ. Proc., § 231.7, subd. (e).) Included in the list
of 13 is “having a negative experience with law enforcement or
the criminal legal system,” “[e]xpressing a belief . . . that criminal
laws have been enforced in a discriminatory manner,” and
“[h]aving a close relationship with people who have been stopped,
arrested, or convicted of a crime.” (Code Civ. Proc., § 231.7, subd.
(e)(1)-(3).)
9 Defendant concedes that the statute is not binding. (Code
Civ. Proc., § 231.7, subd. (i) [“This section applies in all jury trials
in which jury selection begins on or after January 1, 2022”].)
16
II. Defendant has not Shown that the Informant Could Present
Exculpatory Evidence
Defendant asks us to independently review the sealed
record of the trial court’s in camera hearing to determine whether
the confidential informant’s identity should have been disclosed
to him. On August 19, 2021, we granted his separate request to
review that record.
“[T]he prosecution must disclose the name of an informant
who is a material witness in a criminal case or suffer dismissal of
the charges against the defendant.” (People v. Lawley (2002)
27 Cal.4th 102, 159 (Lawley).) As defendant agrees, “[a]n
informant is a material witness if there appears, from the
evidence presented, a reasonable possibility that he or she could
give evidence on the issue of guilt that might exonerate the
defendant. [Citation.]” (Ibid.; People v. Bradley (2017)
7 Cal.App.5th 607, 620.) It is the defendant’s burden to produce
“‘“‘some evidence’”’ on this score. [Citations.]” (Lawley, supra, at
pp. 159–160.)
After independently reviewing the in camera record, we
conclude that the trial court correctly determined that the
informant’s identity should not have been disclosed. Defendant
failed to make any showing that the informant could present
exculpatory evidence. Thus, there was no basis to disclose his
identity.
III. Defendant’s Father’s Out-of-Court Identification was Properly
Admitted
Defendant contends that his father’s out-of-court
identification of him was improperly admitted.
17
A. Relevant proceedings
1. Pretrial hearing
As set forth above, in a recorded jail call, defendant told his
girlfriend that his father, William Pardue (William),10 had
identified him in two videos; the identification hurt his feelings
because it was the only reason he was in jail.
Before the prosecution case began and outside the jury’s
presence, the trial court held a hearing on admissibility of
William’s identification. In response to defendant’s hearsay
objection, the prosecutor replied that William’s statement was
not hearsay because it was not being offered for its truth.
Rather, it was being offered to explain defendant’s reaction. The
prosecutor added that “we certainly can have our [investigator]
come in and explain that he interviewed [William] and showed
him photographs. And we don’t have to get into the statement as
to what [William] said.” The trial court determined, “This is
being offered for the nonhearsay purpose of showing that
[defendant] has consciousness of guilt, because he learned that
his father identified him and he . . . was hurt by that.”
The trial court added that it would allow the prosecution
“to introduce this. The contextual thing I think is still important,
but . . . it’s a sufficient foundation if they put on evidence that the
father . . . participated in an identification . . . or whatever it is.
And they don’t ever have to say what he said. They only have to
say that he said that, and then the reaction of the defendant
. . . and the jury gets to decide whether or not that’s
10 Because defendant has the same last name as his father,
his father is referred to by his first name to avoid confusion. No
disrespect is intended.
18
consciousness of guilt.” Finally, the trial court determined that it
was not “a hearsay issue.”
2. Conversation with counsel at sidebar
During its case-in-chief, the prosecutor asked Detective
Fitzsimmons what William said when Detective Fitzsimmons
showed William a photograph. Defendant objected. At sidebar,
the trial court recalled that it had held a hearing on this issue. It
added that its prior ruling was not definitive, as far as it
remembered. When the trial court said that William’s statement
was hearsay, the prosecutor replied that this statement was not
being offered for its truth. Rather, it was relevant because
defendant told his girlfriend that William identified him. Thus,
it showed defendant’s guilty conscience, among other things.
The trial court stated that “there [was] a nonhearsay
purpose” to the statement. And, regardless, “the jury [was] going
to find out that” William identified defendant “because they’re
going to get [defendant’s] statement . . . in which he complains
about” that. Defense counsel acknowledged that the trial court
had already determined that it would admit defendant’s
statement to his girlfriend. But defense counsel complained that
he could not cross-examine William about what he told Detective
Fitzsimmons. The trial court replied that the jury would learn
anyway that William identified his son because defendant told
his girlfriend that, thereby reducing any prejudice of William’s
statement to Detective Fitzsimmons. The trial court added, “I
have to consider the fact that contextually, there’s no meaning to”
defendant’s conversation with his girlfriend, “unless you know
this.” It continued: “I’m going to tell the jury that we don’t have
[William] here, that it’s not coming in for the truth of the matter.”
19
3. Trial court’s explanation to the jury
After this exchange, the trial court told the jury: “We’re
going to hear a statement now, and . . . I’m going to try to give
you an admonishment to explain how to use this evidence.
Normally when a witness is not before you, you keep hearing this
objection ‘hearsay,’ if someone repeats what someone else said,
and the person is not present before you, then normally the
hearsay rule applies, and that statement can’t come in, but
there’s lots of exceptions to the hearsay rule, first of all.
“Secondly, sometimes the statement can come in not for the
truth that what the person said was true, but maybe to help
explain something else, like for example if . . . hypothetically a
police officer is testifying and he said, ‘I came to the scene and I
said, you know, where did the suspect go?’ And the person who is
at the scene says, ‘He went that way,’ and then the police officer
runs that way to go find the person, that statement would come
in, not for the truth that the person went that way, but to help
explain why the officer ran down the block in that direction. So
that is one example. There are other examples.
“But anyway, I’m going to allow the statement to come in
that the officer got from Mr. William Pardue, but I’m going to
advise you that it’s not coming in for the truth of the matter, that
what the father is saying is true, but it’s coming in, and you will
discover this, to help explain later testimony, . . . and the state of
mind of somebody who heard about what happened, what is going
to be described to you now.
“So I’m limiting it. You’re not to accept what is being said
is true based on this testimony, but you may consider it later on
when other evidence comes in, and I will actually link it or tell
20
you when that other evidence comes in. Anyway, I’m allowing it.
I’ve limited it.”
4. Prosecution’s resumed examination of Detective
Fitzsimmons
The prosecutor asked Detective Fitzsimmons what William
told him when Detective Fitzsimmons showed William a photo.
Detective Fitzsimmons replied that William said, “‘That’s
[defendant] right there. What did he do?’” Before defendant
objected, the trial court stated, “The last part is stricken.”
