People v. Washington CA2/2 ( 2024 )

Filed 10/22/24 P. v. Washington CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B330275
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA157897)
v.
JUSTIN WASHINGTON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Michelle M. Ahnn and John J. Lonergan,
Jr., Judges. Affirmed.
John Steinberg, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________
In an information filed by the Los Angeles County District
Attorney’s Office, defendant and appellant Justin Washington
was charged with first degree willful, deliberate, and
premeditated murder. (Pen. Code, §§ 187, subd. (a), 189.)1 It was
further alleged that defendant personally used a firearm
(§ 12022.5, subd. (a)) and had incurred two prior serious or
violent felony “strike” convictions (§§ 667, subd. (d), 1170.12,
subd. (b)).
Defendant’s initial trial resulted in a mistrial because the
jury deadlocked. Following retrial, the jury found defendant
guilty as charged and found the firearm allegation true. In a
bifurcated proceeding, the trial court found the two prior strike
allegations true. Defendant was sentenced to a term of 75 years
to life plus three years in state prison.
Defendant timely filed a notice of appeal.
We affirm.
FACTUAL BACKGROUND
I. Prosecution evidence
A. The November 4, 2020, murder
On November 4, 2020, at about 5:40 p.m., Los Angeles
Police Department (LAPD) officers, including Officer John Byun,
drove to a location near Figueroa Street and 109th Street in Los
Angeles in response to a 911 call reporting a shooting.
Bystanders directed Officer Byun to the victim, Bryan Castle
(Castle), who was lying facedown on the sidewalk and had
several gunshot wounds. Castle died as a result of the gunshot
wounds.
Police recovered a fired bullet and two nine-millimeter
“GFL” brand Luger bullet casings from the crime scene.
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
B. Video of the murder
Officers obtained surveillance video of the shooting. The
video was played at trial.
The video showed Castle walking through an auto
mechanic’s shop to the intersection of 109th and Figueroa. A
white sedan with a moonroof stopped near Castle. Someone was
sitting in the front passenger seat. A person later identified as
defendant exited the rear passenger side, walked around to the
driver’s side, and faced Castle. Defendant wore a dark sweater
with a white stripe on the sleeve. Defendant walked back to the
passenger side of the vehicle, turned and faced Castle, and fired a
weapon. Castle made his way back to the sidewalk and
collapsed.
C. Video of the day prior to the murder (Nov. 3, 2020)
On November 12, 2020, LAPD Detectives Issac Fernandez
and Peter McCoy went to an auto body shop near the crime scene
to download surveillance video showing events that occurred on
November 3, 2020, the day before the shooting. The police had
received information that the suspected shooter may have been at
the crime scene on that date.
The video showed a white Mercedes pull into the auto shop.
A Hispanic woman later identified as Daisy Serrano (Serrano)
exited the front passenger seat. A Black man later identified as
defendant exited the rear passenger seat. Defendant, who has
numerous tattoos, wore a white T-shirt with a Nike “Just do it”
logo and a black LA Dodgers hat. The driver stayed in the
Mercedes. Defendant and Serrano walked into the business that
Castle worked for and then returned to the car.
Detective Francisco (Frank) Zaragoza recognized the
woman on the video as Serrano. He was familiar with her from
an unrelated investigation he handled in September 2020.
3
Detective Zaragoza obtained information from Serrano’s social
media accounts.
From the car’s license plate, the police determined the
Mercedes was registered to Rudy Bracamontes (Bracamontes),
Serrano’s brother.
D. November 24, 2020, arrest of Serrano, who had the
murder weapon
On November 24, 2020, around 2:00 a.m., Los Angeles
County deputy sheriffs contacted a vehicle at a parking lot near
El Segundo Boulevard and Figueroa, about a mile and a half from
the scene of Castle’s murder. Serrano was the front seat
passenger. The deputies recovered an operable firearm from the
floorboard behind the driver’s seat. They also recovered a
magazine for the firearm, which was loaded with bullets.
Serrano was arrested for possession of the firearm.2 She
provided her telephone number when she was booked.
Testing later established that Serrano’s gun was used in
Castle’s murder.
E. December 5, 2020, arrest of defendant and searches of
his home3
On December 5, 2020, Torrance police officers saw
defendant leave his stepmother’s home on 139th Street in
Gardena. The police arrested defendant, who was in the front
passenger seat of a car. He was wearing a black LA Dodgers
baseball hat. The police recovered defendant’s cell phone.
