People v. Nichols CA5 ( 2023 )

Filed 12/14/23 P. v. Nichols CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F083958
Plaintiff and Respondent,
(Super. Ct. No. BF182068A)
v.
ERIC LAVELLE NICHOLS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Sandra Gillies, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A.
Martinez and Joseph Penney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
On August 24, 2021, a jury convicted defendant Eric Lavelle Nichols of the first
degree murders of Paul Dean and Jerome Davis (Pen. Code, §§ 187, subd. (a), 189,
counts 1 & 2),1 and found true all enhancements and allegations.2 Subsequently,
defendant was sentenced to two indeterminate terms of life without the possibility of
parole, plus 25 years to life. Further, defendant was sentenced to a total aggregate
determinate term of 53 years 8 months.
On appeal, defendant makes several claims of alleged errors by the trial court.
Specifically, defendant contends the trial court erred when it: (1) denied trial counsel’s
two Batson/Wheeler3 motions; (2) improperly admitted ShotSpotter evidence under
Kelly,4 and the expert (Paul Greene) lacked the necessary qualifications to testify
regarding the ShotSpotter technology; (3) failed to hold a Marsden5 hearing and protect
his Sixth Amendment right to effective counsel; (4) failed to inquire as to the reasons
behind several jurors laughing during his cross-examination, which violated his rights to
a fair trial under the Sixth and Fourteenth Amendments to the federal Constitution; and
(5) improperly allowed the prosecutor to impeach him with portions of his self-published
book, Loc Tales: The True Story of a California Gangsta.
We conclude, that as to each individual claim, the trial court did not err.
Accordingly, we affirm the judgment.
1 All further references are to the Penal Code, unless otherwise stated.
2 As we discuss further below, defendant was also convicted and sentenced to
additional offenses and enhancements.
3 Batson v. Kentucky (1986) 476 U.S. 79 (Batson); People v. Wheeler (1978)
22 Cal.3d 258 (Wheeler).
4 “Formerly known as the Kelly-Frye rule, based on the rulings of People v. Kelly
(1976) 17 Cal.3d 24 (Kelly) and Frye v. U.S. (D.C. Cir. 1923) 293 F. 1013 [(Frye)], the
rule is now the Kelly rule in California after changes to the Federal Rules of Evidence
that superseded Frye.” (People v. Nieves (2021) 11 Cal.5th 404, 442, fn. 8 (Nieves),
citing to People v. Bolden (2002) 29 Cal.4th 515, 545.) Although both parties
characterize this argument as arising under Kelly/Frye, we will refer to this as the Kelly
rule.
5 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
2.
STATEMENT OF CASE
On May 6, 2021, the Kern County District Attorney filed a first amended
information charging defendant with two counts of premeditated first degree murder
(§§ 187, subd. (a), 189, count 1 (Paul) & count 2 (Jerome)), with the multiple murder
special circumstance (§ 190.2, subd. (a)(3)) and the enhancement he personally and
intentionally discharged a firearm which proximately caused great bodily injury or death
(§ 12022.53, subd. (d)); carjacking (§ 215, subd. (a), count 3), with the enhancement he
personally used a firearm during the commission of the offense (§ 12022.53, subd. (b));
robbery (§ 212.5, subd. (c), count 4), with the enhancement he personally used a firearm
during the commission of the offense (§ 12022.53. subd. (b)); carjacking (§ 215,
subd. (a), count 5); felon in possession of a firearm (§ 29800, subd. (a)(1), count 6); and
robbery (§ 212.5, subd. (c), count 7), with the enhancement he personally used a firearm
during the commission of the offense (§ 12022.53, subd. (b)).6 As to all offenses, the
information alleged a prior strike offense for assault with a firearm (§§ 667, subds. (b)-
(i), 1170.12, subds. (a)-(d), 245, subd. (a)(2)) and a prior serious felony offense (§ 667,
subd. (a)).
On August 24, 2021, a jury convicted defendant on all counts and found true all
enhancements and allegations. As to the alleged prior strike and serious felony offense,
the trial court in a bifurcated trial found true that defendant suffered a prior conviction for
a violation of section 245, subdivision (a)(2), as alleged in the information.
Subsequently, the trial court sentenced defendant as follows:
● As to count 1, an indeterminate term of life without the possibility of
parole, plus consecutive terms of 25 years to life for the firearm enhancement
(§ 12022.53, subd. (d)), and five years for the prior serious felony offense (§ 667,
subd. (a)).
6 Prior to the jury trial, the People dismissed count 5 (§ 215, subd. (a)) in the
furtherance of justice.
3.
● As to count 2, the trial court sentenced defendant to an indeterminate term
of life without the possibility of parole, plus consecutive terms of 25 years to life for the
firearm enhancement (§ 12022.53, subd. (d)), and five years for the prior serious felony
offense (§ 667, subd. (a)), to be served consecutive to count 1.
● As to count 3, the trial court sentenced defendant to the upper term of nine
years, doubled to 18 years because of the prior strike, plus consecutive terms of 10 years
for the firearm enhancement (§ 12022.53, subd. (b)), and five years for the prior serious
felony offense (§ 667, subd. (a)), to run consecutive to count 2.
● As to count 4, the trial court sentenced defendant to a term of two years,
plus a consecutive term of three years four months, which is one-third the middle term of
10 years for the firearm enhancement (§ 12022.53, subd. (b)), to be served consecutive to
count 3.
● As to count 6, the trial court sentenced defendant to the upper term of three
years, doubled to six years because of the prior strike, but stayed the sentence pursuant to
section 654.
● As to count 7, the trial court sentenced defendant to a term of two years,
plus a consecutive term of three years four months, which is one-third the middle term of
10 years for the firearm enhancement (§ 12022.53, subd. (b)), to be served consecutive to
count 4.
The total aggregate indeterminate terms imposed are life without the possibility of
parole, plus 25 years to life, and life without the possibility of parole, plus 25 years to
life. The total aggregate determinate term imposed is 53 years 8 months.
SUMMARY OF FACTS
I. The August 2, 2020 Robbery (Count 7)
On August 2, 2020, Carolina R. worked at a furniture and appliance store in
Bakersfield when defendant walked by the store. Defendant stopped at the front of the
store, looked inside, and said, “ ‘Oh, is this some sort of auction house?’ ” Carolina told
4.
him no and defendant walked away. Approximately 20 seconds later, defendant returned
and “ha[d] a mask[7] on and he ha[d] something in his hand,” which Carolina later
determined to be a jug of gasoline.8 Carolina responded, “Is that a gallon of something?”
and defendant told her twice, “ ‘This is gasoline. I’m going to pour it over you and I’m
going to set you on fire if you don’t do what I say. Give me the money.’ ” Carolina tried
to stay calm and stated, “Okay, I’ll show you where the money is. You can have the
money. It’s fine.”
Carolina went to the back office and attempted to grab the money when defendant
“grab[bed] [her] arm with one hand and he start[ed] pouring the liquid … gasoline.”
Defendant then “end[ed] up dropping the whole gallon on the floor and then he pull[ed]
out a [black] gun,” pointed the gun at Carolina’s head and said, “ ‘Give me the money.’ ”
Carolina handed over between $300 to $800 to defendant and he stuffed the money in his
pocket. Defendant then “point[ed] the gun now to the front of [Carolina’s] face and he
sa[id], ‘Close your eyes.’ ” At this point, defendant left the store. Carolina testified this
incident “was easily the scariest thing that’s ever happened to [her].”
II. The Events of August 4, 2020
In the morning of August 4, 2020, defendant and his girlfriend, Valerie A., drove
over to Paul’s home to pick up a black handgun with black tape on its grip. Valerie was
familiar with the handgun and had “seen the gun plenty of times before so [she] kn[e]w
it.” Defendant grabbed the handgun from Paul and placed the gun in his waistband.
Valerie then went to work at noon after spending the morning with defendant.
7 Carolina described the mask as “one of the masks from [the movie] The Purge,
where it’s pretty much like a very eer[ie] smiled face, like, that curves all the way
upwards.”
8 Criminalist Jeehak Kim testified he analyzed the DNA from the jug and
concluded, “the two profiles [one of which was defendant] were a match” and “the
random match probability was one in 7.8 nonillion.”
5.
A. The Carjacking (Counts 3 & 4)
On that same day, at or around 7:00 p.m., Henderson P. drove his gray 2010
Dodge Grand Caravan with a North Dakota license plate to a gas station in Bakersfield.
While at the gas station, defendant approached Henderson with a large gray storage bin
and repeatedly asked him for a ride.9 Henderson eventually agreed to give defendant a
ride and defendant proceeded to sit in the front passenger seat. During the drive,
defendant talked with a female on the phone and Henderson heard her refer to defendant
as “Big E.” Defendant then changed into a “jersey-type shirt” and “put some kind of
chain or something, medallion or something, around his neck.”
Later on, Henderson drove to a cul-de-sac and stopped the vehicle. Henderson
“exit[ed] the van, went around to the passenger’s side, took out [defendant’s] [bin], and
set it down on the ground and closed the van door and went back around to [the driver’s]
side to get in to take off.” Defendant then “opened the side of the van door and put his
stuff back in.” Henderson asked defendant, “What are you doing?” and defendant then
put a black handgun to Henderson’s head and told him, “ ‘Back away from the van. I
don’t wanna have to scatter your brain.’ ” Henderson replied, “Man, you don’t know
what you’re doing” and defendant responded, “ ‘I don’t wanna have to kill you. Back
away from the van.’ ” Defendant said, “ ‘Empty your pockets’ ” and he then grabbed
Henderson’s money and cell phone and drove away. Henderson testified he did not give
defendant permission to use the van and that the whole incident left him “terrified.”
Subsequently, Henderson ran over to an individual, Adam M., who was packing
boxes inside his garage. Henderson “seemed scared … [and] came in saying someone
robbed his car, took a car, and he need[ed] to call—and he wanted [Adam] to call the
cops.” Specifically, Adam testified that Henderson told him “[h]e had taken his car, like
pulled a gun on him and took his car, forced him out of his own car.” Henderson
9 Henderson testified defendant was wearing a Farmers Insurance Group shirt with
either “Eric L. Nichols or Eric Nichols” on the front. He also identified defendant in
court and testified he had never seen him before this incident.
6.
described the car to Adam as a “van.” Henderson used Adam’s phone to call 911 and
eventually law enforcement arrived on scene. Adam then observed an African-American
male drive a van by his house.
B. The Murders (Counts 1, 2 & 6)
Later on that same evening, defendant picked Paul up in the van and drove over to
a motel. While at the motel, defendant ran into Jerome and the three of them ended up
hanging out. At 10:39 p.m., Paul’s girlfriend, Lakeisha E., called Paul on the phone and
heard defendant “yelling something in the back” and he “sound[ed] hostile.”
At or around 10:45 p.m., the van stopped near the intersection of 10th Street and
M Street, near where James E. worked on his car. James observed an individual step out
of the van and walk slowly “and then there was another person behind them, and they
walked almost to the intersection.” Thereafter, “[t]he person who had had on like a white
T-shirt, a light-colored T-shirt, and his hand came up and [James] [saw] … [a] yellow
flash.” James heard a pop and “[t]he person in front fell down, and, like, his chest hit the
ground first, then his head, and then his legs came up behind his back.” The shooter then
“kicked the man with the foot, and then that was when he reached down and he started
patting the man down.” The man on the ground, who was later identified as Paul, was
shot in the head and died on scene.
The shooter then walked over to the right passenger’s side of the van and “fired
another shot.” James observed the muzzle flash and heard a pop from the second shot.
The shooter then got back into the van and drove off.10 James identified the shooter as a
black male with a “pot belly.” The victim, later identified as Jerome, was shot in the
forehead at close range and was subsequently transported to the hospital where he later
died.11
10 The van was captured by several surveillance cameras and was also observed by
an officer responding to the murder scene.
11 An autopsy was conducted on both Paul and Jerome. Forensic Pathologist E.
Carpenter testified the causes of death were gunshot wounds to the head.
7.
III. Defendant’s Conduct After the Murders
At or around 11:15 p.m., defendant returned to the motel and looked for a ride.
Subsequently, Audrey L. and Marquell H. picked up defendant and drove him to Brandon
W.’s house. Defendant and Brandon drove around to several ATMs to withdraw money,
but were unsuccessful.12
The next day, defendant returned to the motel wearing a straw hat and pushing a
walker. Defendant became involved in a fight and brandished a black handgun at the
occupants in room 14. A motel employee ended up telling defendant to leave.
Defendant then called Valerie to pick him up from the motel. Valerie picked up
defendant and he loaded a straw hat and walker into her car.13 Defendant then had her
drive around town looking for a lost wallet. During this time, Valerie observed defendant
with the same handgun he had before in his waistband.14 Subsequently, they parked the
car by an apartment complex in the Stockdale area. The next morning on August 6,
2020, defendant and Valerie rented a room at a Wasco motel.
IV. The Law Enforcement Investigation
On August 4, 2020, the Bakersfield Police Department received two ShotSpotter,
Incorporated (ShotSpotter)15 notifications that two gunshots had been fired near the 10th
Street and M Street intersection at 10:48 p.m. and 10:49 p.m. Officers responded to the
scene and en route Officer J. Otterness noticed a silver Dodge Caravan with a flat tire
leaving the area of the shootings. Officer Otterness believed the van may have been
struck by gunfire.
12 ATM security footage captured defendant wearing a grey jersey.
13 A straw hat and walker were later found inside Valerie’s car.
14 It was stipulated by both parties that defendant was a convicted felon and was
therefore prohibited from possessing a firearm.
15 As we discuss in further detail below, ShotSpotter “is an acoustic gunshot
detection and location system” that utilizes “a number of microphone sensors” that “listen
specifically for impulsive noises … specifically, the sounds of gunfire.”
8.
Officers arrived at the intersection and noticed two individuals, Paul and Jerome,
lying in the roadway. Both Paul and Jerome had gunshot wounds to their heads. Officers
searched the area and located blood in the area between Paul and Jerome’s body, and a
spent nine-millimeter bullet casing near Paul’s body. Officers then obtained surveillance
footage from several establishments and the silver van was seen traveling in the same
area as the murders. Officers located the van at the motel and seized it.
Later on, officers searched the van and noticed the front passenger tire was mostly
flat, and a substantial amount of blood16 and a spent nine-millimeter bullet casing were
inside the van. Defendant’s fingerprint was also found on the van’s driver’s side door.
Subsequently, law enforcement obtained a warrant for “pings”17 associated with
defendant’s cell phone. It was determined the cell phone pinged in the area of the Wasco
motel where defendant and Valerie were staying. Officers located defendant at the motel
where he was arrested and his cell phone was seized.18 Later on, defendant was
interviewed and denied being involved in the murders.19 However, defendant did admit
to having the nickname of “Big E-Loc” and told officers, “You don’t talk to me like that,
man, I’m Big E-Loc, man.”
Officers also contacted Valerie who directed officers to an apartment complex
where defendant had exited the car to relieve himself. Officers searched the area, noticed
a stone paver out of place, and located a black handgun20 with black tape on the handle
16 The blood was swabbed for DNA, and it was determined to be Jerome’s DNA to a
high probability.
17 A cell phone ping “giv[es] a real-time location within varying radiuses where that
cell phone is” located.
18 A video was found on defendant’s cell phone which showed defendant holding a
black handgun with a black taped handle.
19 Defendant also testified on direct examination he had no involvement in the
murders and that another shooter was responsible for the killings, however, he did
acknowledge being present with Paul and Jerome at the time of the murders.