5. Trial court’s conversation with counsel
Later, outside the jury’s presence, the trial court asked the
prosecutor whether he was trying to get a mistrial by eliciting the
stricken statement. The prosecutor apologized and replied that
he had seen the stricken statement before but had not focused on
it and did not remember it. The trial court explained, “There’s a
benign aspect to what he said. You can look at it in two ways:
what did [defendant] do because [Detective Fitzsimmons is] a
police officer, [William is] asking what did [defendant] do; or it
could also be taken in another context, what did [defendant] do
now, meaning the suggestion that, you know, this is some kind of
pattern.”
Defense counsel said that he did not want a mistrial.
6. Prosecution’s continued case-in-chief
During Detective Eduardo Aguirre’s testimony, the trial
court stated: “I’m just going to clue the jury in, remember that
we had the other officer testify this morning and I let it in not for
the truth of the matter, it’s linked to this, it’s linked to how it
may or may not have affected, if they identified the voices on the
tape, the defendant.
“Does everybody understand what I’m saying?
21
“That’s why it’s coming in, as to whether or not it had an
impact or effect on the state of mind of the defendant. Okay?”
None of the jurors suggested that they were confused by this
admonition. The trial court then admitted defendant’s audio-
recorded conversation with his girlfriend in jail.
B. Defendant forfeited his Evidence Code section 352
contention
Defendant argues that the trial court should have excluded
the challenged evidence under Evidence Code section 352. But
he did not object on that ground in the trial court. Therefore, he
failed to preserve this contention. (People v. Ervine (2009)
47 Cal.4th 745, 777 [hearsay objection did not preserve Evid.
Code, § 352 claim]; cf. People v. Bryant, Smith and Wheeler (2014)
60 Cal.4th 335, 413 [relevance objection did not preserve Evid.
Code, § 352 contention].)
Even if defendant had not forfeited his Evidence Code
section 352 contention, it lacks merit. The trial court
independently admitted defendant’s statement to his girlfriend,
which he does not challenge on appeal. That statement referred
to this identification. Thus, Detective Fitzsimmons’s testimony
about this identification was not prejudicial. And it had
probative value because it allowed the jury to understand the full
context of defendant’s admissions to his girlfriend. There was no
error.
C. The trial court correctly admitted the identification
because it was not hearsay
A statement is not hearsay if it is offered to prove
consciousness of guilt, rather than the truth of the matter.
(People v. Letner and Tobin (2010) 50 Cal.4th 99, 157.) Here, the
trial court correctly admitted William’s identification of
22
defendant not to show that the identification was accurate, but to
show that defendant believed that it was accurate, and he
believed that William’s cooperation with the police was damaging
evidence. This evidence proved that defendant was conscious of
his guilt. (Cf. People v. Bowman (2011) 202 Cal.App.4th 353, 366
[the defendant demonstrated consciousness of guilt by urging a
witness not to cooperate with police].)
William’s question to Detective Fitzsimmons, “‘What did
[defendant] do?’” was stricken from the record. We presume that
the jurors followed the trial court’s instruction that this was
stricken. (People v. Pearson (2013) 56 Cal.4th 393, 414.)
D. Any alleged error was harmless
Even if the trial court had erred, any such error would have
been harmless as a matter of law. If the trial court had excluded
Detective Fitzsimmons’s testimony about William’s identification
of defendant, the jury still would have known about that
identification, as noted above. William’s question to Detective
Fitzsimmons, “‘What did [defendant] do?,’” did not show that
William knew that defendant did anything. It was merely a
question that a concerned father asked a police officer.
Moreover, the other evidence of defendant’s guilt was
compelling. He admitted to the informant that he was the
individual in the crime scene photos, and that his car was
present. The cellphone records reflected that defendant was near
both crime scenes during the offenses. Detective Fitzsimmons
identified defendant as one of the robbers at Horton & Converse
based on the surveillance video. Valdez identified defendant as
one of the robbers at Bright Plaza Pharmacy. And, defendant’s
cellphone contained a security manual for pharmacies.
23
Defendant notes that the jury received a late discovery
instruction regarding some of the cellphone evidence, which
showed that defendant was near the Bright Plaza Pharmacy
crime scene. But, as discussed infra, other cellphone records
were timely disclosed and established the same fact. Given all
the evidence, any error would have been harmless under any
standard. (People v. Seumanu (2015) 61 Cal.4th 1293, 1308
[standard set forth in People v. Watson (1956) 46 Cal.2d 818, 837
(Watson) applies when a trial court erroneously admits hearsay];
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).)
IV. The Trial Court did not Abuse its Discretion by Excluding
Certain Defense Evidence
Defendant argues that the trial court improperly excluded
his demonstration of his tattoos, teeth, and manner of walking.
A. Relevant proceedings
During the testimony of defense witness Reynoso, defense
counsel asked the trial court whether defendant could stand up
and walk to the jury. Defense counsel “wanted to show
[defendant’s] mannerism, the way he walks. He also has a gap in
his teeth. I asked . . . every witness, ‘Did you see a gap?’ I want
to show the gap. . . . I [also] want the jurors to see in person what
his neck looks like because . . . part of our defense is identity. He
has tattoos on his right neck and so forth.”
Implicitly referring to defendant’s appearance in the
surveillance videos, the trial court noted that defendant wore a
sweater that covered much of his neck. It ruled that defendant
could use photographs, rather than personally demonstrate his
physical appearance, explaining that defense counsel had already
“shown the tattoos to the ninth degree. I mean, you’ve had every
possible picture of tattoos.”
24
The trial court added that “[t]he walking part [was]
problematic because [defendant] can walk in any manner he
wants so I don’t know how that could possibly be evidence to
show how he walks because he can basically walk the way he
thinks he should walk . . . .” And, the conditions at trial and at
the crime scenes were not the same. Defense counsel replied that
the conditions did not need to be identical. The trial court then
noted that the witnesses were not even near defendant during
the robberies. The implication was that they could not notice any
tattoos that he had.
The trial court stated that this was an Evidence Code
section 352 issue. It explained, “I think it’s really problematic.
You’re creating a false situation that their viewing of him is just
like the witnesses viewed him, and he’s dressed differently, they
were frightened of a robbery.” Moreover, “[h]e’s gotten up three
or four times, taken off his glasses, looked at [the jury].” And, “I
don’t know when he got these tattoos. . . . I have no definitive
proof . . . those were the tattoos he had at the time of the robbery.
It’s very easy to get tattoos.” Defense counsel replied that an
officer documented that defendant had tattoos when he was
arrested. But, the trial court noted that defendant was arrested
nine weeks after the robberies.
Ultimately, the trial court denied defendant’s request.
B. Relevant law
When a party offers evidence of a demonstration “‘to test
the truth of testimony’” that a particular “‘thing occurred,’” it “‘is
admissible only where (1) the demonstration is relevant, (2) its
conditions and those existing at the time of the alleged
occurrence are shown to be substantially similar and (3) the
evidence will not consume undue time or confuse or mislead the
25
jury. [Citation.] The party offering the evidence bears the
burden of showing that the foundational requirements have been
satisfied.’ [Citation.]” (People v. Rivera (2011) 201 Cal.App.4th
353, 363 (Rivera).)