2 She later was convicted for possession of it.
3 Torrance police officers arrested defendant and searched
his home as part of a separate investigation; he was the primary
suspect in a series of robberies. Evidence of defendant’s
involvement in those robberies was not admitted in this retrial.
4
Torrance police officers searched the 139th Street address,
which included a converted garage with two bedrooms, a kitchen,
a bathroom, and a large living space, as well as a main residence
with three bedrooms. Defendant’s stepmother, Augusta
Washington (Augusta),4 directed the police officers to the
bedroom in the main residence in which defendant was staying.
In that bedroom, the police photographed a black Puma sweater
with white stripes.
Defendant’s sister, Tiffany Washington (Tiffany), lived in
the converted garage with her children. From a bedroom in the
converted garage, the police recovered paperwork addressed to
defendant that was on top of a dresser. A drawer in that dresser
contained five loose bullets and 17 bullets inside of a cloth bag;
all of the bullets were nine-millimeter. One of the loose bullets
was a “GFL” brand, the same brand as casings recovered from
the crime scene and the bullets found in Serrano’s gun.
The police also recovered a Smith & Wesson .45 caliber
semiautomatic gun from the living room of the converted garage.
The gun’s magazine contained five .45 caliber bullets.
On March 4, 2021, LAPD officers conducted a second
search of defendant’s home. They recovered a T-shirt with a Nike
“Just do it” logo similar to the shirt that defendant wore the day
before the shooting as shown on video. The police also recovered
a black Puma sweater with a white stripe on the sleeve, which
was similar to what the shooter wore as shown on video.
F. Three recorded jail calls between defendant and Serrano
Defendant, who was in custody, had several calls with
Serrano, which were recorded. Based upon what they called each
4 Because defendant and his mother and sister share the
same last name, we refer to them by their first names. No
disrespect is intended.
5
other during the calls, it appeared that they were in a
relationship. Along with two other recorded calls, their
January 8, 2021, phone call was played at the retrial. Detective
Zaragoza heard defendant tell Serrano during that call,
“‘Remember when I was bustin’ and your brother damn near ran
me over.’” Detective Zaragoza understood defendant to mean
that he was shooting because the phrase “‘bustin’ caps’” is “street
talk of somebody saying shooting.”
G. Information recovered from defendant’s cell phone
On November 5, 2020, several internet searches were made
on defendant’s phone regarding a shooting in the area of the 110
Freeway and Figueroa, including “‘shooting on 110 and Figueroa
Street on October 4th’” and “‘man shot to death at Figueroa auto
shop on September 4th.’” The earliest search was made on
November 5, 2020, at 1:38 a.m.
In late November 2020, defendant exchanged text messages
with multiple people in an effort to purchase a gun because he no
longer had his.
H. Mapping of locations of defendant, Serrano, and
Bracamontes’s cell phones
FBI Agent Jeff Bennett (Bennett), the prosecution’s cell
phone expert, testified that cell phone site analysis showed that
defendant’s phone was near the crime scene on November 4,
2020, at 5:32 p.m. and stayed in that area for about 20 minutes.
Bracamontes’s cell phone was near the crime scene between
4:44 p.m. and 4:51 p.m. Serrano’s cell phone was in the area of
the crime scene from 5:39 p.m. to 5:50 p.m. Both of their phones
were near defendant’s home minutes after the shooting.
II. Defense evidence
Augusta owned the home on West 139th Street. In
November and December 2020, defendant lived in one of the
bedrooms inside the main residence. Tiffany and Tiffany’s
6
children lived in the back house. The main residence and back
house had different keys.
Robert Aguero (Aguero), the defense cell phone expert,
disagreed with the prosecution’s cell phone expert about the
accuracy of AT&T data sessions for cell phone mapping purposes.
He opined that using data sessions and cell phone towers to map
the location of a phone was not reliable. But, he agreed with the
rest of Bennett’s testimony.
III. Rebuttal
Among other evidence offered, Bennett rebutted Aguero’s
testimony.
DISCUSSION
I. Exclusion of evidence relating to an alleged Perkins5 operation
with Serrano
Defendant argues that the trial court committed at least
two errors relating to an alleged Perkins operation with Serrano.
According to defendant, the trial court erred by (1) making a
preliminary determination that no Perkins operation actually
occurred, and then (2) excluding evidence to impeach Detectives
Zaragoza and McCoy with their inconsistent testimonies
concerning that alleged Perkins operation.