20 DNA samples obtained from the handgun matched defendant’s DNA to a high
probability. Specifically, Criminalist J. Garza testified it is “[o]ne hundred and eighty
9.
underneath the paver. Valerie identified this firearm as the same firearm she observed
defendant with the day before. Valerie also testified defendant called her from jail and
pressured her to not come to court “[t]hree to four times.”
Criminalist A. Brown examined the two spent nine-millimeter bullet casings
obtained from the murder scene, along with the handgun collected from the apartment
complex. The bullet casings’ markings revealed they were fired from the seized
handgun.
Further, Kern County District Attorney Investigator evaluated the tower usage
data from defendant’s cell phone and determined the cell phone was in the area where
Henderson had called 911 after being carjacked. Defendant’s cell phone was also used at
the time and area where Paul and Jerome had been shot.
ARGUMENT
I. The Trial Court Did Not Err in Denying Trial Counsel’s Two Separate
Batson/Wheeler Motions
Defendant contends the trial court erred in denying trial counsel’s two
Batson/Wheeler motions because the prosecutor used her peremptory challenges in a
discriminatory manner by striking all the African-American woman from the jury. We
disagree.
A. Additional Factual Background
The trial court began the jury selection process on June 29, 2021, when it swore in
the first panel of prospective jurors. Because of the COVID-1921 pandemic, the trial
billion times more likely” to be defendant’s DNA than a random African-American
individual.
21 The formal name of the COVID-19 virus is the “severe acute respiratory syndrome
coronavirus 2 (SARS-CoV-2).” (World Health Organization, Naming the coronavirus
disease (COVID-19) and the virus that causes it,
<https://www.who.it/emergencies/diseases/novel-coronavirus-2019/technical-
guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it> [as
of December 11, 2023].) In this opinion, we will refer to the virus as COVID-19.
10.
court utilized questionnaires “to aid and assist … in the jury selection process” and it
received 108 questionnaires from prospective jurors.22 After the trial court’s hardship
and for cause excusals,23 along with juror nonappearances, 82 prospective jurors
remained. Of the 82 remaining prospective jurors, four were African-American females
(4.9 percent of the panel).24
After the prosecutor’s eighth peremptory challenge, trial counsel made a
Batson/Wheeler motion. Trial counsel alleged the prosecutor excused Juror No. 5660560
(Juror 5660560) and Juror No. 5733944 (Juror 5733944) based on race. Specifically, trial
counsel argued:
“This is a prosecution where the defendant’s black. All the major
players are black. And I would request that the Court inquire of counsel for
the prosecution the basis of the exclusion of those two women to make sure
that it was not done on racial lines alone.”
The trial court subsequently found “that the prima facie case ha[d] been shown by the
defense” and asked that the prosecutor “explain to the Court reasons why [she] excused
[Juror 5660560] and [Juror 5733944].” The prosecutor responded as follows:
“With respect to [Juror 5660560], I excused her given, essentially,
her employment and her previous employment.
“Her employment is a program specialist or case manager for
approximately a year and a half. While it is within the probation
department, which is technically a law enforcement agency, she has one-
on-one counseling with adult probationers and, essentially, is their, quote
unquote, life coach.
22 All juror information referenced in this opinion is based on these questionnaires
and jurors’ answers during voir dire.
23 Two of the excused jurors (Juror No. 5841524 (Juror 5841524) and Juror
No. 5882195 (Juror 5882195)) both identified themselves as African-American females.
Juror 5841524 was excused for hardship because she was in quarantine due to exposure
to COVID-19 and Juror 5882195 was excused for cause.
24 Juror No. 5765025, who also identified herself as an African-American female,
was never called to the panel.
11.
“She previously worked as a social worker for eight and a half years,
and in my experience of doing this for approximately 13 years, I tend to
believe social workers and counselors, especially those that work with
convicted criminals, tend to be more sympathetic towards criminal
defendants.
“She also included that at times the criminal justice system is not
fair.
“But my main reason for kicking her was the employment.
“I would add for the record, I did kick [Juror No. 5789003 (Juror
5789003)], who while she’s not a social worker or life coach, she does have
regular contact with inmates at, I believe she said, Wasco State Prison, and
so that is another reason under the comparative analysis that I used a
challenge. [¶] … [¶]
“… As to [Juror 5733944], the main reason I kicked [Juror
5733944] is her age. She’s only 22 years old.
“Again, for the record, I did believe she was Hispanic. That’s what
is circled. But African-American is also circled on her questionnaire.
“Her youth and inexperience is something that I take heavily into
account, and she has only been working for approximately—she wrote zero
years at occupation on the questionnaire, but I recall it was either one
month or three months during her questioning by me. I don’t attribute that
to anything of significance to yield her significant life experience that other
jurors possess to sit on a homicide case.
“I also considered the fact that she wanted to start a podcast, a crime
podcast, she mentioned, I think, with one of her friends, and typically, in
my experience, anyone in the news-reporting-type business is more liberal
rather than conservative in sort of questioning what police did, the
thoroughness of police work, things of that nature, things that could be
done to help. And so I think it’s asking too many questions.
“For comparative analysis, I did also kick [Juror No. 5850745 (Juror
5850745)], who is involved in the news industry as well—he was a white
male—for those same reasons.”
The trial court subsequently denied trial counsel’s Batson/Wheeler motion. Specifically,
the trial court stated the following:
12.
“In considering the reasons for kicking specifically [Juror 5660560]
and [Juror 5733944], the Court at this time finds that the reasons given for
challenging those two individuals are group neutral. Specifically, appellate
courts have recognized a valid reason in excusing individuals for
employment stereotypes, as well as youth reasons or prospective jurors
being young.
“The Court has appreciated the comparative analysis conducted by
[the prosecutor] in explaining that those reasons have been relied on by her
to release individuals other than or in addition to the two prospective jurors
that have been challenged.
“From the totality of the circumstances, I find that the moving party
has failed to establish, by a preponderance of evidence, that the proffered
explanations are genuine and not a sham, and on that basis, I will find that
group bias has not been proved.”
Later on, after the prosecutor’s 12th peremptory challenge, trial counsel made a
second Batson/Wheeler motion. Trial counsel alleged the prosecutor excused Juror No.
5747794 (Juror 5747794) based on race. Specifically, trial counsel stated the following:
“Counsel’s last challenge of the latest juror, number four, [Juror
5747794] was African-American.
“When this issue came up a few minutes ago, [the prosecutor] had
dismissed two out of the three African-American jurors in this portion of
the panel, in this 45.
“With the dismissal of [Juror 5747794], she’s now excused a
hundred percent of the African-American—potential African-American—
African-American potential jurors in this group, and it just appears, despite
counsel’s protestation to the opposite, this is a systematic dismissal of all
the African-Americans available for jury service in this matter.”
The trial court then found defendant made a prima facie showing of discrimination and
provided the prosecutor an opportunity to explain the challenge. The prosecutor
responded as follows:
“I excused [Juror 5747794] for a few reasons.
“One, she works at Wasco and she is an alcohol and drug counselor.
Again, she deals on a daily basis with convicted criminals, convicted
felons.
13.
“For similar reasons as I said to [Juror 5660560] earlier, I think that
people, male, female, no matter what color your skin is, who work on a
daily basis with assisting convicted felons, they tend to be more
sympathetic towards those charged with crimes.
“And prior to that she did that again with people with mental—I
think she said a mental facility, and she would teach alcohol and behavioral
classes in her previous employment, which was her—she said the current
employment five years. I believe she said ten years at the previous
employment.
“I anticipate in this case perhaps substance abuse coming to light
given the [Evidence Code section] 402 hearing with the allegations that the
defendant was high on PCP, and I think someone who has worked for
approximately 15 years treating people with mental or alcohol or otherwise
substance abuse related problems might yield her more sympathetic to the
defendant.
“Additionally, she talked about her husband being a gang—he was
in a gang prior to the two of them getting together. That was written in her
questionnaire.
“And she also said that people who are in street gangs are looking
for a support group with requesting—or excuse me—on the question about
do you have a strong opinion about criminal street gangs.
“Again, I think that is an answer that we haven’t seen amongst
anyone in the entire group. Typically this question is either marked N/A or
it is marked they have strong opinions that gangs are horrible and violent,
and not one time has anyone said it’s to provide youth with support or a
support system.
“So that, coupled with her employment, I feel would yield her
sympathetic towards this defendant in this type of case.
“I would say for the record, as well, that I had similar reasonings for
kicking [Juror No. 5914024 (Juror 5914024)], who was a Hispanic female.
She mentioned that her husband was accused, and even though she felt that
she could be fair, I think that her experience with him and the court system
provides a similar comparative analysis.
“She also was a social worker for five years prior to her current
employment as a health benefit advisor at Kern Medical, where she’s been
for eight months; so the social worker employment again came into play
and I think can be used for the comparative analysis.
14.
Trial counsel then provided the following additional argument in support of his
Batson/Wheeler motion:
“I think in a Batson-Wheeler context, any experienced prosecutor—
and I want to preface this by I’m not impugning [the prosecutor’s] integrity
or veracity.
“I think any experienced prosecutor can find a way to justify the
exercises of peremptory challenges for a protected group such as, in this
case, African-Americans.
“The question is—and obviously the reason that the Batson-Wheeler
line of cases exist is because there has been historically the systemic
exclusion of minorities from juries in which the defendant happens to be a
member of the minority, the same minority as that being excluded by the
prosecution, and I would suggest that the fact we have now 100 percent of
this 45-juror panel, 100 percent of that minority group, excused by the
prosecution, notwithstanding [the prosecutor’s] explanations as to her
choice of peremptories, is going to deprive my client of a fair trial, a jury
by his peers, because a jury by the peers includes African-Americans and
the cross-section. I think there’s a compelling interest to be inclusive of
those groups when possible.
“Obviously if you had [Juror 5747794] or the other two women who
were excluded and they had put on their questionnaires or stated in open
court that yes, my husband’s a gangbanger and I don’t see anything wrong
with it or I think African-American men are wrongfully persecuted by the
system, something of that nature that would indicate that they had a
political agenda or social agenda to put forward, then, yes, I think even if it
were all three, exclusion of all three under such circumstances would be
tough to battle with.
“But we have pretty innocuous reasons for these three ladies’
exclusion by [the prosecutor], which have nothing to do with—well, that
pretend to have nothing to do with race, but when you look at her answers,
those answers could—if the women weren’t black and they happened to be
white, I don’t think they would have been excused. There’s nothing in the
answers that they gave that was of any significance.
“And I understand these are peremptory challenges, but Batson-
Wheeler exists for a reason, and this is precisely the reason.” (Italics
added.)
15.
The trial court denied the second Batson/Wheeler motion. Specifically, the trial court
stated the following:
“Counsel, the record should reflect that all of these jurors filled out a
juror questionnaire, which has been part of the record. This is material that
counsel has possessed and has reviewed prior to the examination process.
And because they are part of the record, they contain material that can be
utilized and considered by counsel.
“I trust, based on that examination that both counsel did with this
initial panel, that they have reviewed the questionnaires extensively, and,
based on that review, even discerned whether they had questions for
particular individuals or whether they needed to inquire further based on
oral responses or responses contained within the questionnaires they
returned.
“The Court makes the note because there were references [the
prosecutor] made in justifying her peremptory challenge in releasing [Juror
5747794] from the panel, specifically reference to particular responses
regarding her husband being killed by another gang member and open-
mindedness and so forth, in addition to people who attend a street gang are
looking for some type of support that they’ve never had, et cetera. That is
significant because it does involve a reason that [the prosecutor] has
provided on the record.
“Additionally, and arguably more importantly for the Court’s
purposes, the Court has considered the other reason involving employment
stereotypes and so forth and the comparison analysis presented by [the
prosecutor].
“[Trial counsel], I would agree with you that if an African-American
individual was released and there was one comment used as justification to
release that person, but when reviewing the venire in its entirety through a
comparative analysis other individuals remained on the panel that were
substantially similarly situated to the person released, there would call into
question a serious concern regarding the justified reasoning in exercising a
peremptory challenge.
“In this particular case, [the prosecutor] has even conducted a
comparative analysis herself as it relates to exercising peremptory
challenges to release individuals who are similarly situated to the three
individuals in question, including [Juror 5747794], the last person that has
now become the subject of a Batson-Wheeler motion.
16.
“In considering the comments made by [the prosecutor], the Court
does find that the reasons given for challenging [Juror 5747794] are group
neutral.
“I find, from the totality of the circumstances, that the moving party
has at this time failed to establish by a preponderance of the evidence, that
the proffered explanations are genuine and not a sham, and, on that basis, I
find that group bias has not been proved.” (Italics added.)
Below we describe in more depth the circumstances surrounding the prosecutor’s
three peremptory challenges of the African-American women who were the subject of
trial counsel’s two Batson/Wheeler motions.
1. Prospective Juror 5660560
Juror 5660560 was a married 43-year-old African-American woman with seven
adult children. She was college educated and worked at the Kern County Probation
Department with adult probationers as a program specialist, which aimed to “[a]ssist
[her] participants to promote change of their thinking process … to reduce recidivism.”
In her questionnaire, Juror 5660560 stated, “at times the [criminal justice] system
is fair and at times [she] feel[s] the system has been unfair.” Specifically, she told the
prosecutor, “The reason I say that is because I feel like—well, not I feel. I know [two]
people that have been in situations where I think they were just prejudged and weren’t
given a fair opportunity, where people just automatically assumed things.”
2. Prospective Juror 5733944
Juror 5733944 was a 22-year-old African-American/Hispanic woman, and she
lived with her significant other. She graduated from a university with a bachelor’s degree
in health sciences and had worked as a retail worker for about a month.
In her questionnaire, Juror 5733944 mentioned defendant’s “name sounded
familiar to a news article [she] read about a year [ago] about a double homicide.”
Specifically, she told the prosecutor:
“My friends, probably in January or February, were thinking about
starting a crime podcast; so we were going through articles, local articles
here, and I had thought when I came a month ago [defendant’s] name
17.
sounded familiar, and then you just said two murder victims, and so now I
know that I read an article about this before.”
Further, she indicated the criminal justice system “has the best intentions but sometimes
fails.” Specifically, she mentioned an incident with her mom’s dad where he was
convicted of attempted murder and child molestation, and she believed he did not “[get]
the time that was just in that case.”
3. Prospective Juror 5747794
Juror 5747794 was a widowed 41-year-old African-American woman with four
children. She graduated with a bachelor’s degree in alcohol and drug studies and worked
as an alcohol and drug counselor at a prison. Specifically, she “provide[d] treatment
plans … and behavioral/criminal … classes to inmates that program at the facility.”
In her questionnaire, Juror 5747794 mentioned her views on the criminal justice
system are neutral “because it has its pros and cons like anything else.” Specifically, she
told the prosecutor the system has “its positives and negatives” because people have been
“wrongfully convicted” and “everything is changing as far as like, more technology being
able to actually place people in certain situations, now I’m looking at it way differently.”
She also indicated in her questionnaire her “husband was in a street gang prior to [them]
getting together” and that “[p]eople who attend a street gang are looking for some type of
support that they never had or that’s being promised to them.”
B. Applicable Law
We begin with the well-established standards governing Batson/Wheeler claims.
Trial courts have broad discretion over jury selection (People v. Whalen (2013)
56 Cal.4th 1, 29-30, disapproved on another ground in People v. Romero and Self (2015)
62 Cal.4th 1, 44, fn. 17), and peremptory challenges to excuse potential jurors “are
‘designed to be used “for any reason, or no reason at all.” ’ ” (People v. Armstrong
(2019) 6 Cal.5th 735, 765 (Armstrong), quoting People v. Scott (2015) 61 Cal.4th 363,
387). “But there are limits: Peremptory challenges may not be used to exclude
prospective jurors based on group membership such as race or gender. [Citations.] Such
18.
use of peremptory challenges violates both a defendant’s right to a jury drawn from a
representative cross-section of the community under article I, section 16 of the California
Constitution, and his right to equal protection under the Fourteenth Amendment to the
United States Constitution.” (Armstrong, at pp. 765‒766.)