“To be admissible, demonstrative evidence must satisfy two
requirements: first the evidence must be a reasonable
representation of that which it is alleged to portray; and second,
the evidence must assist the jurors in their determination of the
facts of the case, rather than serve to mislead them.” (Rivera,
supra, 201 Cal.App.4th at p. 363.) The demonstration “must
accurately depict what it purports to show.” It “must be relevant
to an issue in dispute ‘and “must have been conducted under at
least substantially similar, although not necessarily absolutely
identical, conditions as those of the actual occurrence.”’” (Ibid.)
However, “‘“the physical conditions which existed at the time [of]
the event”’” do not need to “‘“be duplicated with precision,”’” and
the proponent of the evidence is not required to show “‘“‘that no
change has occurred between the happening of the event and the
time of the reenactment.’”’” (Ibid.)
The abuse of discretion standard applies to the trial court’s
exclusion of demonstrative evidence. (People v. Miles (2020) 9
Cal.5th 513, 587.)
C. Analysis
The trial court did not abuse its discretion. Because
defendant could have gotten tattooed during the nine weeks
between the robberies and his arrest, and because he could have
concocted a phony manner of walking in the courtroom that did
not depict the true way he walked, the trial court sensibly
excluded this evidence.
26
Furthermore, evidence of defendant’s tattoos and any gap
in his teeth was not relevant if the witnesses did not see any
tattoos or his mouth during the commission of the crimes. As the
trial court pointed out, the witnesses were not near defendant
during the robberies. Some witnesses avoided looking at him
closely because they were afraid to do so or they were warned not
to do so.
To the extent that the tattoos were relevant, the
demonstration would have been cumulative as defendant had
already showed the jury several photos of his tattoos. Similarly,
evidence about defendant’s manner of walking was cumulative as
Reynoso had testified about it.
The court also excluded this evidence under Evidence Code
section 352. It is well-settled that “‘“[w]e will not disturb a trial
court’s exercise of discretion under Evidence Code section 352
‘“except on a showing that the court exercised its discretion in an
arbitrary, capricious or patently absurd manner that resulted in
a manifest miscarriage of justice.”’”’ [Citation.]” (People v.
Steskal (2021) 11 Cal.5th 332, 357.) After all, the “trial court is
better able to assess prejudice from the display of physical
evidence.” (Ibid.) For the reasons set forth above, the trial court
did not abuse its discretion in excluding the subject evidence
pursuant to Evidence Code section 352.
D. Any error would have been harmless
Even if the trial court had erred, any such error would have
been harmless under either Watson or Chapman. As set forth
above, the excluded evidence was cumulative, and there was very
strong evidence of defendant’s guilt.
27
V. Alleged Judicial Misconduct
Defendant contends that the trial court made disparaging
remarks to his defense counsel, which prejudiced him.
Specifically, he assigns eight incidents of error.
A. Forfeiture
“As a general rule, a specific and timely objection to judicial
misconduct is required to preserve the claim for appellate
review.” (People v. Seumanu, supra, 61 Cal.4th at p. 1320.)
Although defendant asserts that there are eight incidents
of bias or judicial misconduct, he only made a timely objection
regarding the eighth alleged incident. Because he did not
contemporaneously object on these grounds regarding any of the
other alleged incidents, he has forfeited his objection on appeal.
Regarding the fifth alleged incident, defense counsel did
tell the trial court that when it admonished him in front of the
jury, “It hurts me and the defense.” But that was insufficient.
(People v. Sturm (2006) 37 Cal.4th 1218, 1237 [judicial
misconduct claims are not preserved for appellate review if no
objections were made on those grounds at trial].)
Regarding the sixth alleged incident, defense counsel
objected shortly before the jury instructions were given
that the trial court “admonished me in front of the jury . . . ,
impugned my integrity in front of the jury [during closing
argument, and] hurt my client’s Sixth Amendment right to
adequate counsel.” That was not a timely objection. (Cf. People v.
Rivera (2019) 7 Cal.5th 306, 334 [defendant forfeited claim that
prosecutor committed misconduct in closing argument when
defendant raised it after closing argument was finished]; People
v. Lewis (2008) 43 Cal.4th 415, 503 [defendant failed to preserve
foundation objection when he did not raise it until relevant
28
witness left stand], disapproved on other grounds in People v.
Black (2014) 58 Cal.4th 912, 919–920; People v. Cunningham
(2001) 25 Cal.4th 926, 989 [defendant failed to preserve
suggestive identification issue when he did not raise it until he
brought a section 1118.1 motion]; People v. Mickle (1991)
54 Cal.3d 140, 187, fn. 31 [defendant forfeited relevance objection
when he waited until next day to raise it].)
In his written new trial motion, defendant argued that the
trial court demonstrated bias in the third, sixth, and eighth
incidents listed below. But it was too late for defendant to raise
those claims in a new trial motion. (People v. Vieira (2005) 35
Cal.4th 264, 289 [defendant failed to preserve claim that trial
court erred in voir dire when he did not raise it until new trial
motion]; People v. Memory (2010) 182 Cal.App.4th 835, 856, fn. 6
[“Raising an evidentiary issue only belatedly in a motion for a
new trial does not preserve the issue for appeal”].)
On appeal, defendant acknowledges that he failed to object.
He argues that he is excused from objecting because an objection
would have been futile. We disagree. “Only claims of ‘pervasive
judicial bias’ are preserved in the absence of an objection, on the
ground that objection in that instance may be futile.” (People v.
Armstrong (2019) 6 Cal.5th 735, 799.) Stated differently, “a
defendant’s failure to object does not preclude review ‘when an
objection and an admonition could not cure the prejudice caused
by’ such misconduct.” (People v. Perkins (2003) 109 Cal.App.4th
1562, 1567.)
Here, defendant has not shown either pervasive judicial
bias or that an objection would have been futile. He cites to only
eight isolated incidents within 1,670 pages of reporter’s
transcript. (People v. Fudge (1994) 7 Cal.4th 1075, 1107 [“A trial
29
court commits misconduct if it ‘persists in making discourteous
and disparaging remarks to a defendant’s counsel . . . and utters
frequent comment from which the jury may plainly perceive that
the testimony of the witnesses is not believed by the judge, and in
other ways discredits the cause of the defense . . .”].) And he does
not demonstrate how or why an objection would have been futile.