A. Relevant proceedings
1. Detective Zaragoza’s testimony at the
August 19, 2021, preliminary hearing about a Perkins operation
with Serrano and ensuing discovery motion
On August 19, 2021, in Los Angeles County Superior Court
case number TA153890, a preliminary hearing was held. At that
time, defendant was charged with the murder of Castle, and
Serrano and defendant were both charged with conspiracy to
5 Illinois v. Perkins (1990) 496 U.S. 292 (Perkins).
7
murder Castle. Detective Zaragoza testified that a Perkins
operation had been conducted with Serrano.6
On November 8, 2021, defense counsel filed a motion
asking for discovery regarding the Perkins operation. In support,
defense cited to Detective Zaragoza’s testimony as well as a
“‘Chrono’” or “Chronological Record” entry that mentioned a
Perkins operation. The prosecution opposed the motion on the
grounds that “[n]o such item exists, as there was no Perkins
[o]peration of Daisy Serrano.” According to defendant’s opening
brief, there was a hearing on this motion on November 21, 2021,
but there is no indication as to how the trial court ruled on this
issue.
2. Detective McCoy’s testimony at the August 5, 2022,
preliminary hearing about a Perkins operation with Serrano and
ensuing discovery motion
On July 22, 2022, the prosecution announced that they
were unable to proceed against defendant and Serrano. The case
was refiled that same day as Los Angeles Superior Court case
number TA157897.
On August 5, 2022, a preliminary hearing7 was held.
Detective McCoy testified in detail about a Perkins operation
involving Serrano.
6 The appellate record does not include a transcript of the
August 19, 2021, preliminary hearing, but relevant testimony
from that hearing is summarized in other parts of the record. For
example, during defendant’s initial trial, Detective Zaragoza
testified that he had given brief prior testimony about a Perkins
operation conducted with Serrano at an August 19, 2021, hearing
(the preliminary hearing). He also testified that his preliminary
hearing was mistaken—no Perkins operation had in fact been
conducted with Serrano.
8
On August 30, 2022, defense counsel filed a motion for
discovery of the Perkins operation. The prosecution responded,
reiterating that no Perkins operation had been conducted with
Serrano. Apparently, Detectives Zaragoza and McCoy had
confused Serrano with another woman who had been arrested at
around the same time, whose name—Zambrano—was similar to
Serrano.
3. September 2022 hearing at which both detectives
testify that there was no Perkins operation with Serrano
On September 30, 2022, the initial trial court (Hon.
Connie R. Quiñones) held a hearing, at defendant’s request, “to
preserve the record” regarding whether a Perkins operation with
Serrano had been conducted. Detective Zaragoza testified that
after the August 2021 preliminary hearing, he realized that there
had been no Perkins operation conducted with Serrano. Detective
Zaragoza explained that he had “mixed up a name [Serrano’s]
with another unrelated arrest of a female with a similar last
name.” That woman’s last name was “Zambrano,” and her
Perkins operation took place about two months after Serrano’s
arrest in March 2021.
There was no Perkins operation conducted on the day
Serrano was arrested. While a Perkins operation with Serrano
had been set for that day, it did not go forward because there was
a “conflict regarding the Perkins agent and Ms. Serrano.”
Detective Zaragoza wrote an entry in the chronological record for
this case indicating that a Perkins operation was set for March 4,
2021, but he did not update it to reflect that the operation did not
actually occur. Detective Zaragoza also did not write any sort of
supplemental report to note that no Perkins operation had been
conducted with Serrano.
7 The preliminary hearing judge found insufficient evidence
of the conspiracy charge and dismissed the case against Serrano.
9
Detective McCoy testified that he was in court during the
August 2021 preliminary hearing; he sat with the prosecutor
when Detective Zaragoza testified that day. He did not attempt
to correct Detective Zaragoza’s testimony that a Perkins
operation had taken place with Serrano. Also at that hearing,
Detective McCoy did not tell the prosecutor that a Perkins
operation had not taken place.
Detective McCoy acknowledged that at the August 2022
preliminary hearing he testified in detail about a Perkins
operation with Serrano. But that Perkins operation did not occur.
Like Detective Zaragoza, Detective McCoy had confused Serrano
with Zambrano.
At the end of the hearing, the trial court stated: “We had
the hearing conducted to preserve the record. You [counsel] have
your record.”
4. Initial trial: motions, hearings, and testimony
regarding the alleged Perkins operation
At the first trial (Hon. Michelle M. Ahnn),8 there were
several motions and hearings regarding the admissibility of the
detectives’ preliminary hearing testimonies that a Perkins
operation had been conducted with Serrano, as well as their later
admissions no such operation occurred. The trial court ruled that
the parties could only ask Detective Zaragoza certain questions
about the topic for the limited purpose of assessing Detective
Zaragoza’s credibility.9
8 The same prosecutor handled both the initial trial and the
retrial.