With respect to jury selection, “ ‘[t]here “is a rebuttable presumption that a
peremptory challenge is being exercised properly, and the burden is on the opposing
party to demonstrate impermissible discrimination.” ’ [Citations.] Under a now familiar
three-step process, a defendant [bringing a Batson/Wheeler motion] must first ‘make out
a prima facie case “by showing that the totality of the relevant facts gives rise to an
inference of discriminatory purpose.” [Citation.] Second, once the defendant has made
out a prima facie case, the “burden shifts to the State to explain adequately the racial
exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.]
Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide …
whether the opponent of the strike has proved purposeful racial discrimination.” ’
[Citations.] The defendant’s ultimate burden is to demonstrate that ‘it was more likely
than not that the challenge was improperly motivated.’ ” (Armstrong, supra, 6 Cal.5th at
p. 766.)
“Where, as here, a trial court finds a prima facie showing of group bias but then
denies the Batson/Wheeler motion based on an evaluation of the strike proponent’s
reasons for the challenges, ‘the reviewing court skips to the third [step] to determine
whether the trial court properly credited the [proponent]’s reasons for challenging the
prospective jurors in question.’ ” (Unzueta v. Akopyan (2022) 85 Cal.App.5th 67, 80,
quoting People v. Smith (2018) 4 Cal.5th 1134, 1147.) As to this third step, “[a] [trial]
court may make a sincere and reasoned effort to evaluate a peremptory challenge even if
it does not provide a lengthy and detailed explanation for its ruling.” (People v. Baker
(2021) 10 Cal.5th 1044, 1077 (Baker); see, e.g., People v. Smith, at p. 1158; People v.
Jones (2011) 51 Cal.4th 346, 361; People v. Mills (2010) 48 Cal.4th 158, 175‒176;
19.
People v. Lenix (2008) 44 Cal.4th 602, 625‒626.) “Under our precedent, ‘[w]hen the
trial court has inquired into the basis for an excusal, and a nondiscriminatory explanation
has been provided, we … assume the court understands, and carries out, its duty to
subject the proffered reasons to sincere and reasoned analysis, taking into account all the
factors that bear out their credibility.” (Baker, at pp. 1077‒1078, quoting People v. Mai
(2013) 57 Cal.4th 986, 1049, fn. 26.)
As our Supreme Court explained in Baker:
“Because the trial court found a prima facie case of racial
discrimination and the prosecutor stated a reason for the strikes at issue, the
question before us is whether defendant has shown it ‘ “more likely than
not that” ’ at least one of the ‘ “challenge[s] was improperly motivated.” ’
[Citations.] ‘The existence or nonexistence of purposeful racial
discrimination is a question of fact.’ [Citation.] [¶] The answer to this
factual question will ordinarily depend ‘on the subjective genuineness of
the race-neutral reasons given for the peremptory challenge.’ [Citation.] A
justification based on a mischaracterization of the record could reveal a
discriminatory motive [citation], but might reflect a mere error of
recollection [citations]. Likewise, a justification that is ‘implausible or
fantastic … may (and probably will) be found to be pretext[ual],’ yet even a
‘silly or superstitious’ reason may be sincerely held. [Citations.] Of
course, the factual basis for, and analytical strength of, a justification may
shed significant light on the genuineness of that justification—and, thus, on
the ultimate question of discrimination. [Citation.] But the force of the
justification is significant only to the extent that it informs analysis of the
ultimate question of discriminatory motivation.” (Baker, supra, 10 Cal.5th
at pp. 1076‒1077.)
Therefore, at its essence, the trial court is making a credibility determination.
“ ‘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.” (People v.
Lenix, supra, 44 Cal.4th at p. 613, fn. omitted.)
20.
In light of these rules, “a trial court’s ruling on that ultimate question is ordinarily
reviewed with deference. ‘ “In the typical peremptory challenge inquiry, the decisive
question will be whether counsel’s race-neutral explanation for a peremptory challenge
should be believed. There will seldom be much evidence bearing on that issue, and the
best evidence often will be the demeanor of the attorney who exercises the challenge.” ’
[Citation.] ‘A trial court is best situated to evaluate both the words and the demeanor of
jurors who are peremptorily challenged, as well as the credibility of the prosecutor who
exercised those strikes.’ [Citations.] Thus, ‘[w]hen the trial court makes a sincere and
reasoned effort to evaluate the [proffered] reasons, the reviewing court defers to its
conclusions on appeal, and examines only whether substantial evidence supports them.’ ”
(Baker, supra, 10 Cal.5th at p. 1077, quoting People v. Melendez (2016) 2 Cal.5th 1, 15
(Melendez).) “By definition, substantial evidence review is deferential to the ruling
below—and makes it difficult to show reversible error—due to the prism through which
it mandates we review the evidence: We must resolve all conflicts in the evidence in
favor of the ruling below [citation], must draw all reasonable inferences from that
evidence in favor of the ruling below [citation], and may not reweigh the evidence or any
credibility findings.” (Estate of Berger (2023) 91 Cal.App.5th 1293, 1307.)
C. Analysis
Defendant argues the trial court’s rulings are not entitled to deference because the
court “accepted the comparisons [the prosecutor] outlined without undertaking
comparative analysis of its own and without conducting its own examination of the
record.” However, a lengthy and detailed explanation is not a prerequisite to a “sincere
and reasoned effort to evaluate a peremptory challenge.” (Baker, supra, 10 Cal.5th at
p. 1077.) Rather, “[u]nder our precedent, ‘[w]hen the trial court has inquired into the
basis for an excusal, and a nondiscriminatory explanation has been provided, we …
assume the court understands, and carries out, its duty to subject the proffered reasons to
sincere and reasoned analysis, taking into account all the factors that bear on their
21.
credibility.’ ” (Id. at pp. 1077‒1078.) With that being said, a defendant can overcome
this assumption by showing that “ ‘the proffered reasons lack[] inherent plausibility or
[are] contradicted by the record’ ” or the record establishes the trial court misunderstood
the standard to be applied. (Id. at p. 1078.) As we discuss in detail below, the trial
court’s denial of defendant’s two Batson/Wheeler motions is supported by substantial
evidence because the prosecutor provided sincere, neutral reasons for the excusals.
1. The First Batson/Wheeler Motion
As noted above, after the prosecutor’s eighth peremptory challenge, trial counsel
made a Batson/Wheeler motion. Trial counsel alleged the prosecutor excused Juror
5660560 and Juror 5733944 based on race. The trial court found trial counsel established
a prima facie case of discrimination and asked the prosecutor to explain her reason(s) for
the excusals.
a. The Prosecutor’s Fifth Peremptory Challenge of Juror
5660560
The prosecutor identified two reasons for her dismissal of Juror 5660560,
specifically Juror 5660560’s current employment as a program specialist with the Kern
County Probation Department and her past employment as a social worker for eight and a
half years, and the fact she mentioned at times the criminal justice system is not fair.
However, the prosecutor’s “main reason for kicking her was the employment” and argued
that “in [her] experience of doing this for approximately 13 years, [she] tend[ed] to
believe social workers and counselors, especially those that work with convicted
criminals, tend to be more sympathetic towards criminal defendants.”
We find the prosecutor’s justifications for this challenge to be legitimate, neutral
reasons. For purposes of Batson/Wheeler, “a ‘legitimate reason’ is not a reason that
makes sense, but a reason that does not deny equal protection.” (Purkett v. Elem (1995)
514 U.S. 765, 769.) “For example, a peremptory challenge based on a prospective juror’s
experience in counseling or social services, and the prosecutor’s concern that such a
22.
person might be too sympathetic to the defense, have been held as proper race-neutral
reasons for excusal.” (People v. Arellano (2016) 245 Cal.App.4th 1139, 1163, citing to
People v. Clark (2011) 52 Cal.4th 856, 907‒908.) Juror 5660560 was a program
specialist at the prison and had worked as a social worker for eight and a half years,
which raised the prosecutor’s concern she would be overly sympathetic towards
defendant. Further, although not her primary reason, the prosecutor was also concerned
with the fact Juror 5660560 believed at times the criminal justice system is not fair,
which is also by itself a valid neutral reason. (See People v. Winbush (2017) 2 Cal.5th
402, 439 (Winbush) [“ ‘A prospective juror’s distrust of the criminal justice system is a
race-neutral basis for excusal’ ”].) These two justifications were legitimate, neutral
reasons justifying Juror 5660560’s excusal.
b. The Prosecutor’s Eighth Peremptory Challenge of
Prospective Juror 5733944
The prosecutor identified two reasons for her dismissal of Juror 5733944,
specifically her “youth and inexperience” and the fact “she wanted to start a podcast, a
crime podcast” because in the prosecutor’s experience “anyone in the news-reporting-
type business is more liberal rather than conservative in sort of questioning what police
did, the thoroughness of police work, things of that nature, things that could be done to
help.” Further, as it related to Juror 5733944’s work experience, the prosecutor argued
she lacked “significant life experience that other jurors possess to sit on a homicide case.”
As to Juror 5733944, we also find the prosecutor’s justifications for this challenge
to be legitimate, neutral reasons for excusal. First, “[a] potential juror’s youth and
apparent immaturity are race-neutral reasons that can support a peremptory challenge.”
(People v. Lomax (2010) 49 Cal.4th 530, 575.) The prosecutor reasonably believed Juror
5733944’s lack of work experience made it difficult for her “to sit on a homicide case”
because she was only 22 years old and had worked in retail for only one month. Second,
Juror 5733944’s interest in starting a crime podcast was a race-neutral basis for the
23.
prosecutor’s challenge. (Richardson v. State (Ind.Ct.App. 2019) 122 N.E.3d 923, 929
[“[A] potential juror’s interest in law-related books and television shows has been found
to be a permissible ground for the State’s peremptory challenge.”]; see United States v.
Farhane (2d Cir. 2011) 634 F.3d 127, 157‒158 [providing that it was plausible for the
prosecutor to think that a juror who regularly watched television shows such as CSI
might be more inclined to think that forensic evidence is necessary to prove guilt]; see
also United States v. Murillo (9th Cir. 2002) 288 F.3d 1126, 1136 [finding the juror’s
statement that Judge Judy was her favorite television show was a permissible ground for
the prosecutor’s peremptory challenge].) Juror 5733944’s youth and inexperience, and
her heightened interest in the criminal justice system served as legitimate, neutral reasons
justifying excusal.
The trial court, after hearing argument from both trial counsel and the prosecutor,
specified its reasons for denying the first Batson/Wheeler motion. (Baker, supra,
10 Cal.5th at pp. 1077‒1078.) The trial court concluded, “[A]ppellate courts have
recognized a valid reason in excusing individuals for employment stereotypes, as well as
youth reasons or prospective jurors being young” and that it “has appreciated the
comparative analysis conducted by [the prosecutor] in explaining that those reasons have
been relied on by her to release individuals other than or in addition to the two
prospective jurors that have been challenged.” Accordingly, after reviewing both the
prosecutor’s justifications, coupled with the trial court’s analysis, we conclude substantial
evidence exists to support the conclusion that neutral reasons existed justifying both Juror
5660560’s and Juror 5733944’s excusal.
2. The Second Batson/Wheeler Motion
Subsequently, as noted above, after the prosecutor’s 12th peremptory challenge,
trial counsel made a second Batson/Wheeler motion. Trial counsel again alleged the
prosecutor excused Juror 5747794 based on race. The trial court found defendant made a
24.
prima facie showing of discrimination and again provided the prosecutor an opportunity
to explain the challenge.
The prosecutor identified two reasons for her dismissal of Juror 5747794;
specifically, her employment as an alcohol and drug counselor for the prison and the fact
her husband was previously in a gang and believed “street gangs are looking for a support
group.”
As to Juror 5747794, we also find the prosecutor’s justifications for this challenge
to be legitimate, neutral reasons for excusal. First, as we noted above, “a peremptory
challenge based on a prospective juror’s experience in counseling or social services, and
the prosecutor’s concern that such a person might be too sympathetic to the defense, have
been held as proper race-neutral reasons for excusal.” (People v. Arellano, supra,
245 Cal.App.4th at p. 1163, citing to People v. Clark, supra, 52 Cal.4th at pp. 907‒908.)
Second, “our Supreme Court held that contacts with members of street gangs where the
prospective juror lived provided support for the prosecutor’s bias concerns.” (People v.
Cox (2010) 187 Cal.App.4th 337, 348, citing to People v. Watson (2008) 43 Cal.4th 652,
679‒680.) Juror 5747794’s employment and the fact her husband was a former gang
member constituted neutral reasons for excusal.
The trial court then denied trial counsel’s second Batson/Wheeler motion and
reasoned that in her questionnaire, Juror 5747794 made “responses regarding her husband
being killed by another gang member and open-mindedness and so forth, in addition to
people who attend a street gang are looking for some type of support … [and] [t]hat is
significant because it does involve a reason that [the prosecutor] has provided on the
record.” Further, the trial court agreed with trial counsel “that if an African-American
individual was released and there was one comment used as justification to release that
person, but when reviewing the venire in its entirety through a comparative analysis other
individuals remained on the panel that were substantially similarly situated to the person
released, there would call into question a serious concern regarding the justified
25.
reasoning in exercising a peremptory challenge.” (Italics added.) However, the trial
court reasoned “[the prosecutor] … conducted a comparative analysis herself as it relates
to exercising peremptory challenges to release individuals who [were] similarly situated
to the three individuals in question … [and therefore,] [¶] [i]n considering the comments
made by [the prosecutor], the Court [found] that the reasons given for challenging [Juror
5747794] [were] group neutral.” Accordingly, we conclude “ ‘the trial court ma[de] a
sincere and reasoned effort to evaluate the [proffered] reasons’ ” provided by the
prosecutor, and that substantial evidence exists to support the conclusion that neutral
reasons existed justifying Juror 5747794’s excusal. (Baker, supra, 10 Cal.5th at p. 1077.)
3. Comparative Juror Analysis
Defendant further asks this court to conduct comparative juror analysis to
determine whether the prosecutor engaged in purposeful discrimination. Comparative
juror analysis evidence “ ‘is one form of relevant circumstantial evidence’ ” (People v.
Hardy (2018) 5 Cal.5th 56, 77, quoting Melendez, supra, 2 Cal.5th at p. 15) and when
undertaken, a court “engages in a comparison between, on the one hand, a challenged
panelist, and on the other hand, similarly situated but unchallenged panelists who are not
members of the challenged panelist’s protected group.” (People v. Gutierrez (2017) 2
Cal.5th 1150, 1173.)
“ ‘The rationale for comparative juror analysis is that a side-by-side
comparison of a prospective juror struck by the prosecutor with a
prospective juror accepted by the prosecutor may provide relevant
circumstantial evidence of purposeful discrimination by the prosecutor.