Defendant’s reliance upon People v. Sturm, supra, 37
Cal.4th 1218 is misplaced. In that case, “the trial court ‘belittled
defense witnesses on several occasions’ [citation], repeatedly
answered questions (once incorrectly) for a defense witness
[citation], ‘disparaged defense counsel’ on multiple occasions
[citation], and ‘interposed [its] own objections to questions asked
by defense counsel’ on ‘numerous occasions’ [citation]. The trial
court also compounded its behavior by admonishing the jury that
it was not biased against defense counsel, but doing so in a way
that implied that defense counsel did not understand the rules of
evidence.” (People v. Banks (2014) 59 Cal.4th 1113, 1177–1178,
overruled in limited part on other grounds in People v. Scott
(2015) 61 Cal.4th 363, 391, fn. 3.) Those facts are a far cry from
what occurred during this trial.
B. Defendant did not demonstrate judicial bias or
misconduct
Regardless of this procedural obstacle, defendant has not
demonstrated judicial bias or misconduct.
“‘[T]rial judges “should be exceedingly discreet in what they
say and do in the presence of a jury”’ [citation] and their
comments ‘“must be accurate, temperate, nonargumentative, and
scrupulously fair”’ [citation].” (People v. Nieves (2021) 11 Cal.5th
404, 477 (Nieves).) But, a “‘“trial court has both the duty and the
discretion to control the conduct of the trial.”’” (Ibid.) “‘“‘[I]t is
30
well within [a trial court’s] discretion to rebuke an attorney,
sometimes harshly, when that attorney asks inappropriate
questions, ignores the court’s instructions, or otherwise engages
in improper or delaying behavior.’”’ [Citation.]” (Nieves, supra,
at p. 477.) “A trial court should of course refrain from making
comments before the jury that might suggest it has allied itself
with the prosecution.” (People v. Seumanu, supra, 61 Cal.4th at
p. 1320.) Thus, as set forth above, a “‘trial court commits
misconduct if it “persists in making discourteous and disparaging
remarks to a defendant’s counsel.”’” (Ibid.)
1. Defense counsel tried to inject irrelevant evidence
to promote sympathy for defendant
At trial, defendant tried to introduce evidence that
defendant had “meningitis of the brain” that was “killing him.”
The prosecution objected, and the trial court sustained the
objection, stating: “If you understood [Evidence Code section]
356, you would understand what [the prosecutor’s] saying.”
On appeal, defendant contends that the trial court
displayed bias when it made this comment in front of the jury.
He is mistaken. The trial court told defense counsel a moment
later at the bench that as far as it understood, defendant never
told the police, “‘I can’t do the interview or I don’t understand
what you’re saying or something because of my brain condition.’”
The trial court invited defense counsel to tell it that it was wrong
about that. But defense counsel did not do so. Therefore, the
trial court explained that his attempt to introduce evidence of
defendant’s meningitis was merely a “pitch for sympathy.” And
as the trial court explained at the new trial hearing, it believed
that defense counsel committed a “flagrant foul” by making “a
pitch for sympathy without any relevance at all to this case.” For
31
that reason, the trial court had the discretion to rebuke counsel
for engaging in improper behavior. (Nieves, supra, 11 Cal.5th at
p. 477.)
2. Defense counsel tried to introduce questionable
evidence in the jury’s presence without first giving the trial court
the opportunity to determine whether the evidence was relevant
and unduly prejudicial
When defendant asked the trial court to have defendant
stand up and walk over to the jury, the trial court stated: “Let’s
approach. This is not a proper way to do this.” Defendant argues
that the trial court’s comment was rude.
Because the proffered evidence was subject to the trial
court’s broad discretion, defense counsel should have given the
court an opportunity outside the jury’s presence to consider the
evidence carefully, and rule on whether to admit it. Instead,
defense counsel asked the trial court for permission in front of the
jury. He did not alert the trial court in advance, outside the
jury’s presence.
The dialogue that occurred at side bar demonstrates the
trial court’s understandable frustration with defense counsel.
The trial court stated to defense counsel: “I’ve never seen
anybody without informing the court before they’re going to do
that ask in front of a jury, never in my entire career.” Defense
counsel apologized.
Despite its frustration, the trial court expressed only slight
annoyance about this issue in front of the jury. It did not
demonstrate judicial bias.
32
3. In closing argument, defense counsel tried to
undermine the trial court’s ruling that the prosecution was not
required to disclose information about the informant
Defendant complains that the trial court admonished his
trial counsel during closing argument when his attorney
repeatedly told the jury that it did not know anything about the
informant’s identity. At the new trial hearing, the trial court
correctly explained why this did not amount to judicial
misconduct or bias. It stressed that it held an in camera hearing
about whether the prosecution had to disclose information about
the informant to defendant. Defense counsel stated, “I wasn’t
percipient to that.” The trial court replied, “But I made a ruling
after the in camera hearing.” He acknowledged, “Yeah, that we
couldn’t know who was the identity of the person.” He insisted,
“But that doesn’t preclude me from saying to the jury: ‘You don’t
know who the identity is.’”
Defense counsel’s explanation was meritless. When a court
rules that the prosecution is not required to disclose information
to the defense, defense counsel is not allowed to undermine that
ruling by encouraging the jury to speculate about what that
undisclosed information was. As the trial court explained at the
new trial hearing, this “seemed to me to [violate] the court’s
ruling that the identity of the [informant] was confidential.” The
trial court was allowed to admonish defense counsel for his
improper argument. (Nieves, supra, 11 Cal.5th at p. 477.)
4. Defense counsel falsely suggested to the jury that
the prosecution misled it about the audio recordings
Immediately after the last ruling, defense counsel said this:
“But one thing we do know is that that was deeply edited. And
there were many questions I was asking Detective Aguirre: ‘Was
33
this on there?’ Remember I had the transcript and I was showing
it to him. No, this wasn’t on— this was said, but they didn’t play
that in front of you. This was said, but they didn’t play that in
front of you. In other words, had I not asked that, you never
would have known that, because they only played the edited
version of what was said.
“And so I think that puts that Perkins[11]—they call it ‘a
Perkins operation,’ but I would call it ‘a trap.’ They call it ‘an
agent.’ I would call it ‘Mr. X.’ And I’m not going to dwell on that,
I’m going to move on now, but I want you to think about that.
When you think about what was said, did we ever get a chance to
see anything of what was said? Was there any video? Did we
ever get a chance to see that? Think in your mind’s eye, have a
picture in your mind’s eye. It’s got to be blank because you didn’t
get to see anything. So it was like a star chamber, I would call it.
Like a secretive operation. Secretive. You see I can’t even really
talk about it too much. So you are the ones who decide what is
fair. You decide, ‘was that fair?’
“Then there was an interview by Detective Fitzsimmons,
and Detective Fitzsimmons told you that the interview he did
with [defendant]—let me back up.