[Citations.]’ [Citation.] ‘If a prosecutor’s proffered reason for striking a
black panelist applies just as well to an otherwise-similar nonblack who is
permitted to serve, that is evidence tending to prove purposeful
discrimination to be considered at Batson’s third step.’ [Citation.] ‘At the
same time, “we are mindful that comparative juror analysis on a cold
appellate record has inherent limitations.” [Citation.] In addition to the
difficulty of assessing tone, expression and gesture from the written
transcript of voir dire, we attempt to keep in mind the fluid character of the
jury selection process and the complexity of the balance involved. “Two
panelists might give a similar answer on a given point. Yet the risk posed
26.
by one panelist might be offset by other answers, behavior, attitudes or
experiences that make one juror, on balance, more or less desirable. These
realities, and the complexity of human nature, make a formulaic
comparison of isolated responses an exceptionally poor medium to overturn
a trial court’s factual finding.” [Citation.]’ ” (Winbush, supra, 2 Cal.5th at
p. 442; accord, People v. Woodruff (2018) 5 Cal.5th 697, 754.)
“Pretext is established, however, when the compared jurors have expressed ‘a
substantially similar combination of responses,’ in all material respects, to the jurors
excused. [Citation.] Although jurors need not be completely identical for a comparison
to be probative [citation], ‘they must be materially similar in the respects significant to
the prosecutor’s stated basis for the challenge.’ ” (Winbush, supra, 2 Cal.5th at p. 443,
italics omitted.)
a. Comparison Between Challenged Juror 5660560 and
Prospective Juror Nos. 5966643 and 5890284
In comparison to Juror 5660560, defendant argues that “despite [the prosecutor’s]
claimed suspicion of social workers, she did not challenge” Juror No. 5966643 (Juror
5966643) and Juror No. 5890284 (Juror 5890284), who were both similarly situated as
Juror 5660560. Although Juror 5966643 was a 28-year-old Caucasian female social
worker with the Wraparound Program, she indicated during questioning that she
“work[ed] with foster and probation youth” to “try to stabilize their placement, figure out
what’s going on,” which is different than working with adult convicts in prison.
(Winbush, supra, 2 Cal.5th at p. 443.) Further, Juror 5660560 believed the criminal
justice system can be unfair because she knew of two people who “ha[d] been in
situations where [she] think[s] they were just prejudged and weren’t given a fair
opportunity, where people just automatically assumed things,” whereas, Juror 5966643
believed the criminal justice system can be improved because “every system could be
improved, like nothing’s perfect.” Unlike Juror 5660560, who had a personal, negative
experience with the criminal justice system, Juror 5966643’s statement represented a
broad, unemotional response to the criminal justice question, negating the possibility of
27.
bias against the prosecutor’s case. Accordingly, Juror 5660560 and Juror 5966643 were
not materially similar.
Additionally, Juror 5890284 was a 52-year-old Asian female psychologist at the
prison and worked as a “supervisor for 12 years” and does not work with inmates, but
rather “do[es] administrative supervisory stuff.” Further, she indicated in her
questionnaire that her “friends have both good [and] bad experiences with law
enforcement,” but clarified during questioning she “kind of grew up in the wrong side of
the town; so there was a lot of involvement with law enforcement … [a]nd then as [she]
became an adult, [she] worked in the criminal justice system; so, you know, now the
majority of [her] friends are in law enforcement, so both sides.” Juror 5890284’s
employment position is much different than Juror 5660560’s position because Juror
5660560’s position required her to work regularly with inmates.25 Further, Juror
5890284’s opinion of the criminal justice system was much more neutral than that of
Juror 5660560 because a majority of Juror 5890284’s friends were in law enforcement,
and she herself stated she had experienced “both sides” of the system. Accordingly, Juror
5660560 and Juror 5890284 were not materially similar.26
25 The prosecutor’s concern with Juror 5660560’s regular contact with inmates is
corroborated by the fact she also used her sixth peremptory challenge against Juror
5789003, who identified herself as a 34-year-old Caucasian female who worked at the
prison as a “[l]icensed vocational nurse” and had “daily” contact with its inmates.
26 Defendant also argues that because the prosecutor questioned Juror 5660560, but
not Juror Nos. 5667252 (Juror 5667252), 5788922 (Juror 5788922), and 5664671 (Juror
5664671), regarding their “neutral” questionnaire responses regarding the criminal justice
system “shows her purported concern about this subject was a pretext.” However, each
of these three jurors’ responses were distinguishable from Juror 5660560’s response.
Juror 5667252 stated the criminal justice system “works, most of the time;” Juror
5788922 only circled “neutral” without providing any further response; and Juror
5664671 indicated “that all points of views have to be taken into consideration,” which is
exactly what any litigant, regardless of side, desires in a juror. Accordingly, we are not
convinced the prosecutor’s concern with Juror 5660560’s personal views and experiences
with the criminal justice system “was a pretext.”
28.
b. Comparison Between Challenged Juror No. 5733944 and
Sitting Juror Nos. 5664671, 5879303 and 5775951
Defendant further contends Juror 5733944 was materially similar with Juror
5664671, Juror No. 5879303 (Juror 5879303), and Juror No. 5775951 (Juror 5775951)
because they all watched or consumed crime television or books. In their questionnaires,
Juror 5664671 stated she watched “CrimeTV” and read “crime” books, and Juror
5879303 and Juror 5775951 both indicated they read crime related books. Defendant
argues the prosecutor’s excusal of Juror 5733944 based on her interest in starting a crime
podcast was pretextual because Juror 5733944’s “interest in true crime was more like
Juror 566467[1]’s interest in Crime TV or the others’ taste in fiction yet [the prosecutor]
excused [Juror 5733944], not the others.” However, these three sitting jurors’ mere
consumption of crime-related media is much different than Juror 5733944’s desire to
devote her life to starting a crime podcast, which would have required copious amounts
of research into criminal cases. Further, as noted above, the prosecutor referenced Juror
5733944’s “youth and inexperience,” as a separate justification for excusal, which by
itself is a race-neutral basis for excusal. (People v. Lomax, supra, 49 Cal.4th at p. 575.)
c. Comparison Between Challenged Juror 5747794 and
Challenged Juror No. 5914024
Defendant further contends the prosecutor’s “professed concern about [Juror
5747794’s] views [about gangs] was not … ‘related to the particular case to be tried’
[citation], and so shows the pretextual natu[r]e of the strike.” Specifically, defendant
argues “there was no testimony tying the murders to gangs and only some suggestion of
[defendant’s] gang membership” and, therefore, the prosecutor’s concern regarding a
jurors’ views on gangs was unwarranted. However, as noted above “our Supreme Court
held that contacts with members of street gangs where the prospective juror lived
provided support for the prosecution’s bias concerns.” (People v. Cox, supra,
187 Cal.App.4th at p. 348, citing to People v. Watson, supra, 43 Cal.4th at pp. 679‒680.)
As defendant concedes, there was “some suggestion of [defendant’s] gang membership”
29.
and, therefore, it was reasonable for the prosecutor to be concerned with potential bias.
Further, although the prosecutor argued her challenge to Juror 5747794 was comparable
to her challenge to Juror 5914024, defendant argues “the two are not at all comparable.”
Regardless of the two jurors’ comparability, the prosecutor was obviously concerned with
both Juror 5747794’s and Juror 5914024’s experience with the criminal justice system
and, thus, ended up using peremptory challenges against both jurors. Therefore, the
prosecutor’s use of a peremptory challenge against Juror 5747794 was proper.
4. Other Factors
Finally, defendant argues “[t]he prosecutor’s use of peremptories to exclude all the
African-American woman shows the challenges were indeed based on race.” Although a
Batson/Wheeler violation may be found if the prosecutor “ ‘ “ ‘struck most or all of the
members of the identified group from the venire,’ ” ’ ” the reviewing court also considers
whether the prosecutor “ ‘ “ ‘used a disproportionate number of his [or her] peremptories
against the group.’ ” ’ ” (People v. Taylor (2010) 48 Cal.4th 574, 615, quoting People v.
Kelly (2007) 42 Cal.4th 763, 779.)
Originally, there were six African-American women in the venire. Two of the
African-American women were excused—one because of exposure to COVID-19 and the
other for cause. A third African-American woman was never called to the panel.
Therefore, of the six African-American women who originally filled out questionnaires,
only three were called to the panel and questioned. Although the prosecutor did excuse
all three remaining African-American women in the 82-person venire, these three
peremptory challenges only represented 19 percent of the prosecutor’s 16 peremptory
challenges.
We find People v. Harris (2013) 57 Cal.4th 804 (Harris) instructive. In Harris,
the defendant argued “the prosecutor improperly exercised peremptory challenges against
two African-American prospective jurors … on the basis of race.” (Id. at p. 833.) In that
case, “[t]hree of the 69 prospective jurors in the jury pool were African-American” and
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“[o]ne African-American woman ultimately served on defendant’s jury.” (Id. at p. 834.)
The court affirmed the trial court’s denial of the Batson/Wheeler motion at the prima
facie stage because “the record … shows apparent race-neutral reasons for the
prosecutor’s excusals” of the jurors. (Id. at p. 835.) Additionally, the court noted “the
small number of African-Americans in the jury pool makes ‘drawing an inference of
discrimination from this fact alone impossible.’ ([People v.] Bell [(2007)] 40 Cal.4th
[582,] 597‒598 [no inference of discrimination when prosecutor excused two of the three
African-American women on the panel]; see People v. Bonilla (2007) 41 Cal.4th 313,
343 [‘ “ ‘As a practical matter … the challenge of one or two jurors can rarely suggest a
pattern of impermissible exclusion.’ ” [Citations.]’].)” (Harris, at p. 835, italics
omitted.) Here, these three excused jurors were in a venire of 82 prospective jurors. This
“small number of African-Americans in the jury pool makes ‘drawing an inference of
discrimination … impossible.’ ” (Ibid.)
Further, the prosecutor extensively questioned all three of the challenged jurors in
addition to considering the prospective jurors’ questionnaires27 (cf., People v. Kelly,
supra, 42 Cal.4th at p. 779 [a prima facie case of discrimination “may be supplemented
when appropriate by such circumstances as the failure of his opponent to engage these
same jurors in more than desultory voir dire, or indeed to ask them any questions at all”]),
and as we discussed above, the prosecutor provided neutral justifications for each
challenge thereby diminishing the likelihood of a discriminatory purpose behind the
challenges. (Baker, supra, 10 Cal.5th at p. 1077.) In the end, as our high court observed
in Batson, “We have confidence that trial judges, experienced in supervising voir dire,
will be able to decide if the circumstances concerning the prosecutor’s use of peremptory
challenges creates a … case of discrimination against black jurors.” (Batson, supra,
27 It is important to note that a court “ ‘place[s] little weight on the prosecutor’s
failure to individually or more thoroughly question a prospective juror before exercising a
peremptory challenge’ ” where the “prosecutor had a detailed jury questionnaire to
review” before voir dire. (Melendez, supra, 2 Cal.5th at p. 19.)
31.
476 U.S. at p. 97, italics omitted.) Accordingly, in consideration of this deference, we
conclude substantial evidence supports the trial court’s denial of trial counsel’s two
Batson/Wheeler motions.
II. The Trial Court Did Not Err in Admitting Paul Greene’s Testimony
Regarding the ShotSpotter Technology
Defendant further contends the trial court erred in admitting ShotSpotter evidence
under Kelly, and that Greene lacked the necessary qualifications to testify as an expert on
the ShotSpotter technology. As to both contentions, we disagree.
A. Additional Factual Background
As noted above, ShotSpotter is “a company that has developed, installs, and
operates the ShotSpotter gunshot detection and location system,” which “is an acoustic
gunshot detection and location system.” ShotSpotter “install[s] an array, a number of
microphone sensors, in a neighborhood or an area that [their] customer, typically the
police, they identify” and “[t]hose sensors listen specifically for impulsive noises …
specifically, the sounds of gunfire.”
1. Paul Greene’s Background
Paul Greene was the manager of forensic services at ShotSpotter and had been
employed with the company for over 14 years. Although Greene only possessed a high
school diploma, in 2004, he worked for the United States Joint Forces Command “doing
systems integration, testing, different types of sensors … and integrating those sensor
systems into a common operating picture system where a unit or incident commander
could easily see all the electronic assets … available to [them].” Two years later, he
worked for the New Mexico Institute of Mining and Technology “managing the IT
department and the command and control systems at the Playas Training & Research
Center in Playas, New Mexico.” He “deal[t] with multiple vendors supplying sensor
systems, which [he] would install on [their] ranges, integrate them into [their] systems,
32.
and then run military police and Homeland Security exercises against those systems and
then record the results.”
In 2007, Greene started working for ShotSpotter and installed sensors, repaired
sensors, and ran live-fire tests with new customers, and live-fire tests with research and
development testing for the company. His “current role as the manager of forensic
services is primarily … to perform a forensic review of gunshot incidents that are
captured by ShotSpotter.” It is also his “responsibility to develop training material and
certification material for new experts that [they] hire in the future.” He also had “a hand
in developing policies and procedures that [they] employ for forensic examination and for
expert testimony.” Greene had been qualified and had testified as an expert in this area
of the ShotSpotter technology 115 times throughout the United States, and is one of two
ShotSpotter experts in the world.
2. The ShotSpotter Technology
Greene described the ShotSpotter technology as follows:
“So we have a neighborhood, a large area, a couple square miles,
that has a number of ShotSpotter sensors installed. Somebody inside of
that ShotSpotter array fires a gun. The bang, the muzzle blast of that
weapon being fired, the sound of that muzzle blast, travels outward in all
directions at the speed of sound. As it travels outward in all directions, it is
detected by ShotSpotter sensors at different times, because—at different
distances and different times.
“The sensors then, when they detect it, we call that detection time
the arrival time. It then reports the arrival time back to our location server
software.
“And in the location server software, the first thing it tries to do is
calculate the geographic location of where the weapon was fired, the origin
of that impulsive noise, and we do that by using a mathematical system
called multilateration, which is very similar—some of you might know of
or have heard of triangulation.
“Triangulation is where you use two known points to locate an
unknown point on the map or in space.
33.
“Multilateration, we’re using many known points to determine the
location of an unknown point, in this case the many known points being we
know the exact location of every ShotSpotter sensor in the array, and the
unknown point being where the weapon was fired.
“So as an example, we’ll simplify how this works and we’ll limit it
to three sensors detecting a single gunshot.
“So again, the muzzle blast, the sound of that muzzle blast, travels
outward and is detected by sensors A, B, and C at slightly different times
because they are at different distances from the shooting location. They
report the arrival time back to the location server.
“The location server then will find the differences in time,
differences in arrival times, between as many unique pairs of sensors as
possible; so with three sensors, we can make three unique pairs. [¶] … [¶]
“We then take that geographic coordinate. We then convert it to a
street address using a third-party software. We then attempt to characterize
or label it as a type of gunfire or something other than gunfire.
“Once we do that, we then issue an alert. The software issues an
alert.
“The first person to see that alert is the ShotSpotter incident review
center. The incident review center is staffed 24 hours a day, seven days a
week. They are trained people who are going to acknowledge receipt of
that alert. They’re going to be able to listen to audio clips of the shooting
incident or of the impulsive incident. And they’re going to make a
judgment call.
“If they really believe that it’s gunfire, then they’ll publish it.
They’ll publish it and they’ll send it directly to our customers to be acted
upon.
“If they don’t believe that it’s gunfire for whatever reason, they can
dismiss the alert. Even if they dismiss the alert, we still save all of the data
just in case we’re wrong.
“But all of this, the detection, the location, the classification, and the
alert that’s sent to our customers all occurs in typically under 60 seconds.
Even more typically around 45 seconds. So it’s very quick.
“And that’s how ShotSpotter works.”
34.
3. Trial Counsel’s Motion to Strike
After Greene’s testimony concluded, trial counsel “ask[ed] that all of his
testimony, ‘his’ being Mr. Greene’s testimony, be stricken.” Specifically, trial counsel
argued the following in support of his motion to strike:
“First of all, there is, to me, a big Kelly-Frye issue. ShotSpotter, I
contend, is not a science. There’s no indication that it’s widely accepted in
the scientific community.
“Even if it were, Mr. Greene doesn’t have the educational
background or credentials to testify as an expert. Basically, what he did
was get up on the witness stand and give a promotional speech. He’s not
qualified to make the—draw the conclusions that he did, to give the
testimony he did, both because it’s not a science and, secondly, he’s not
qualified even were it a science.
“Secondly, he testified—when I asked him, I said, so the person who
really made the observations is the person we’re not going to hear testify in
this court, and he said, ‘Yes.’
“And the long and the short of it is that we have to rely on him and
his recollection of what some other person said about his or her perceptions
over a year ago, and now that person is insulated from cross-examination
by the defense because she’s not here to testify and Mr. Greene is testifying
for her, and I think that’s the essence in Crawford[28] is we get to the people
who really did the work and got the information, not someone to whom she
writes a report.” (Italics added.)
The prosecutor responded that she did not believe Kelly was “implicated in any way”
because Greene “testified 115 times in courts throughout this country, a quarter of which
were in the State of California” and that Crawford is not implicated because “the sensor
is what delivers the data to ShotSpotter,” and “[j]ust because someone received the data
and put it into the system, [Greene] is the one who examined the data, analyzed it, and
authored a report. No one else did.” (Italics added.) The trial court subsequently denied
trial counsel’s motion to strike and stated the following:
28 Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
35.
“Counsel, for purposes of determining a witness’s qualifications to
testify as an expert witness, the Court must consider the testimony itself,
along with all the other circumstances surrounding the individual’s
testimony.
“It’s apparent to the Court that Mr. Greene was proffered as an
expert in the ShotSpotter technology, and he went through his curriculum
vitae in that regard.
“Evidence Code [s]ection 720 does articulate the qualifications of an
expert witness, and one circumstance is an individual who has special
knowledge, skill, experience, training, or education sufficient to qualify
him as an expert on a subject to which his testimony relates.
“Firstly, the subject matter of ShotSpotter generally, this Court finds,
is beyond the common knowledge of a layperson, and therefore a qualified
witness’s testimony regarding that subject matter could aid and assist the
jury in understanding the information provided and ultimately considering
that information.
“Mr. Greene’s experience as it relates to working on networks and
so forth, even his training in the military, to such an extent, the accumulated
training and experience with firearms and so forth, does put him above and
beyond what a normal citizen and its knowledge would have.
“Additionally, it does appear that he was qualified to perform the job
that he was asked to do when he joined ShotSpotter back in the 2000s.
“The Court does, therefore, find that he is qualified as an expert
witness in this area and, for the reasons previously stated, would aid and
assist the jury.
“The other issue in this case regarding Crawford is to determine the
applicability of Crawford and whether there was hearsay information relied
upon by Mr. Greene in formulating whatever opinion that he formulated.
“Now, firstly, there was testimony procedurally of what happens
when a ShotSpotter sensor is triggered. There is an operator that works for
ShotSpotter who reviews the information and then processes that
information.
“Mr. Greene’s role in this case was not in talking with nor relaying
to the jurors what another person told him. That would be, arguably,
hearsay and that would violate Crawford if it involved case-specific facts.
36.
“Mr. Greene’s role, however, was to review data that was obtained
from the sensors. After reviewing that data, he validated the data or
determined its validation. He then recorded the data into a report, and
included in recording that data is creating a geolocation map for the
longitudinal and latitudinal lines from the sensor, in addition to the
recording.
“He testified about the procedure that he utilizes, as well as the
minimum requirement of sensors necessary on a single gunshot versus
multiple gunshots. He also explained how the geolocation is formulated
mathematically by utilizing the sensors and the acoustic resonance derived
from whatever sound was obtained.
“He also indicated that, based on his training and experience, he
could discern whether a sound is a gunshot or is not a gunshot.
“For purposes of Crawford, since Mr. Greene did not rely on
conversations with other human beings or individuals, it does not appear
that a Crawford issue has even been raised. Mr. Greene’s testimony
involved his own independent review of data received from the sensors
involved, as well as recording that data and interpreting that data. That is
information that this jury certainly can consider.
“To a certain extent, they must determine what credibility, if any, to
give Mr. Greene, as well as the weight, if any, they will give to the exhibits
testified to by Mr. Greene, but it is not a Crawford issue.” (Italics added.)
B. Forfeiture
At the outset, the People contend that trial counsel forfeited the Kelly argument by
failing to raise this claim in a timely manner. Specifically, the People argue defendant
“declined to have a pretrial hearing on the foundation of the ShotSpotter evidence under
Evidence Code section 402” and did not raise a Kelly claim at any point during the
examination of Greene, and it was “[o]nly after Greene was released as a witness and
after the court had moved on to other business, did [defendant] raise Kelly[] in support of
his motion to strike.” We agree.
The Kelly issue must be raised promptly by specific objection, or otherwise the
issue is waived on appeal. (People v. Cooper (1991) 53 Cal.3d 771, 812; People v.
Stanley (1984) 36 Cal.3d 253, 260‒261.) Furthermore, the trial court is not obligated to
raise the issue and hold a Kelly hearing sua sponte absent a timely and proper objection
37.
from counsel. (People v. Kaurish (1990) 52 Cal.3d 648, 688.) Here, prior to Greene’s
testimony, the prosecutor inquired as to whether the trial counsel wanted an Evidence
Code section 402 hearing to question Greene regarding the ShotSpotter technology, but
trial counsel responded, “Actually, since he’ll be testifying as an expert witness, I
assume, I think I can cover the same ground on cross-examination as I could in a[n]
[Evidence Code section] 402 [hearing] with less time.” The trial court then asked trial
counsel, “So I understand that to mean, [trial counsel], you’re not asking for a[n]
[Evidence Code section] 402 hearing on it, but you will determine its admissibility if and
when the individual testifies in front of the jury?” Trial counsel replied, “Yes, sir.” Trial
counsel did not raise a Kelly objection until after Greene had testified and was released
from the trial. Had trial counsel raised a Kelly objection prior to the trial, the trial court
could have properly weighed Kelly’s applicability as it related to Greene’s testimony
before the jury heard the evidence. However, trial counsel’s failure to do so deprived the
trial court from weighing the ShotSpotter evidence before it was presented to the jury.
(See People v. Lewis (2008) 43 Cal.4th 415, 481 [“Failure to press for a ruling on a
motion to exclude evidence forfeits appellate review of the claim because such failure
deprives the trial court of the opportunity to correct potential error in the first instance”],
overruled on another ground in People v. Black (2014) 58 Cal.4th 912, 919‒920.)
Therefore, this untimely objection forfeited this claim on appeal. In any event, however,
we also conclude this claim fails on its merits.
C. The ShotSpotter Technology Did Not Require a Kelly Hearing
Defendant argues the trial court erred when it refused to hold a Kelly hearing
because “when the defense requests a hearing on the scientific reliability of the
ShotSpotter technology, it is error to refuse.” First and foremost, as noted above, trial
counsel did not raise a Kelly issue until after Greene’s testimony had already concluded
and he had been dismissed from the trial; thus, it was not error for the trial court to deny
the motion to strike after the jury had already heard the testimony. Second, as we discuss
38.
in detail below, the ShotSpotter technology did not require a Kelly hearing to be
admissible.
1. Applicable Law
“Under the Kelly rule, ‘ “when faced with a novel method of [scientific] proof,
[we] have required a preliminary showing of general acceptance of the new technique in
the relevant scientific community” before the scientific evidence may be admitted at
trial.’ [Citations.] Kelly ‘renders inadmissible evidence derived from a “new scientific
technique” unless the proponent shows that (1) “the technique is generally accepted as
reliable in the relevant scientific community”; (2) “the witness testifying about the
technique and its application is a properly qualified expert on the subject”; and (3) “the
person performing the test in the particular case used correct scientific procedures.” ’ ”
(Nieves, supra, 11 Cal.5th at p. 444.) “[T]here is no clear definition of science” and,
thus, “the application of that term is guided by resort to the ‘narrow “common sense”
purpose’ behind the rule: ‘to protect the jury from techniques which … convey a
“ ‘misleading aura of certainty.’ ” ’ … The analysis is designed to address ‘scientific
evidence or technology that is so foreign to everyday experience as to be unusually
difficult for laypersons to evaluate.’ ” (People v. Lucas (2014) 60 Cal.4th 153, 223‒224,
disapproved in part on another ground in People v. Romero and Self, supra, 62 Cal.4th at
p. 53, fn. 19.)
“Not every subject of expert testimony needs to satisfy the Kelly test. Courts
determining whether Kelly applies must consider, first, whether the technique at issue is
novel, because Kelly ‘ “only applies to that limited class of expert testimony which is
based, in whole or part, on a technique, process, or theory which is new to science and,
even more so, the law.” ’ [Citation.] Second, courts should consider whether the
technique is one whose reliability would be difficult for laypersons to evaluate. A ‘Kelly
hearing may be warranted when “the unproven technique or procedure appears in both
name and description to provide some definitive truth which the expert need only
39.
accurately recognize and relay to the jury.” ’ [Citation.] Conversely, no Kelly hearing is
needed when ‘[j]urors are capable of understanding and evaluating’ the reliability of
expert testimony based in whole or in part on the novel technique.” (People v. Peterson
(2020) 10 Cal.5th 409, 444 (Peterson), italics omitted.) “Appellate courts review de
novo the determination that a technique is subject to Kelly” (People v. Jackson (2016)
1 Cal.5th 269, 316), and we also review de novo “the trial court’s evaluation regarding
whether a new scientific technique is generally accepted as reliable in the relevant
scientific community” (Nieves, supra, 11 Cal.5th at p. 444).
2. Analysis
Defendant argues the trial court erred in admitting the ShotSpotter evidence based
“on a novel scientific method as part of its proof” “to prove when the shots were fired
and, to a lesser extent, how many shots there were.” In support, defendant relies heavily
on the First District, Division Two’s opinion in People v. Hardy (2021) 65 Cal.App.5th
312 (Hardy), which held, “Shotspotter’s technology remains sufficiently novel to merit
our courts’ review of it under Kelly[] to determine its scientific validity and reliability”
and thus, “because there was no Kelly[] hearing, the prosecution failed to meet its burden
of satisfying the three prongs of the Kelly[] reliability test.” (Id. at pp. 327‒328.)
Based on Greene’s testimony, we are unconvinced the ShotSpotter system requires
Kelly review. Greene testified that in order to determine whether an incident involved
gunfire, the review operator “listen[s] to audio clips that were recorded by the various
sensors, at least four sensors” and “they’re trying to not necessarily determine is this truly
gunfire,” but rather, “[t]heir job is mostly to weed out those incidents that are absolutely
definitely not gunfire.” He further testified that ShotSpotter “detect[s] and accurately
locate[s] at least 90 percent of all outdoor and unsuppressed gunfire,” but did
40.
acknowledge there was no external control that would validate the technology’s
accuracy.29
This testimony does not suggest the ShotSpotter process for identifying gunshots
is based on a novel method of scientific proof. (Nieves, supra, 11 Cal.5th at p. 444.)
Specifically, the review operator, after listening to audio clips, makes the ultimate
determination as to whether the incident involved gunshots with 90 percent accuracy.
The process of listening to sounds and determining whether they sound like gunshots is
not a scientific technique, let alone a novel one. Indeed, both expert and lay witnesses
regularly testify regarding the sounds of gunshots. (See, e.g., People v. Fuiava (2012)
53 Cal.4th 622, 671‒673; People v. Harris (1989) 47 Cal.3d 1047, 1063; People v.
Mathews (2018) 21 Cal.App.5th 130, 133; see also People v. Bell (2019) 7 Cal.5th 70,
104 [admission of audio recording of gunshots from crime scene surveillance video];
Evid. Code, § 720, subd. (a).)
Based on the foregoing, the process for characterizing sounds as gunshots does not
purport to “ ‘ “provide some definitive truth which the expert need only accurately
recognize and relay to the jury.” ’ ” (Peterson, supra, 10 Cal.5th at p. 444.)
Furthermore, Greene acknowledged the imperfections of the system and testified that
ShotSpotter “give[s] [their] customers a limited performance guarantee,” thereby
29 Another court considering the admissibility of ShotSpotter evidence explained:
“The digital signal processors of the sensors measure sound input to determine if the
sound meets 28 different audio characteristics of ‘impulsive audio pulses,’ or a ‘bang,
boom, or pop,’ and could thus be categorized as a possible gunshot.” (State v. Hill (Neb.
2014) 851 N.W.2d 670, 679.) “If the sound meets the preprogrammed criteria for a
possible gunshot,” it is transmitted to the central location server for review by a human
reviewer, who rules out a false positive. (Ibid.) The court concluded the ShotSpotter
system was sufficiently reliable under the standard set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993) 509 U.S. 579 (Daubert) and corresponding state case law,
and the evidence therefore could be presented to the jury. (State v. Hill, at pp. 690‒691.)
We acknowledge our Supreme Court has declined to adopt the Daubert standard, under
which widespread acceptance of a scientific technique is not required for admissibility.
(See People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 831, fn. 7.)
41.
dispelling any “ ‘ “ ‘misleading aura of certainty’ ” ’ ” regarding the process. (People v.
Lucas, supra, 60 Cal.4th at p. 223.) In light of these circumstances, we do not believe
jurors would be incapable of understanding and evaluating the reliability of this process
for classifying sounds as gunshots or nongunshots. (See Peterson, at p. 444.)
Accordingly, we conclude Greene’s testimony regarding the characterization of particular
sounds as gunshots was not required to satisfy the Kelly test before it could be admitted.
Nevertheless, defendant relies on Hardy in support of his argument the trial court
erred in failing to conduct a Kelly hearing. In Hardy, “the prosecutor introduced the
Shotspotter evidence through … the undercover officer who had surveilled the scene on
the night of the incident from a car parked … across from the store.” (Hardy, supra,65 Cal.App.5th at p. 322.) “[T]he prosecutor asked [the officer] about Shotspotter [and
the officer] … said it was ‘technology that we have in Oakland that we use that detects
the sound of gunfire,’ but that the police department did not operate it.” (Id. at p. 323,
italics added.) Prior to the officer’s testimony, the defendant moved to exclude the
ShotSpotter evidence in his motions in limine, but “[t]he trial court denied [the
defendant’s] motion in limine without conducting an evidentiary hearing to determine
whether Shotspotter’s technology meets the standard of scientific reliability under
Kelly[], although the defense requested such a hearing.” (Id. at p. 324.) The Hardy court
reversed because the “Shotspotter’s technology remains sufficiently novel” and “the trial
court was required to review the Shotspotter evidence under Kelly[] when offered to
prove the number of shots fired before admitting it [and] [t]herefore, the trial court erred
by failing to do so.” (Id. at pp. 327‒328.)
Hardy is distinguishable from this case. Unlike in Hardy, trial counsel never
made a motion to “exclude the ShotSpotter evidence” in his motions in limine (Hardy,
supra, 65 Cal.App.5th at p. 321), but rather, after the trial court provided him an
opportunity to conduct an Evidence Code section 402 hearing to inquire as to the
ShotSpotter technology and Greene’s expert qualifications, decided to “cover the same
42.
ground on cross-examination as [he] could in a[n] [Evidence Code section 402 hearing]
with less time.” Most importantly, the prosecutor did not call an officer whose “police
department did not operate [ShotSpotter]” (id. at p. 323), but rather called Greene, who
was a manager of forensic services at ShotSpotter for over 14 years and had been
qualified and had testified as an expert in this area 115 times throughout the United
States.