“When the prosecution put on the interview, we didn’t
know that it was edited. When I started to question, we found
out that it was edited, that what they showed to you was an
edited version. And you know that because I kept showing
Detective Fitzsimmons the transcript, and it was probably, you
know, an inch and a half thick, and you know that you got about
11 Illinois v. Perkins (1990) 496 U.S. 292.
34
30 pages of what was said. So we know that it was edited. The
question would be: What did they take out? That’s the question.
“You also know that it wasn’t the whole truth of what was
said. It wasn’t the whole truth.”
The trial court sustained the prosecutor’s objection.
Defense counsel then stated, “You didn’t get a chance to hear
when he was making a denial of doing the robbery.” The trial
court sustained the prosecutor’s objection again. At the bench,
the trial court told defense counsel, “You could have played the
entire tape.” It added: “The argument you’re making is that
somehow this was underhanded, and that’s just false. It was a
choice of what to play. Either side could choose what to play. He
chose what he wanted, and you could choose what you
wanted. . . . [¶] . . . [¶] You could have played it all.”
Thereafter, the trial court stated: “[T]he thing you’re arguing is
that somehow there’s something on the tape that is not in
evidence; there’s something in the tape that is somehow the truth
or the truth was not brought out, so you’re arguing evidence not
in this case. That is the problem with that.”
Defense counsel asserted that just before the sidebar
conference, he was referring in closing argument to the editing of
the police interview of defendant. He implied that he was not
referring to the editing of the informant’s conversation with
defendant. Defense counsel noted that defendant’s denial to the
police did not appear in the partial transcript or partial audio
recording of the police interview that the prosecution presented.
The trial court told defense counsel that he could argue that point
to the jury, but stressed that his closing argument had been
“more than that.”
35
Defendant complains that this was judicial bias. He is
incorrect. It is important to understand the context of this
sidebar conference. Detective Fitzsimmons testified on cross-
examination that the jury received only part of the transcript of
his interview with defendant, and only part of the audio
recording of that interview. When defense counsel asked
Detective Fitzsimmons whether they were “edited,” the trial
court stated, “There were portions of it played, and it was okay
with the court that only portions were played. It was not edited
in any way. Just portions were played.”
Detective Fitzsimmons agreed that when defendant spoke
with him, defendant denied committing the robberies. But
Detective Fitzsimmons could not find defendant’s denials in the
transcript that defense counsel showed him. This was not a
sudden revelation during cross-examination of Detective
Fitzsimmons. Even before Detective Fitzsimmons testified, any
reasonable juror would have understood it. The prosecutor had
already introduced defendant’s conversation with the informant.
And defendant told the informant that he falsely denied to the
police that he appeared in the photos from the surveillance videos
of the robberies. Also, even before trial, defense counsel knew
very well that defendant denied to the police during his
audiotaped interview with them that he participated in the
robberies. The prosecutor filed a pretrial brief about this,
attaching the relevant part of that interview transcript. And the
parties discussed this with the court, before voir dire was
complete. Thus, the editing of the police interview transcript was
no surprise to defense counsel.
Nor was it material that the jury only saw part of the police
interview transcript, or heard only part of that interview. The
36
jury knew about defendant’s denial to the police. And in the last
excerpt from closing argument quoted above, defense counsel
oscillated between discussing the transcript of defendant’s
conversation with the informant, and discussing the transcript of
defendant’s interview with the police. Under these
circumstances, the trial court was justly concerned that defense
counsel was falsely suggesting to the jury that the prosecution
had acted dishonestly.
5. Defense counsel inaccurately told the jury that the
prosecution never disclosed certain cellphone records to him when
the prosecution obtained those records during the trial and
delayed disclosure to him for two days
When a prosecutor obtains new evidence during trial, he or
she is obligated to give it to the defendant immediately. (§ 1054.7
[“If the material and information becomes known to, or comes
into the possession of, a party within 30 days of trial, disclosure
shall be made immediately”].) If the prosecutor turns over that
evidence during trial on the same morning that he or she obtains
it, the prosecutor complies with this obligation. (People v.
Verdugo (2010) 50 Cal.4th 263, 287.)
Here, defense counsel received timely discovery that
defendant’s cellphone connected three times with a cellphone
tower near the Bright Plaza Pharmacy in Whittier,
approximately when the crimes at that pharmacy occurred.
However, during trial, the prosecution learned for the first time
about new evidence that defendant’s cellphone connected with
that tower 34 times. The prosecution delayed two days before it
disclosed this new evidence to defense counsel. After a contested
hearing on this issue, the trial court decided to instruct the jury
37
that the prosecution provided late discovery regarding the 34
cellphone connections to the tower.
During closing argument, defense counsel read out loud the
delayed discovery instruction. He stated that the instruction
referred to “[t]he call detail records for the 34 hits east of the
710 freeway from the phone taken from” defendant. He added
that the prosecution “failed to disclose those records as well,
until—well, I don’t think they ever disclosed those records
actually.” After the prosecution objected, the trial court stated,
“The jury is told to disregard the last comment. That is not
evidence in the case. And the defense counsel is admonished not
to do that. That’s not proper.” Defense counsel stated, “So I
think what they’re saying is that they disclosed these records
in—I just want to make sure I get this right.”
At sidebar, the trial court told defendant’s trial attorney,
“You’re being outrageous. We said that the instruction was going
to be it, and it was not going to be any dates, and it wasn’t going
to be any time; that instruction embodies all that can be said to
the jury. And again you’re arguing evidence that is not in the
record.” “In addition, . . . you’re testifying again as a witness.”
The trial court also told defense counsel that he “tend[s] to go
over the line. I’m really losing some faith in you . . . that you’re
going to argue legitimately.”
Defense counsel complained that the trial court
admonished him in front of the jury. Specifically, he said, “It
hurts me and the defense.” The trial court replied, “Then I’ll
forget about doing any more, but just argue what is in the case?”
Defense counsel stated, “Okay. I’m sorry. Thanks.”
After closing arguments, the trial court instructed the jury
with CALJIC No. 2.28, which provides, in relevant part: “The
38
prosecution and the defense are required to disclose to each other
before trial the evidence each intends to present at trial so as to
promote the ascertainment of the truth, save court time and
avoid any surprise which may arise during the course of the trial.
Delay in the disclosure of evidence may deny a party a sufficient
opportunity to subpoena necessary witnesses or produce evidence
which may exist to rebut the non-complying party’s evidence. [¶]
Disclosures of evidence are required to be made at least 30 days
in advance of trial. Any new evidence discovered within 30 days
of trial must be disclosed immediately. In this case, the People
failed to timely disclose the following evidence: [¶] . . . [¶]
2. The call detail records for the 34 hits east of the 710 freeway
from the phone taken from [defendant] on 12/28/17. [¶]
Although the People’s failure to timely disclose evidence was
without lawful justification, the Court has, under the law,
permitted the production of this evidence during the trial. [¶] If
you find that the delayed disclosure was by the prosecution, and
relates to a fact of importance rather than something trivial, and
does not relate to subject matter already established by other
credible evidence, you may consider that delayed disclosure in
determining the believability or weight to be given to that
particular evidence.”
Contrary to defendant’s contention, the trial court was not
biased against defense counsel and did not commit misconduct.
Defense counsel was simply wrong when he told the jury in
closing argument, “I don’t think they ever disclosed those records
actually.” As set forth above, the prosecution simply delayed
disclosure for two days.
Significantly, the trial court gave defendant the
appropriate remedy by tailoring the jury instruction, which
39
defense counsel knew about before closing argument. Because
the trial court properly corrected defense counsel’s error, it did
not err. (See Nieves, supra, 11 Cal.5th at p. 477.)
6. Defense counsel improperly implied in closing
argument that the jury should not consider an exhibit that was
properly admitted outside the jury’s presence
When the prosecution first tried to obtain the relevant
cellphone records, defendant’s cellphone carrier, T-Mobile,
responded in writing that there were no records. This was
Exhibit No. 28. Later in the investigation, the prosecution
obtained the T-Mobile records by executing a search warrant and
a replacement affidavit certifying that the prior declaration had
been submitted in error. The cellphone records, which showed
that defendant’s cellphone was in the area of the two crime
scenes at the times of the crimes, were presented to the jury in a
PowerPoint presentation during the testimony of Romy Haas, a
crime analyst with the Sheriff’s Department. But the prosecution
did not ask to have these T-Mobile records admitted into evidence
before the close of its case.
Out of the jury’s presence but with defense counsel present,
the trial court denied defendant’s section 1118.112 motion. The
trial court then allowed the prosecution to reopen its case to
substitute the original T-Mobile declaration (Exh. No. 28) with
12 Section 1118.1 provides, in relevant part: “In a case tried
before a jury, the court on motion of the defendant . . . , at the
close of the evidence on either side and before the case is
submitted to the jury for decision, shall order the entry of a
judgment of acquittal of one or more of the offenses charged . . . if
the evidence then before the court is insufficient to sustain a
conviction.”
40
the new corrected one, along with the cellphone records
(Exh. No. 46). Although Exhibit No. 46 was a substitute for
Exhibit No. 28, both exhibits were admitted into evidence.
In closing argument, defense counsel stated: “So when you
look over at People’s 28, and I would ask you to look at this in the
jury room, do you see in the middle where it says, ‘No records
provided. T-Mobile does not store or maintain documents or
tangible things which match the description of records
[sought] . . . .’
“This is a problem . . . . No document was ever shown to
you in this Court from a witness that changed this in any way.”
The trial court interjected: “I’m going to tell the jury that there’s
a subsequent document that was admitted relating to this that
. . . relates exactly this . . . . It will also discuss the records
involved here. So I think that would be unfair to tell the jury
[what defense counsel said], knowing that the other document
exists, and they will get to see it, and it was admitted into
evidence.”
Defense counsel was undeterred. He continued: “There is
another document that’s submitted at the end of the trial, that
His Honor was talking about, but what we heard in this case,
what we saw in this case from—with our eyes and our ears, was
this document, People’s 28.”
Later, outside the jury’s presence, the trial court told
defense counsel: “I don’t think you’re being honest, and I think
it’s very disingenuous to make this argument, it’s a misleading
argument to say that the jury should not consider the document
that is 4[6]. It was admitted into evidence. It’s evidence in this
case . . . . [Y]ou don’t need any testimony for that document. It’s
a self-authenticating document. . . . Honestly, I don’t want to get
41
involved at the moment, but I am pointing that out. Because you
basically told the jury, ‘Don’t look at 4[6]. Don’t consider it,’ even
though it’s admitted into evidence in this case, and it is clearly
absolute evidence. I don’t like the argument. I’m making that
clear. And I believe that the prosecutor can respond to that
argument in a manner that deals with the misleading quality of
the argument.”
Defense counsel responded, “I’m sorry, Your Honor, that
you felt that way.” The trial court stated, “I’ve explained why.
You seem to suggest that they shouldn’t consider something that
was admitted into evidence. And . . . you never mention the
second document.” Defense counsel replied that he was about to
do that before the court interrupted his closing argument. The
trial court disagreed. When the jury returned, defense counsel
continued with his closing argument and acknowledged Exhibit
No. 46.
After the prosecutor’s rebuttal argument, the trial court
told the jury that Exhibit No. 46 was admitted outside the jury’s
presence, and the jury could consider it.
Contrary to defendant’s suggestion, the trial court did not
commit misconduct and was not biased. When an attorney
makes an improper closing argument, the court has a duty to
intervene. (See Nieves, supra, 11 Cal.5th at p. 477.) That is
exactly what happened here. Defense counsel falsely implied
that the jury should put great weight on Exhibit No. 28 because
it was the only cellphone records that the jury had seen. Even
after the trial court pointed out that his argument was unfair,
defense counsel went right back to his misleading argument. It
was wrong for defense counsel to argue that because the jury was
present when the trial court admitted Exhibit No. 28, it was more
42
reliable evidence. Although defense counsel told the trial court
that he was about to explain Exhibit No. 46 to the jury, the trial
court had the discretion to determine, as it seemingly did, that
this assertion was not credible.
7. Defense counsel made a mistake about exactly
what the trial court judicially noticed, and the court’s response
was not misconduct or evidence of bias
Near the beginning of the prosecution’s case, the trial court
granted the People’s request for judicial notice that defendant
and one codefendant were present at the preliminary hearing on
April 10, 2019. During closing argument, defense counsel
asserted that the trial court took judicial notice that defendant
was in court when Valdez testified on October 10, 2019. The trial
court interjected that it did not do that, it did not know who was
there, and “[t]he evidence is whatever it is regarding that.”
Later, outside the jury’s presence, the trial court stated
that it could not find its notes about whether it took judicial
notice that defendant was present in court on a prior date. It
believed that it took judicial notice that three defendants were
present. Defense counsel replied that only two were present.
The trial court then stated: “I want to get it right, and if it’s
somewhere, during the lunch hour you can show me where I took
judicial notice, then I will tell it specifically to the jury.” Defense
counsel did not follow up on that suggestion.
Despite defendant’s assertion, this was not evidence of
judicial bias or misconduct. Defense counsel misstated the point
that the trial court judicially noticed; there is no evidence that
the trial court took judicial notice that defendant was present in
a courtroom on October 10, 2019. Despite the trial court’s
43
invitation to show proof of that judicial notice, defense counsel
failed to do so.