Regardless, even if we assume the ShotSpotter technology is subject to Kelly
review, we need not determine whether it meets the Kelly requirement of being
“ ‘ “generally accepted as reliable in the relevant scientific community.” ’ ” (Nieves,
supra, 11 Cal.5th at p. 444.) This is because, as we describe in detail below, any
conceivable error in admitting ShotSpotter evidence regarding the classification of
sounds as gunshots was harmless. Kelly is the state law standard for admissibility of
scientific evidence. (See People v. Daveggio and Michaud, supra, 4 Cal.5th at p. 831,
fn. 7.) “Absent fundamental unfairness, state law error in admitting evidence is subject to
the traditional … test” under People v. Watson (1956) 46 Cal.2d 818. (People v. Partida
(2005) 37 Cal.4th 428, 439.) Our Supreme Court has confirmed that Kelly error is
subject to Watson review for harmlessness, which focuses on what the jury was likely to
have done in the absence of the error under consideration.30 (People v. Schultz (2020)
10 Cal.5th 623, 661; People v. Venegas (1998) 18 Cal.4th 47, 93.)
30 Defendant argues the admission of this evidence also violated his federal due
process rights, and thus is subject to review under the harmless beyond a reasonable
doubt standard articulated in Chapman v. California (1967) 386 U.S. 18, 24. “But the
admission of evidence, even if erroneous under state law, results in a due process
violation only if it makes the trial fundamentally unfair.” (People v. Partida, supra,37 Cal.4th at p. 439.) Thus, to prove a deprivation of federal due process rights,
defendant must satisfy a high constitutional standard. “ ‘Only if there are no permissible
inferences the jury may draw from the evidence can its admission violate due process.
Even then, the evidence must “be of such quality as necessarily prevents a fair trial.”
[Citations.] Only under such circumstances can it be inferred that the jury must have
used the evidence for an improper purpose.’ [Citation.] ‘The dispositive issue is …
whether the trial court committed an error which rendered the trial “so ‘arbitrary and
fundamentally unfair’ that it violated federal due process.” ’ ” (People v. Albarran
43.
D. The Trial Court Did Not Err in Finding Greene Qualified as an Expert
Witness
Apart from the argument the ShotSpotter technology required a Kelly hearing,
defendant further contends the trial court erred in concluding that Greene was qualified as
an expert to testify about the ShotSpotter technology because “[n]othing in Greene’s
background showed his expertise in understanding and testifying about these complex
[ShotSpotter] systems.”
1. Applicable Law
“ ‘ “The trial court’s determination of whether a witness qualifies as an expert is a
matter of discretion and will not be disturbed absent a showing of manifest abuse.” ’
[Citation.] We find such abuse only where ‘ “ ‘ “the evidence shows that a witness
clearly lacks qualification as an expert.” ’ ” ’ [Citation.] ‘ “ ‘ “Where a witness has
disclosed sufficient knowledge of the subject to entitle his opinion to go to the jury, the
question of the degree of his knowledge goes more to the weight of the evidence than to
its admissibility.” ’ ” ’ [Citations.] As with expert qualifications, we review trial court
decisions about the admissibility of evidence for abuse of discretion. Specifically, we
will not disturb a trial court’s admissibility ruling ‘ “except on a showing the trial court
exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted
in a manifest miscarriage of justice.” ’ ” (People v. Morales (2020) 10 Cal.5th 76, 97
(Morales).)
2. Analysis
Here, Greene testified he worked at ShotSpotter as the manager of forensic
services and had been employed with the company for over 14 years. His “current role as
the manager of forensic services is primarily … to perform a forensic review of gunshot
(2007) 149 Cal.App.4th 214, 229–230.) Defendant has not shown that the admission of
the ShotSpotter evidence rendered his trial fundamentally unfair, particularly given that
federal law does not require proof that a scientific technique is generally accepted as
reliable in the relevant scientific community before such evidence may be admitted. (See
Daubert, supra, 509 U.S. at pp. 588–589.)
44.
incidents that are captured by ShotSpotter.” It is also his “responsibility to develop
training material and certification material for new experts that [they] hire in the future.”
He had been qualified as an expert 115 times throughout the United States and is one of
two ShotSpotter experts in the entire world. The trial court, in its analysis, found that
Greene properly “went through his curriculum vitae” and found that his “experience as it
relates to working on networks and so forth, even his training in the military, … the
accumulated training and experience with firearms and so forth, does put him above and
beyond what a normal citizen and its knowledge would have.” “[G]iven [Greene’s]
relevant on-the-job training and experience, we cannot say [he] ‘ “ ‘ “clearly
lack[ed]” ’ ” ’ the necessary qualifications, such that the trial court abused its discretion
in finding him qualified to testify as an expert” regarding the ShotSpotter technology.
(Morales, supra, 10 Cal.5th at p. 99.) Furthermore, Greene’s prior expert qualification
and expert testimony in 115 separate cases supports the trial court’s finding. (See People
v. Williams (1997) 16 Cal.4th 153, 195 [giving previous expert testimony supports a later
qualification as an expert witness].) Accordingly, the trial court did not abuse its
discretion in finding that Greene qualified as an expert witness regarding the ShotSpotter
technology.
E. Prejudice
However, even if we found the trial court erred, defendant was not prejudiced by
the introduction of the ShotSpotter evidence. The significance of the ShotSpotter
evidence was that the Bakersfield Police Department received notifications from
ShotSpotter that two gunshots had been fired near the 10th Street and M Street
intersection. Officers arrived at the disclosed location and noticed Paul and Jerome lying
the roadway. It appears the ShotSpotter evidence was not intended to prove that gunshots
had actually been fired, but rather to establish that the Bakersfield Police Department
believed gunshots had been fired and to explain “subsequent action[s] by … law
enforcement officer during his [or her] investigation into a murder.” (People v. Samuels
45.
(2005) 36 Cal.4th 96, 122.) However, irrespective of the ShotSpotter evidence, the
evidence supporting defendant’s guilt as to the murders was overwhelming. First, James,
a percipient witness, observed an individual shoot both Paul and Jerome, and described
both murders in detail. Second, officers located blood, two spent nine-millimeter bullet
casings near Paul’s and Jerome’s bodies, and defendant’s handprint inside the van. It was
later determined the bullet casings had been fired by defendant’s black handgun—a gun
that Valerie, his girlfriend, had observed defendant with the day before. Defendant’s cell
phone had also been used at the time and place where the murders occurred and
defendant himself admitted he was with Paul and Jerome at the time and place of the
murders. Therefore, irrespective of the ShotSpotter evidence, the evidence
overwhelming established defendant murdered Paul and Jerome.
III. The Trial Court Had No Duty to Conduct a Marsden Hearing and Inquire as
to Trial Counsel’s Representation of Defendant
Defendant further contends the trial court prejudicially erred when it: (1) failed to
hold a Marsden hearing and (2) failed to protect his Sixth Amendment right to effective
counsel. We again disagree.
A. Additional Factual Background
Before the defense rested, trial counsel asked for a meeting outside the presence of
the jury. The following relevant exchange is as follows:
“[TRIAL COUNSEL]: This is a little unusual and I appreciate the
Court indulging me.
“This morning when we arrived, [defendant] was upset with me for
not having introduced certain videos and other pieces of evidence that he
thought were critical to his case. I tried to explain to him the reasons why
not.
“He’s upset with me now for not taking him on redirect. I don’t
want to invite error by being ineffective in my assistance to him.
“And before we get to that juncture—first of all, let me preface it
with this: Yesterday during [defendant’s] cross-examination, as I was
looking at the jury, three of the jurors were laughing during his cross-
46.
examination, number 11, in particular. Two of the others were putting their
clipboards to cover their faces to hide the fact that they were laughing.
“At that point I realized that things were just getting worse, not
better, and I thought that the lesser time that was spent on his testimony the
better, trying to salvage what we could of a bad situation.
“The matters that we talked about this morning were videos that I
didn’t think were relevant and I had made tactical decisions not to, but
inasmuch as we’re dealing with a potential life without possibility of parole
case, I thought the Court might indulge [defendant] and ask him what it is
he wants me to do before I rest.
“I understand it’s an unusual request.
“THE COURT: This is a very extremely unusual request.
“[TRIAL COUNSEL]: I understand that.
“THE COURT: [Trial counsel], and [the prosecutor], for that
matter, since she is present in court, I think I’ve said this quite a few times,
bordering on ad nauseam, and that is, this is not my case. It is your case.
You folks are the advocates with your respective sides.
“I can appreciate the tenacity with which you comport yourselves
while doing it under the guise according to being officers of the court. I
respect both of you folks as highly experienced and trained litigators,
having tried cases against one of you and having presided over a number of
cases with the other, and I rely on the fact that given your highly
accumulated experience in criminal law, as well as the cases that both of
you tried, I rely on your trial tactics and strategies and recognize that the
discretion of how the case is to be conducted, including the witnesses that
might be called, the defenses that might be raised, the evidence that might
be presented, is certainly within counsel’s purview and discretion.
“Objectively, recognizing that I am a neutral arbiter in this case or a
neutral magistrate in this case, there is nothing that has been done on both
sides that this Court would be in position to second-guess. Sometimes that
circumstance arises and very few times does the Court have to step in, and
that stepping in is arbitrarily done and not done at the request of either
counsel.
“The question that you have asked, [trial counsel], is something that
certainly this Court has experience in requesting by way of a question of
the defendant, but it is not in this procedural posture; so that would only
come about if we were conducting a separate and confidential hearing.
47.
“[TRIAL COUNSEL]: Would the Court consider conducting a
separate and confidential hearing?
“THE COURT: Only if there is a direct request.
“I will say this, [trial counsel]: It appears, given the evidence that
has been presented by the People, as well as now the evidence presented by
the defense, that you have done what any reasonable and highly trained
attorney in your capacity would do with the evidence that’s been presented,
including the cross-examinations that you have done on the witnesses,
raising potential discrepancies in the evidence presented, as well as setting
up evidence by way of cross-examination of witnesses to ultimately put
your client on the witness stand to show some level of consistency, at least
by way of the examination questions that have been asked. And so I do not
know what else you could have done in representing [defendant] thus far.
“It is [defendant’s] decision to testify. If I were his attorney, I
probably would not have had him testify, but it is his decision and his alone
to make. It appears he has made it, and at this point you examined him,
direct examination, the way one would expect a highly trained, experienced
litigator to examine his client.
“[Defendant], for his part, as stated yesterday on the record outside
the presence of the jury, had a habit of answering a question initially and
then providing a nonresponsive answer subsequently, ultimately to the
objection of opposing counsel.
“He appeared to do the same thing this morning. He obviously got
out quite a bit of information that was not going toward the call of the
question, to no objection or very little objection by the examiner.
“It’s not this Court’s position to arbitrarily step in and stop it when a
witness is answering a question the way [defendant] habitually answered
questions during his examination, both direct and cross-examination, unless
the examiner asks the Court to intervene. And so consequently, [defendant]
was able to present a lot of information to this jury that was not a result of a
direct question asked and was not subject to objection by either opposing
counsel or the examining counsel for a great fair amount of time.
“With that said, I do not know what else you could have done, [trial
counsel], and I do not disagree with the trial tactic and strategy that you
have presented.
“[TRIAL COUNSEL]: Very well.
48.
“[DEFENDANT]: Your honor, with all due respect, I apologize if I
disrupted the Court during my testimony, and if it pleases the Court,
perhaps you can help me get a better understanding of—
“THE COURT: [Defendant], I do not speak directly to you.
“[DEFENDANT]: Do I talk to him about the conflict of interest
with [the prosecutor]?
“THE COURT: You can talk to [trial counsel]. He can raise
whatever issue he thinks needs to be raised if he deems it necessary.
“[DEFENDANT]: I want to talk about the conflict of interest
between she and I. That’s why we’re being argumentative in front of the
jury.
“And I was misled—I was misled about testifying. That’s why I
testified.
“You told me that I could—you told me I could introduce my—my
evidence—
“THE COURT: [Trial counsel], I’m going to treat his comments to
you as private comments, directed only to you, so that my reporter does not
take it down.
“[DEFENDANT]: Starting now?
“What about the comments I made earlier, your Honor?
“THE COURT: [Trial counsel], do you need a brief recess to
confer with your client?
“[TRIAL COUNSEL]: Very brief. [¶] … [¶]
“THE COURT: Is there anything else we need to do at this time?
“[TRIAL COUNSEL]: [Defendant] wants me to put on the record
that he would move for a mistrial because it was improper for [the
prosecutor] to prosecute this case inasmuch as she prosecuted him in the
past and during that case, in his estimation, she committed prosecutorial
misconduct, number one.
“Number two, he’s asking for a mistrial because he was misled by
me into believing that if he were to take the stand that we would be able to
present positive character evidence to counteract the implications or the
49.
evidence that are represented in the book that he wrote that [the prosecutor]
quoted from. [¶] … [¶]
“THE COURT: The motion by the defendant … involving
ineffective assistance of counsel upon [trial counsel] for failing to present
character witnesses is denied.
“The Court did express to counsel its view on recognizing that
attorneys have the final determination of trial strategies and tactics, and it’s
apparent that [trial counsel], in his discretion, determined that additional
witnesses on behalf of the defense would be fruitless and therefore decided
not to present any.
“Tangentially, this has been a discovery issue since June of 2021.
When the case was initially assigned to this courtroom, [the prosecutor] did
ask for a witness list from the defense. In early July [trial counsel]
indicated that there were a number of potential witnesses that might testify
in this case all along the lines of character witnesses, but he has to sift
through the list of names to determine which ones would be appropriate.
“I did inform counsel at that time that at some point [Evidence Code
section] 352 might be triggered as it relates to cumulativeness if character
witnesses were to testify. When confronted with approximately 20 names,
the Court ruled that perhaps four or five would be reasonable, but the Court
would listen attentively to the character witnesses’ testimony to determine
if it just became cumulative or if it was new or additional information on
behalf of the defendant. That issue never materialized, ostensibly because
of the discovery requirements and the ultimate determination made by [trial
counsel].
“There is nothing, in this Court’s view, that would suggest that [trial
counsel] has made a decision that a reasonable attorney in his position
would not have made. On that basis, I do not see anything ineffective about
that determination.” (Italics added.)
Subsequently, after the People’s closing argument, defendant again raised an
ineffective assistance of counsel claim because “he[] [was] dissatisfied with [trial
counsel’s] performance during the trial, particularly during the defense phase, that [trial
counsel] didn’t produce enough police reports, videos, or other physical or testimonial
evidence … [and] request[ed] a mistrial based on [trial counsel’s] ineffective assistance
of counsel.” The trial court denied the request because the court “placed its opinions
regarding ineffective assistance of counsel on the record previously, and it d[id] not
50.
appear to the Court that there has been a changed circumstance that would require the
Court to revisit that issue.”
On December 7, 2021, prior to sentencing, trial counsel made “a motion to be
relieved as [defendant’s] counsel on this case” due to a conflict of interest. The trial
court then relieved trial counsel of representation and IDP was appointed counsel.
On February 7, 2022, IDP counsel filed a motion for a new trial alleging numerous
errors throughout the trial. The trial court denied the motion in its entirety.
B. Applicable Law
The law related to Marsden motions is well-settled: “ ‘When a defendant seeks to
discharge his appointed counsel and substitute another attorney, and asserts inadequate
representation, the trial court must permit the defendant to explain the basis of his
contention and to relate specific instances of the attorney’s inadequate performance.
[Citation.] A defendant is entitled to relief if the record clearly shows that the first
appointed attorney is not providing adequate representation [citation] or that defendant
and counsel have become embroiled in such an irreconcilable conflict that ineffective
representation is likely to result [citations].’ ” (People v. Fierro (1991) 1 Cal.4th 173,
204.)