8. The trial court did not commit misconduct or
display bias when it corrected its legal error, told the jury that it
mistakenly admonished defense counsel, and noted that he had
objected on a proper ground
During the prosecutor’s rebuttal argument, defense counsel
objected on the ground of prosecutorial misconduct. On one
occasion, the trial court overruled the objection but told the jury
that the prosecutor’s argument was “not appropriate” and should
be disregarded. On another occasion, the trial court admonished
defense counsel in front of the jury that this was an improper
objection. The trial court said that it told him about seven times
not to make speaking objections. After the parties discussed this
issue with the trial court outside the jury’s presence, the trial
court recognized that prosecutorial misconduct was a proper
ground for an objection.
Shortly thereafter, the trial court corrected its mistake at
the outset of the jury instructions, stating: “The Court wants to
indicate that it made a mistake; it was wrong when I admonished
[defense counsel] for saying ‘prosecutorial misconduct.’ It was my
understanding that that is not a proper, evidentiary objection. I
thought the objection should be, like, ‘improper argument,’
instead of prosecutorial misconduct, but I checked during the
break. He is correct. That is a proper objection, and so that
would not be a speaking objection. That would be a proper
objection. And so I let [defense counsel] know that, and I’m
letting you know, that that was a proper objection, the
‘prosecutorial misconduct’ language, which I thought was not.”
44
This was not judicial bias or misconduct. Defense counsel
was vindicated on this point in front of the jury. No reasonable
juror would have held it against him. He stood up for himself
and got the court to admit its honest mistake.
C. Any alleged error was harmless
“We consider the cumulative effect of the trial judge’s
[alleged] misconduct in order to assess prejudice that may arise
from a variety of factors.” (Nieves, supra, 11 Cal.5th at p. 499.)
As our Supreme Court has observed, “the timing of a judge’s
improper remarks may increase their potential for prejudice,
such as comments made during counsel’s closing argument
[citation] and comments that interfere with the defense
presentation of evidence [citation]. The frequency of improper
comments is another consideration.” (Nieves, supra, at pp. 499–
500.)
Any alleged judicial misconduct was harmless here. The
trial court told defense counsel that he was “a very good lawyer.”
And it did not treat the prosecutors any better than it treated
defense counsel. In fact, the trial court admonished or corrected
the prosecutors in front of the jury, sometimes curtly.13
Therefore, the jury could not have inferred that the court
preferred the prosecutors.
Furthermore, the alleged judicial misconduct did not affect
the outcome. In front of the jury, the trial court announced that
it was wrong when it admonished defense counsel during the
prosecutor’s closing argument, and that defense counsel was
13 Outside the jury’s presence, the trial court repeatedly
spoke abruptly to the prosecutors, expressed impatience with
them, and criticized their arguments.
45
right. And, as set forth above, there was compelling evidence of
defendant’s guilt. (Nieves, supra, 11 Cal.5th at p. 502 [“we are
not persuaded ‘“that the verdict resulted from the conduct of the
judge and not from the evidence”’”].)
VI. Alleged Error in Refusing to Strike any of Defendant’s Prior
Strikes
Defendant contends that the trial court abused its
discretion by declining to strike one of his prior “strike”
convictions.
A. Defendant’s record
Defendant was 41 years old when he committed the current
crimes in October 2017.
In 1992, juvenile petitions were sustained against him for
petty theft and vehicle theft. In 1994, a juvenile petition was
sustained against him for burglary. In 1995, when defendant
was an adult, he was convicted of misdemeanor burglary. He was
sentenced to jail for 30 days and placed on probation. In 1996,
defendant was convicted of misdemeanor grand theft,
misdemeanor vehicle theft, and misdemeanor evading a police
officer, causing injury. He was sentenced to one year in jail and
placed on probation. Later that year, he violated probation and
was sentenced to prison for two years. In 1997, he was convicted
of misdemeanor driving under the influence of alcohol and was
sentenced to jail for six months. Later that year, he was
convicted of felony second degree burglary and sentenced to
prison for one year four months.
In 1999, defendant was convicted of first degree burglary.
He was sentenced to jail for 29 days and placed on probation for
five years. In 2000, defendant was convicted of selling or
furnishing marijuana or hashish. He was sentenced to jail for
46
one year and placed on probation for three years. In 2002, he was
convicted of felony burglary and sentenced to prison for two
years. Also, his probation from 2000 was revoked and he was
sentenced to prison for three years in that case. In 2005,
defendant was convicted of possession for sale of oxycodone,
hydromorphone, and hydrocodone. He was sentenced to
confinement for five years and placed on supervised release for
three years.
In 2012, defendant was convicted of two counts of felony
burglary. He was sentenced to prison for four years. In 2016, he
was convicted of possession of a weapon by a prisoner. He was
sentenced to prison for two years eight months. When defendant
was released from prison, he failed to submit to testing for
narcotics and enroll in a substance abuse program. According to
the consolidated criminal history reporting system, he was
classified as mentally disturbed.
B. Probation officer’s comments
The probation officer stated that defendant continued his
pattern of criminal conduct that began when he was a juvenile.
In the current crimes, he showed a lack of regard for other people
and their property. His actions were callous, deliberate, and
premeditated. The probation officer said that defendant needed
to be held accountable. She noted that it was not clear why he
committed these crimes. She suggested that he might have some
anger, theft, and mental health problems that need to be
addressed. The probation officer found that defendant is a
danger to the community. She could not interview the victims,
but she concluded that they apparently feared for their lives and
safety. She noted that the victims were fortunate to avoid serious
injury. Defendant had been on probation before and in prison
47
multiple times. But he continued to commit crimes. The
probation officer concluded that defendant should be sentenced to
prison again.
The probation officer found seven aggravating factors. The
manner of the crimes suggests that they were carried out with
planning, sophistication, or professionalism. The crimes involved
the taking of property of great monetary value. The crimes
involved great violence, great bodily harm, or other acts showing
a high degree of cruelty, viciousness, or callousness. Defendant
engaged in violent conduct that shows he is a serious danger to
society. His prior convictions and sustained juvenile petitions are
numerous or increasingly serious. He performed unsatisfactorily
on prior probation and parole. And he was on postrelease
community supervision when he committed the crimes.14 The
probation officer found no mitigating factors.
C. The trial court’s ruling
Defendant filed a written motion and several replies to the
People’s opposition under People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 (Romero).
After entertaining oral argument, the trial court denied
defendant’s Romero motion. It stated that it would “do the
Romero motion by the book” and would “start out by saying” that
the current crimes were “not the biggest thing in this whole
discussion.” According to defendant’s statement to the police, he
was “all in on the robbery,” planned a different robbery, and
14 An eighth aggravating factor was listed in the probation
report (defendant was armed with a weapon or used one), but the
trial court found in another context that that was not true.