The trial court’s duty to hold a Marsden hearing “arises when the defendant in
some manner moves to discharge his current counsel. The mere fact that there appears to
be a difference of opinion between a defendant and his attorney over trial tactics does not
place a court under a duty to hold a Marsden hearing.” (People v. Lucky (1988)
45 Cal.3d 259, 281, fn. omitted.) Our Supreme Court has noted that “when a defendant
asks for new counsel, a trial court’s duty to undertake the Marsden inquiry ‘arises “only
when the defendant asserts directly or by implication that his counsel’s performance has
been so inadequate as to deny him his constitutional right to effective counsel.” ’ ”
(People v. Johnson (2018) 6 Cal.5th 541, 573.)
51.
C. Analysis
Defendant argues the trial court had a sua sponte duty to conduct a Marsden
hearing after his “counsel told the court [he] was dissatisfied with [trial counsel’s] advice
and performance.” However, defendant never “ ‘ “assert[ed] directly or by implication
that his counsel’s performance ha[d] been so inadequate as to deny him his constitutional
right to effective counsel.” ’ ” (People v. Johnson, supra, 6 Cal.5th at p. 573, italics
omitted.) He never filed a Marsden motion, nor did he ever indicate he wanted another
attorney to represent him. Rather, defendant’s comments to trial counsel and the trial
court represented simple frustration with trial counsel’s legal tactics, and not a desire to
obtain different counsel. (People v. Lucky, supra, 45 Cal.3d at p. 281; see People v.
Richardson (2009) 171 Cal.App.4th 479, 484‒485 [holding there was no duty to conduct
a Marsden hearing because the defendant’s postverdict, presentencing letter to the court
complained about “the adequacy of defendant’s representation at trial,” but did “not
mention a desire to obtain substitute counsel”]; see also People v. Lee (2002)
95 Cal.App.4th 772, 780 [“[m]ere grumbling” is insufficient].) This conclusion is
supported by the fact the next day defendant was asked by the trial court about his
feelings toward trial counsel and he replied, “I did speak with [trial counsel] yesterday….
[H]e did explain to me a little bit about it yesterday, his reasoning and stuff, and, I mean,
he’s been doing this 45 years. So I prayed on it, slept on it, and was, like, I’m going
see—this morning I told him I’m gonna see what happens, see where it goes.”
Defendant’s statements effectively constituted a withdrawal of any potential Marsden
claim. (See generally People v. Padilla (1995) 11 Cal.4th 891, 927.) Accordingly, the
trial court did not have a duty to conduct a Marsden hearing because defendant’s
statements were not a cumulation of prior complaints against trial counsel and was not
made in such a way as to indicate he wanted to discharge his appointed counsel prior to
the conclusion of the trial.
52.
Alternatively, defendant argues that “[e]ven if counsel’s question was not a
request for a Marsden hearing,” the trial court erred by failing to “relieve counsel to
protect [his] Sixth Amendment rights” because his trial counsel “had misadvised him
about testifying.” As our Supreme Court has made clear:
“To the extent [a] defendant’s claim is based upon an asserted
general duty on the part of the trial court to supervise appointed counsel,
any obligation that may rest upon the court to uphold a proper standard of
representation by appointed counsel [citations] is circumscribed and must
be understood in light of the countervailing duty of the court to respect the
inviolability of the attorney-client relationship and to permit the defendant
to present his or her defense in the manner deemed appropriate by counsel
in consultation with the defendant. [Citations.] Thus, the trial court’s
authority to discharge an appointed attorney for misconduct or
incompetence on its own motion is limited.” (People v. Martinez (2009)
47 Cal.4th 399, 421.)
Here, the trial court concluded that “given the evidence that has been presented by
the People, as well as now the evidence presented by the defense, that [trial counsel]
ha[s] done what any reasonable and highly trained attorney in [trial counsel’s] capacity
would do with the evidence that’s been presented” and concluded there was nothing else
that “could have been done in representing [defendant] thus far.” As it related
specifically to testifying, the trial court stated, “If I were [defendant’s] attorney, I
probably would not have had him testify, but it is his decision and his alone to make,” but
agreed that “[i]t appear[ed] he ha[d] made it, and at this point [trial counsel] examined
him, direct examination, the way one would expect a highly trained, experienced litigator
to examine his client.”
With all that being said, it appears defendant was frustrated because trial counsel
decided not to introduce certain pieces of evidence during the trial. However, it is
unclear in the record as to whether this evidence was admissible and more importantly,
the decision to not admit certain evidence is purely a tactical decision that is given great
deference by this court. (McCoy v. Louisiana (2018) 138 S.Ct. 1500, 1508 [holding that
defense counsel are responsible for tactical trial decisions such as “ ‘what arguments to
53.
pursue, what evidentiary objections to raise, and what agreements to conclude regarding
the admission of evidence’ ”]; People v. Nguyen (2015) 61 Cal.4th 1015, 1051
[“ ‘[W]here counsel’s trial tactics or strategic reasons for challenged decisions do not
appear on the record, we will not find ineffective assistance of counsel on appeal unless
there could be no conceivable reason for counsel’s acts or omissions’ ”].) Accordingly,
because “the trial court’s authority to discharge an appointed attorney for …
incompetence on its own motion is limited” (People v. Martinez, supra, 47 Cal.4th at
p. 421), we cannot say trial counsel’s tactical decisions regarding evidence and
defendant’s testimony constituted incompetence and, thus, the trial court had no duty to
discharge trial counsel in this case.31
IV. Defendant’s Constitutional Rights to a Fair Trial Were Not Violated
Defendant further contends his Sixth and Fourteenth Amendment rights to a fair
trial were violated when the trial court failed to inquire as to the reasons behind several
jurors laughing during his cross-examination. We again disagree.
A. Additional Factual Background
As we discussed in detail in Argument III, ante, at the conclusion of the
prosecutor’s cross-examination of defendant, trial counsel told the trial court he wished to
have a meeting with the court outside the presence of the jury. One of the concerns
outlined by trial counsel was he observed “three of the jurors … laughing during
[defendant’s] cross-examination, … [t]wo of the others were putting their clipboards to
cover their faces to hide the fact that they were laughing.” Nothing further was discussed
regarding the jurors’ behavior.
31 Because we conclude the trial court did not err by not conducting a Marsden
hearing nor discharging trial counsel, we need not, and do not, address defendant’s
argument that the purported errors were prejudicial.
54.
B. Applicable Law
A criminal defendant has the fundamental right to trial by impartial jurors “that
consider[] only the evidence admitted in court.” (People v. Stanley (1995) 10 Cal.4th
764, 836; see U.S. Const., 6th and 14th Amends.; Cal. Const., art. I, § 16.) A new trial
may be granted “[w]hen the jury has … been guilty of any misconduct by which a fair
and due consideration of the case has been prevented.” (§ 1181, subd. 3.) However, not
every complaint regarding a juror’s conduct warrants investigation. “[A] hearing is
required only where the court possesses information which, if proven to be true, would
constitute ‘good cause’ to doubt a juror’s ability to perform his [or her] duties and would
justify his [or her] removal from the case.” (People v. Ray (1996) 13 Cal.4th 313, 343.)
Mere speculation about possible juror misconduct does not justify further inquiry.
(People v. Bell, supra, 7 Cal.5th at p. 120.)
C. Analysis
Defendant contends the trial court deprived him of his Sixth Amendment right to
an impartial jury by failing to inquire as to the conduct of the jurors who were laughing
during his cross-examination. Although trial counsel brought up the jurors’ behavior to
the trial court, he never made any argument alleging prejudicial juror misconduct.
Therefore, “[w]e conclude … that defendant forfeited this issue by failing to seek the
juror’s excusal or otherwise object to the court’s course of action.” (People v. Holloway
(2004) 33 Cal.4th 96, 124.) “ ‘[H]ad [defendant] made the request at this time … when
there was a suggestion of misconduct on the record, the court could have formally ruled
on the matter … and cured the problem,’ if any, by excusing the juror and substituting an
alternate. [Citation.] Having expressed no desire to have the juror discharged at the time,
and indeed no concern the juror had engaged in prejudicial misconduct, defendant ‘is not
privileged to make that argument now for the first time on appeal.’ ” (Ibid.) However, as
we discuss below, this claim also fails on its merits.
55.
Specifically, as it relates to juror behavior during the trial, our Supreme Court has
stated:
“We agree with the basic premise that a jury’s failure to pay
attention to the evidence presented at trial is a form of misconduct which
will justify the granting of a new trial if shown to be prejudicial to the
losing party. [Citation.] The duty to listen carefully during the presentation
of evidence at trial is among the most elementary of a juror’s obligations.
Each juror should attempt to follow the trial proceedings and to evaluate the
strengths and weaknesses of the evidence and arguments adduced by each
side so that the jury’s ultimate determinations of the factual issues
presented to it may be based on the strongest foundation possible. Were the
rule otherwise, litigants could be deprived of the complete, thoughtful
consideration of the merits of their cases to which they are constitutionally
entitled.” (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411 (Hasson).)
In Hasson, affidavits stated that some jurors had been reading novels and doing
crossword puzzles during the evidentiary portion of the case. (Hasson, supra, 32 Cal.3d
at p. 410.) Hasson identified several factors a court should consider in deciding whether
the presumption of prejudice has been rebutted: “the strength of the evidence that
misconduct occurred, the nature and seriousness of the misconduct, and the probability
that actual prejudice may have ensued.” (Id. at p. 417.) The court concluded the jurors
had engaged in “essentially neutral, albeit distracting, activities at unspecified times
during the presentation of evidence,” but that the misconduct was not “ ‘of such a
character as is likely to have influenced the verdict improperly.’ ” (Id. at pp. 417‒418.)
Here, the only evidence in the record demonstrating any potential juror
misconduct is a brief statement made by trial counsel during the course of a lengthy,
unrelated argument. Other than this one statement, trial counsel never again raised the
issue. Further, after IDP counsel took over the case, he filed a motion for a new trial
alleging a multitude of issues, but never once mentioned any juror misconduct in his
moving papers or during argument. Trial counsel’s one brief statement does not
“constitute ‘good cause’ to doubt [the] juror[s’] ability to perform his [or her] duties
[that] would justify [their] removal from the case.” (People v. Ray, supra, 13 Cal.4th at
56.
p. 343.) Therefore, no hearing was required. However, even if we concluded a
presumption of prejudice existed, “the strength of the evidence that misconduct occurred
… and the probability that actual prejudice may have ensued” is lacking. (Hasson, supra,
32 Cal.3d at p. 417.)
V. The Trial Court Did Not Err By Allowing the Prosecutor to Impeach
Defendant With His Self-Published Book
Finally, defendant contends the trial court erred by permitting the prosecutor to
impeach him with portions of his self-published book, Loc Tales: The True Story of a
California Gangsta. We again disagree.
A. Additional Factual Background
In her motion in limine, the prosecutor moved to “impeach [] defendant with
several portions of his self-authored book, ‘Loc Tales: The True Story of a California
Gangsta.’ ” Specifically, she argued the following conduct mentioned in the book
involved moral turpitude and should be allowed for impeachment: (1) attempted murder
(including robbery and domestic violence); (2) drug sales; (3) active participation in a
criminal street gang; (4) manufacturing weapons in prison; and (5) assault on an inmate
in prison. The trial court, the prosecutor, and trial counsel had the following relevant
lengthy exchange regarding this evidence:
“THE COURT: [Prosecutor], do you have any comments regarding
excerpts from the book Loc Tales: The True Story of a California Gangsta?
“This begins on page 16, line five, through page 20, line 21.
“[PROSECUTOR]: Just, Judge, for foundation, I think I can easily
establish it. He has author Eric Nichols, published by Eric Nichols
Publishing, several—I don’t know, about 20 pictures of him in the middle
of himself in and out of prison.
“He also wrote my boss … a letter from jail last fall where he
encourages her to purchase and read his book.
“So I think that certainly foundation-wise we’re there. [¶] … [¶]
“THE COURT: Thank you.
57.
“[Trial counsel], do you have any response?
“[TRIAL COUNSEL]: Yeah. There’s no quarrel about foundation.
Everything that [the prosecutor] says is accurate. I have no quarrel with
that.
“It was—I believe our discussion a month ago was my perspective is
he wrote it—and she’s right, he’s proud of the publication. He wrote it. He
has to live with it. [¶] … [¶] … According to [defendant], the book isn’t
100-percent factually true.
“To be honest, having read the book, I think there’s a lot of puffing
in the book, but the problem is that if he said it, it’s going to be incumbent
on him to refute it if he’s challenged on it.
“And without beating around the bush, I mean, if there are
homicides that are alluded to in that book and he’s subject to prosecution
on those homicides because there’s no statute of limitations, then I think he
probably has Fifth Amendment protections from questioning about those
homicides. I can’t think of anything else in there that’s not barred by the
statute of limitations.
“But that was the one source of concern for me. If he takes the
witness stand, there’s no question that he said it, he’s going to have to own
it, and if part of it’s fanciful and part of it’s factual, he’d have to explain
that to the jury and explain to them why part of it’s true and the part that
stings the most is not true, which I think would be a difficult portion of his
testimony.
“But that’s my only legitimate concern is—with the rest of the book,
he’s stuck with it if he testifies. [¶] … [¶]
“[THE COURT:] [Prosecutor], one final area of inquiry involving
excerpts from the book.
“The excerpts that you included in your motion, is it your opinion
that these are actual events that occurred or are they fantastical and
grandiose in nature?
“[PROSECUTOR]: I think they’re factual descriptions of what
occurred, your Honor.
“THE COURT: And does the book outline any particular dates
from when these incidents occurred, [prosecutor]?
58.
“[PROSECUTOR]: No, Judge, just in the prologue, [defendant]
does say, ‘I couldn’t share everything because some things have no statute
of limitations.’ So despite knowing that, he still decided to write and
publish this.
“He begins the book by talking about growing up on the west side
and talking about crimes from the ‘80s, but there’s no other description on
dates, probably because he knows there’s no statute of limitations on things
like murder, and he wrote this, though, in 2016 when he was incarcerated
for his [Vehicle Code section] 2800, and towards the end of the book it
seems as if he is talking about things that happened during his
incarceration; so I can only gather that the earlier parts of the book were
years before.
“THE COURT: [Prosecutor], regarding the excerpts that you have
requested permission to introduce for credibility purposes, in your opinion,
do any of those excerpts that describe moral turpitude conduct, such as
assaults on an inmate in prison, drug sales, manufacturing weapons in
prison, do any of those possess a statute of limitations issue?
“[PROSECUTOR]: Well, Judge, I don’t believe he would have the
right to take the Fifth, if he testifies, on anything. You either testify and are
available for all questions or you can’t. I don’t think you can pick and
choose as to when you take the Fifth Amendment.
“THE COURT: So do they not have a Fifth Amendment issue—I
mean, a statute of limitations issue, in your mind?
“[PROSECUTOR]: I think depending—I think depending on when
they were, they potentially could, but, I mean, I think it would be fair to say
he wrote the book in 2016 and those are typically, what, three to five years
for statute of limitations; so I think they’re out of that realm given they
happened before his incarceration in 2016. [¶] … [¶]
“THE COURT: As to the book entitled Loc Tales: The True Story
of a California Gangsta, in considering the passages that have been
requested by the People, the Court has thought about the impact this
information might have on an individual’s credibility, at least from a juror’s
perspective, and how they would treat it as impeachment material.
“This information would be introduced not for the truth of the matter
asserted, but rather as information to discern, with reasonable inference, a
witness’s ability to be honest and truthful or inability to be honest and
truthful; so for those credibility purposes, the Court has considered the
particular passages that have been requested from the book.
59.
“Firstly, foundation is always necessary, and the Court does accept
the representations by counsel that foundation would be provided through
the book itself, including the name of the author on the book, in addition to
the photographs contained within the book, to authenticate that it was, in
fact, the defendant who wrote the contents within that book.
“Under [section] 1220 of the Evidence Code, it does allow an
opposing party to introduce the defendant’s statements. It is usually
categorized as party admissions and so forth, but it is statements of the
defendant or of the opposing party.
“For foundational purposes, assuming that it can be properly laid
that the defendant is the individual who wrote that book, then there would
be a viable hearsay exception for purposes of its introduction.
“Based on the representations previously, the introduction of such
excerpts from the book, if not the book itself, are being introduced for the
sole purpose of testing the defendant’s veracity or credibility if he chooses
to testify.
“Since both counsel understand that the statute of limitations very
well might be an issue as to some of these excerpts, if not all of them, and,
for the most part, both counsel are accepting what has been written in the
book as factual and not necessarily fantastical, although there may be some
grandiosity and so forth contained within the book, the Court is considering
it with those thoughts in mind only as it relates to the eventual examination
of the defendant.
“Attempted murder is one of those crimes that does not have a
statute of limitations, just like murder, and on that basis this Court believes
that the defendant would have a Fifth Amendment right not to answer any
questions along that issue.
“The other excerpts that are being requested to be introduced by the
prosecution include drug sales, active participation in a criminal street
gang, manufacturing weapons in prison, as well as assault on an inmate in
prison. Given what’s been presented during the course of this evidentiary
hearing, it is apparent to this Court that at least a reasonable inference can
be drawn that the statute of limitations would not apply to those
circumstances, which is important when determining what questions, if any,
could be asked of the defendant.
“Firstly, for credibility purposes, the Court does find that the
excerpts that are being requested by the People do fall under the category
contained in Evidence Code Section 780, which deals directly with the
credibility of witnesses testifying, and on that basis the excerpts are
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relevant to test the defendant’s credibility, assuming the foundation as
previously described is satisfied.
“In considering all of the areas that the People seek to introduce
while going over the book and trying to limit themselves to particular
subject matter, the Court is going to exercise its discretion and find under
[Evidence Code section] 352 that the following areas are relevant, that their
probative value certainly outweighs any prejudicial effect, and therefore are
admissible.
“The People can introduce the attempted murder passages found on
page—beginning on page 16, under the heading Attempted Murder,
including robbery and domestic violence. Page 18, the passage involving
drug sales. Page 19, the passages involving manufacturing weapons in
prison. And on page 20, the passage under assault on an inmate in prison.
Under [Evidence Code section] 352 the Court is going to allow the
introduction of this material for credibility purposes.
“In its discretion, however, the Court is going to exclude any
reference to active participation in a criminal street gang, specifically
page 163.
“The Court, however, is not going to exclude reference to the back
cover as it might be necessary for foundational purposes.
“The admissibility of these portions certainly can be done on cross-
examination or even direct examination of the defendant while he is
testifying.
“The Court is going to preclude any questions asked of the defendant
involving, however, the attempted murder, including robbery and domestic
violence, for the Fifth Amendment reasons that the Court has stated
previously.
“Counsel can certainly question the defendant about the drug sales,
the manufacturing weapons in prison, the assault on an inmate in prison,
but not the attempted murder. I will not order that the defendant answer
questions involving the attempted murder, if he invokes a Fifth Amendment
right, because of the statute of limitations still being applicable, which leads
to the Court’s inquiry.
“[Prosecutor], I know that you are an experienced litigator and you
certainly know how to examine witnesses, both direct and cross-
examination. The Court is giving you permission to lay the proper
foundation for these excerpts or for the book in its entirety, and I’m
confident, if the defendant testifies, that is something you are going to do.
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“I’m also going to allow you to question the defendant, if he
testifies, on those areas other than the attempted murder.” (Italics added.)
Later on, trial counsel asked for clarification that the trial court’s limitation only
applied to the prosecutor and “if the defense chooses to ask [defendant] questions about
the attempted murders and he answers them, then essentially that limitation that I have
placed on [the prosecutor] would at that point be lifted.” Subsequently, defendant
testified and the prosecutor impeached him with the above referenced portions from his
book.
B. Defendant was Properly Impeached with Portions from his Book
First, defendant argues the trial court erred when it allowed the prosecutor to
impeach defendant with portions from his book because the “events described in the book
were not admissible for impeachment” (unnecessary capitalization omitted) and that the
“material should have been excluded under [Evidence Code] section 352” (unnecessary
capitalization omitted).
1. Applicable Law
A witness may be impeached with prior convictions involving “moral turpitude,”
subject to the trial court’s exercise of discretion under Evidence Code section 352 to
exclude evidence of prior convictions if the prejudicial impact of the evidence does not
outweigh its probative value. (People v. Clark (2011) 52 Cal.4th 856, 931‒933; People
v. Castro (1985) 38 Cal.3d 301, 306.) Moral turpitude is defined as a “ ‘general readiness
to evil,’ ” from which a readiness to lie can be inferred. (Castro, at p. 315.)
“The court in its discretion may exclude evidence if its probative value is
substantially outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of confusing the
issues, or of misleading the jury.” (Evid. Code, § 352.) “ ‘[A]ll evidence which tends to
prove guilt is prejudicial or damaging to the defendant’s case. The stronger the evidence,
the more it is “prejudicial.” The “prejudice” referred to in Evidence Code section 352
applies to evidence which uniquely tends to evoke an emotional bias against the
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defendant as an individual and which has very little effect on the issues. In applying
section 352, “prejudicial” is not synonymous with “damaging.” ’ ” (People v. Karis
(1988) 46 Cal.3d 612, 638.)
In exercising its discretion under Evidence Code section 352 when determining
whether to admit a prior conviction for impeachment purposes, the trial court should
consider “ ‘(1) whether the prior conviction reflects adversely on an individual’s honesty
or veracity; (2) the nearness or remoteness in time of a prior conviction; (3) whether the
prior conviction is for the same or substantially similar conduct to the charged offense;
and (4) what the effect will be if the defendant does not testify out of fear of being
prejudiced because of impeachment by prior convictions.’ ” (People v. Green (1995)
34 Cal.App.4th 165, 182, quoting People v. Muldrow (1988) 202 Cal.App.3d 636, 644.)
The trial court’s discretion to admit or exclude impeachment evidence is broad, and a
reviewing court ordinarily will uphold the trial court’s exercise of that discretion.
(People v. Collins (1986) 42 Cal.3d 378, 389.) We will not disturb the trial court’s ruling
absent a showing the court “ ‘ “exercised its discretion in an arbitrary, capricious, or
patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (Morales,
supra, 10 Cal.5th at p. 97.)
2. Analysis
Here, defendant argues he was improperly impeached with portions of his book
because much of his writing “was puffing” and that “the prosecutor made no attempt to
show the events she sought to use for impeachment were true and therefore met the basic
relevance requirement.” However, the prosecutor told the trial court, she believed the
book involved “factual descriptions of what occurred,” and trial counsel himself
conceded that “there’s no question that he said it, he’s going to have to own it, and if part
of it’s fanciful and part of it’s factual, he’d have to explain that to the jury and explain to
them why part of it’s true and the part that stings the most is not true.” Further, defendant
corroborated the book’s accuracy when he testified he made knives in prison, and that he
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“unloaded [a] 30-round clip into [a] truck,” both of which were mentioned in the book.
With all that being said, defendant argues because “[t]here was no showing, however,
that the most lurid of the sections, about stabbing a man in the face and brutalizing a
former girlfriend were true,” it was admissible for impeachment. First, the fact
defendant, himself, admitted the accuracy of portions of his own book established a
likelihood the other portions of the book were true as well. (See People v. Bowley (1963)
59 Cal.2d 855, 858‒859 [holding that although the victim “authenticated only portions of
the film,” this was a “legally sufficient foundation for its admission into evidence”].)
Second, all the crimes listed by the prosecutor in her motions in limine were arguably
crimes involving moral turpitude, and it appears in the record that trial counsel himself
conceded the fact the crimes mentioned in the prosecutor’s motion were all crimes
involving moral turpitude. The record indicates the trial court properly weighed
defendant’s prior offenses and, thus, the trial court’s ruling was not arbitrary, and
defendant points to nothing in the record to suggest a manifest injustice arose from its
decision. (Morales, supra, 10 Cal.5th at p. 97.)
Defendant further argues the evidence should have been excluded under Evidence
Code section 352 because “the conduct was more prejudicial than probative.” We find
People v. Ortiz (2003) 109 Cal.App.4th 104 (Ortiz) instructive. The Ortiz court noted
minimal potential for prejudice existed because evidence of the prior Evidence Code
section 1101, subdivision (b) prior acts were “ ‘no stronger and no more inflammatory
than the testimony concerning the charged offenses.’ ” (Id. at p. 118.) Moreover, the
court concluded the trial court properly conducted an Evidence Code section 352 analysis
because it “neither granted nor rejected admission of the proffered evidence in toto,” but
“[i]nstead, [the trial court] ruled some of the People’s evidence admissible and some
inadmissible.” (Ortiz, at p. 117.) Finally, the trial court instructed the jury it could only
consider evidence of this prior misconduct for the limited purpose of evaluating the
defendant’s intent. (Id. at p. 118.)
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Here, the trial court conducted an Evidence Code section 352 analysis and
admitted the impeachment evidence because “the excerpts that [were] being requested by
the People do fall under the category contained in Evidence Code [s]ection 780, which
deals directly with the credibility of witnesses testifying, and on that basis the excerpts
are relevant to test the defendant’s credibility, assuming the foundation as previously
described is satisfied.” With that being said, the trial court “neither granted nor rejected
admission of the proffered evidence in toto” (Ortiz, supra, 109 Cal.App.4th at p. 117),
because it “preclude[d] any questions asked of the defendant involving, however, the
attempted murder, including robbery and domestic violence” and “exclude[d] any
reference to [his] active participation in a criminal street gang.” The likelihood of
prejudice was low because the underlying facts of this case involved a double murder;
whereas, the prior incidents involved far less serious crimes. (See id. at p. 118.) Further,
the trial court instructed the jury that “certain evidence was admitted for a limited
purpose” and that “[u]nless the evidence proves the defendant guilty beyond a reasonable
doubt, he is entitled to an acquittal and you must find him not guilty.” Therefore, the trial
court did not abuse its discretion because it properly conducted an Evidence Code
section 352 analysis.
C. The Applicability of Evidence Code Section 352.2
Second, defendant contends that newly enacted Evidence Code section 352.2
applies retroactively to this case and that the use of portions of his book against him “can
be prejudicial because of the impact on the jury’s evaluation of the case … [and] the
injection of racial bias into the case.”
1. Applicable Law
Effective January 1, 2023, newly enacted Evidence Code section 352.2 creates
specific rules that the trial court must follow in deciding whether to admit evidence of “a
form of creative expression” in a criminal trial. Evidence Code section 352.2 states in
full:
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“(a) In any criminal proceeding where a party seeks to admit as
evidence a form of creative expression, the court, while balancing the
probative value of that evidence against the substantial danger of undue
prejudice under [Evidence Code] [s]ection 352, shall consider, in addition
to the factors listed in [s]ection 352, that: (1) the probative value of such
expression for its literal truth or as a truthful narrative is minimal unless
that expression is created near in time to the charged crime or crimes, bears
a sufficient level of similarity to the charged crime or crimes, or includes
factual detail not otherwise publicly available; and (2) undue prejudice
includes, but is not limited to, the possibility that the trier of fact will, in
violation of [Evidence Code] [s]ection 1101, treat the expression as
evidence of the defendant’s propensity for violence or general criminal
disposition as well as the possibility that the evidence will explicitly or
implicitly inject racial bias into the proceedings.
“(b) If proffered and relevant to the issues in this case, the court
shall consider the following as well as any additional relevant evidence
offered by either party:
“(1) Credible testimony on the genre of creative expression
as to the social or cultural context, rules, conventions, and artistic
techniques of the expression.
“(2) Experimental or social science research demonstrating
that the introduction of a particular type of expression explicitly or
implicitly introduces racial bias into the proceedings.
“(3) Evidence to rebut such research or testimony.
“(c) For purposes of this section, ‘creative expression’ means the
expression or application of creativity or imagination in the production or
arrangement of forms, sounds, words, movements, or symbols, including,
but not limited to, music, dance, performance art, visual art, poetry,
literature, film, and other such objects or media.
“(d) The question of the admissibility of a form of creative
expression shall be heard in limine and determined by the court, outside the
presence and hearing of the jury, pursuant to [Evidence Code] Section 402.
The court shall state on the record its ruling and its reasons therefor.”
(Evid. Code, § 352.2.)
As People v. Ramos (2023) 90 Cal.App.5th 578 (Ramos) stated, “In enacting the
provision, the Legislature made the following findings and declarations, showing that a
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particular concern was the possible unfair prejudice stemming from the admission of rap
lyrics:
‘(a) Existing precedent allows artists’ creative expression to be
admitted as evidence in criminal proceedings without a sufficiently robust
inquiry into whether such evidence introduces bias or prejudice into the
proceedings. In particular, a substantial body of research shows a
significant risk of unfair prejudice when rap lyrics are introduced into
evidence. [Citations.]
‘(b) It is the intent of this Legislature to provide a framework by
which courts can ensure that the use of an accused person’s creative
expression will not be used to introduce stereotypes or activate bias against
the defendant, nor as character or propensity evidence; and to recognize
that the use of rap lyrics and other creative expression as circumstantial
evidence of motive or intent is not a sufficient justification to overcome
substantial evidence that the introduction of rap lyrics creates a substantial
risk of unfair prejudice.’ (Stats. 2022, ch. 973, § 1.)” (Ramos, supra,
90 Cal.App.5th at pp. 591‒592.)
As of today, the Courts of Appeal are split as to whether Evidence Code
section 352.2 applies retroactively. (Ramos, supra, 90 Cal.App.5th at p. 596 [Evid. Code,
§ 352.2 does not apply retroactively]; People v. Venable (2023) 88 Cal.App.5th 445, 448
[Evid. Code, § 352.2 does apply retroactively].) Even assuming Evidence Code section
352.2 does apply retroactively, reversal is not required because any error in admitting
portions of defendant’s book was harmless under any standard of review.
2. Analysis
Here, the prosecutor’s reference to portions of defendant’s book were relatively
unimportant as it related to the entirety of the People’s case. (Cf. People v. Venable,
supra, 88 Cal.App.5th at pp. 455‒458 [rap video implicating the defendant in charged
offenses was reversible error because it was central to the prosecution’s case].)
Additionally, in assessing possible prejudice, it is also significant the references to the
book were not used to establish defendant’s propensity to commit criminal acts or to
prove he was guilty of the underlying charges, but rather to simply impeach him with
prior crimes involving moral turpitude. Although defendant fears that references to the
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book created the potential for racial stereotyping that Evidence Code section 352.2 is
intended to guard against, the jury was instructed not to let the issue of race influence its
decision-making process (CALCRIM No. 200) and there is nothing in the record to rebut
the presumption the jury understood and followed this admonition. (See generally
People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17 [a foundational presumption
underlying our constitutional system of trial by jury is that jurors are capable of
understanding and applying all the instructions they are given].)
DISPOSITION
The judgment is affirmed.
DE SANTOS, J.
WE CONCUR:
HILL, P. J.
SMITH, J.
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