48
“according to what I read,” provided the gun for that robbery.15
“On the other hand, [defendant] does deserve some credit for
helping solve [a] murder, even if he was mostly motivated by the
self[-]interest of trying to reduce his case. He helped out. He did
mouth some of the correct words; he said he was concerned about
the closure for the family of the victim and so forth.” Therefore,
“[i]t’s a very mixed bag. It’s certainly not something that would
really save the day for” defendant.
Citing People v. Williams (1998) 17 Cal.4th 148, the trial
court acknowledged that it was required to consider defendant’s
personal circumstances and history, as well as his rights and the
rights of society. Defendant’s two prior “strike” convictions were
for first degree burglary in 1999 and 2002. But the court
explained that it must deduct the time he spent in prison to
determine the remoteness of those prior convictions. It added
that there was no suggestion that defendant used weapons or
violence during those prior burglaries or that anyone else was
present during them.
The trial court found that defendant “has a terrible past
criminal record.” It was “just awful.” It stressed that defendant
“was consistently in prison or jail between the strikes and the
present offense[s]. He’s racked up four additional felonies and
misdemeanors.” He spent 15 and a half years in prison between
1999 to 2017. There were less than three consecutive years in
which defendant was free from custody and did not commit a
crime. Thus, the trial court concluded that defendant’s prior
15 Defendant made a statement to the police regarding a
different robbery that resulted in a murder by an accomplice.
Defendant was not prosecuted for that crime.
49
“strike” convictions were not remote. When he committed the
current crimes, he was on both federal and state probation. “At
least two of [his] prior felonies involved weapons of violence,”
including “evading police officer causing injury or death.” And all
four current convictions were “strikes.”
The trial court explained: “I somehow worked it out that he
spent about 90 percent of his life incarcerated, either in the
juvenile system or adult corrections. I don’t know how I did that
but I must have done a mathematical formula.” It noted that a
defendant could be considered a career criminal for purposes of
the “Three Strikes” law even if his prior convictions were not
principally violent or serious, and defendant has “quite a number
of” prior burglary convictions that were not serious or violent.
Although defendant suggested “that he has a drug problem
. . . the court did not really find evidence of this in his criminal
history.” The trial court elucidated: “I’m not saying he doesn’t. I
don’t have any actual knowledge whether he does. But he only
had drug offenses in 2000 and 2005, and both of those involved
selling drugs.”
Furthermore, the trial court found that the current offenses
involved planning and sophistication, based on the way they were
committed, including the use of a wheelchair. It also found that
they “involve violence and the threat of great bodily harm, while
other acts disclose a high degree of cruelty, viciousness, or
callousness.” The trial court continued: “I’m not saying that
[defendant] exactly did that, but he has to take [responsibility] as
an aider and abettor for what anybody else does.” And the court
found that his prior convictions were increasingly serious.
There was one mitigating factor. Defendant helped the
police solve a murder. The trial court expressly gave him credit
50
for that. But based on defendant’s criminal record and his new
“strike” convictions, the trial court declined to strike any of his
prior “strike” convictions.
D. Relevant law
“‘[T]he Three Strikes initiative, as well as the legislative act
embodying its terms, was intended to restrict courts’ discretion in
sentencing repeat offenders.’ [Citation.] To achieve this end, ‘the
Three Strikes law does not offer a discretionary sentencing
choice, as do other sentencing laws, but establishes a sentencing
requirement to be applied in every case where the defendant has
at least one qualifying strike, unless the sentencing court
“conclude[s] that an exception to the scheme should be made
because, for articulable reasons which can withstand scrutiny for
abuse, this defendant should be treated as though he actually fell
outside the Three Strikes scheme.”’ [Citation.]” (People v.
Carmony (2004) 33 Cal.4th 367, 377.) “‘[I]n ruling whether to
strike or vacate a prior serious and/or violent conviction
allegation or finding under the Three Strikes law, . . . or in
reviewing such a ruling, the court in question must consider
whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and
the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or
in part, and hence should be treated as though he had not
previously been convicted of one or more serious and/or violent
felonies.’ [Citation.]” (People v. Carmony, at p. 377.)
We “review a trial court’s ruling on a Romero motion under
the deferential abuse of discretion standard, which requires the
defendant to show that the sentencing decision was irrational or
arbitrary. [Citation.]” (People v. Avila (2020) 57 Cal.App.5th
511134, 1140.) “Only extraordinary circumstances justify finding
that a career criminal is outside the Three Strikes law.” (People
v. Avila, supra, at p. 1140.)
E. Analysis
Applying these legal principles, we readily conclude that
this was not an extraordinary case that falls outside the ambit of
the Three Strikes law. Defendant had a “terrible” and “awful”
criminal record. He “was consistently in prison or jail between
the strikes and the present offense[s].” In fact, he was in prison
for 15 and a half years between 1999 to 2017. There were less
than three consecutive years in which he was free from custody
and did not commit a crime. Thus, the trial court did not abuse
its discretion in finding that the prior “strike” convictions were
not remote.
Furthermore, as the trial court found, “[a]t least two of
[defendant’s] prior felonies involved weapons of violence,”
including “evading police officer causing injury or death.”
Although defendant did not personally use a weapon during the
current crimes, he participated in those crimes, which involved
acts of violence. And, he caused psychological trauma to the
victims.
Notably, defendant was not under 21 years of age when he
committed the prior “strike” convictions; nor was there proof that
his criminal record was influenced by a drug addiction. (Contra,
People v. Avila, supra, 57 Cal.App.5th at pp. 1141–1142, 1144–
1145; People v. Dryden (2021) 60 Cal.App.5th 1007, 1031.)
Urging us to reverse, defendant insists that there was only
flimsy evidence that he provided the gun during the uncharged
robbery that resulted in a murder by an accomplice. Defendant
52
suggests that the trial court relied on the statement of the
shooter to conclude that defendant supplied that gun.
But the trial court did not say that. Rather, it stated,
“according to what I read,” defendant provided the gun for that
robbery. This appellate record does not contain the evidence of
the uncharged robbery, including defendant’s statement to the
police about it. Thus, it is not fair to conclude that trial court’s
comments were based on flimsy evidence.
More importantly, and contrary to defendant’s argument,
as evinced by the full context of the trial court’s remarks, the
trial court did not place substantial weight on the uncharged
robbery. Thus, it did not abuse its discretion.
VII. No Cumulative Error
Finally, defendant contends that the cumulative effect of
the alleged errors was prejudicial.
“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 defendant in their absence.’
[Citation.] When the cumulative effect of errors deprives the
defendant of a fair trial and due process, reversal is required.”
(People v. Williams (2009) 170 Cal.App.4th 587, 646.)
As set forth above, no errors occurred. And, even if there
were, they were harmless. They did not combine to render this
trial unfair. (People v. Cunningham, supra, 25 Cal.4th at p. 1009
[defendants are entitled to a fair trial, not a perfect one].)
53
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ
54