9 The permitted questions were: (1) whether Detective
Zaragoza testified at a prior hearing; (2) whether he was under
oath at that hearing; (3) whether he was asked “‘[W]as a Perkins
operation done’”; (4) questions eliciting the definition of a Perkins
operation; (5) whether he testified at the prior hearing that a
10
Detective Zaragoza testified that no Perkins operation had
been conducted with Serrano. He acknowledged at an August 19,
2021 hearing, he had testified that there was a Perkins operation
with Serrano, and that at a September 2022 hearing, he admitted
that his August 2021 testimony was mistaken.
The trial court denied defendant’s request to call Detective
McCoy to testify regarding the alleged Perkins operation,
reasoning that because Detective McCoy was not a witness at
trial, his credibility was not at issue.
5. Rulings in the retrial
As is relevant to the issues on appeal, the trial court made
two related rulings: (1) the defense could not ask the detectives
questions in front of the jury whether a Perkins operation had
been conducted with Serrano because the defense had not made a
sufficient offer of proof that the operation actually had been
conducted; and (2) the detectives’ prior testimonies (at both
preliminary hearings and at the September 2022 hearing) were
inadmissible because they were irrelevant and because there was
no evidence that a Perkins operation had been conducted with
Serrano. But, if evidence that a Perkins operation had actually
been conducted “c[a]me to light,” it would address that issue at
that time.
Perkins operation was conducted in this case, with the answer as
“yes”; (6) whether a Perkins operation was actually done, with the
answer as “no”; (7) questions about the specific questions and
answers from the prior hearing; and (8) questions about Detective
Zaragoza’s later admission that his prior testimony was
mistaken.
11
B. Trial court’s preliminary determination that no Perkins
operation occurred
We agree with the People that the trial court did not err in
finding that there was no evidence of a Perkins operation with
Serrano.
“Sometimes the relevance of evidence depends on the
existence of a preliminary fact. [Citations.]” (People v. Lucas
(1995) 12 Cal.4th 415, 466; Evid. Code, § 403, subd. (a).) A trial
court’s role in deciding a preliminary fact question is merely to
determine whether there is evidence sufficient to permit a jury to
decide the question. (People v. Brooks (2017) 3 Cal.5th 1, 47;
Lucas, supra, 12 Cal.4th at p. 467; People v. Cottone (2013)
57 Cal.4th 269, 284 [trial court performs a threshold screening
function to shield jury from evidence so factually weak as to
undermine its relevance].) We review a court’s finding whether
the foundational evidence is sufficiently substantial for abuse of
discretion. (People v. Ng (2022) 13 Cal.5th 448, 548; Lucas,
supra, 12 Cal.4th at p. 466.)
Here, the court acted well within its discretion when it
made a preliminary factual determination that there was
insufficient evidence of a Perkins operation to give the issue to
the jury. The detectives’ testimonies at the preliminary hearings
were the primary evidence of an actual Perkins operation with
Serrano. The evidence also included a “Chrono” indicating that
the Perkins operation with Serrano had been set for a certain
date. But the detectives later testified at the September 2022
hearing that no operation had occurred and that they had
confused Serrano with a woman in another case in which they did
conduct a Perkins operation. Defendant could have introduced
evidence at that September 2022 hearing to show that a Perkins
operation actually had occurred, or to show that the detectives
12
lied when they testified their preliminary hearing testimonies
were mistaken. But defendant did not do so.
Similarly, prior to making its preliminary factual
determination, the court asked counsel to make an offer of proof
that a Perkins operation had been conducted. Counsel made
arguments that a Perkins operation had actually taken place, but
did not identify any evidence she could introduce to prove it.
Based on the foregoing, the court reasonably concluded that there
was insufficient factual foundation to permit counsel to ask the
detectives whether a Perkins operation had actually been
conducted.
Defendant asserts that there was sufficient factual
foundation that a Perkins operation with Serrano actually had
been conducted, citing (1) Detective McCoy’s preliminary hearing
testimony providing details about such an operation, (2) the fact
that Detective McCoy, who was present at the August 2021
preliminary hearing in which Detective Zaragoza testified, did
not attempt to correct his colleague’s testimony, and (3) the
“Chrono” indicating that a Perkins operation had been scheduled,
but no notation that the operation had not been conducted. But
this evidence does not establish that the trial court abused its
discretion.10 Rather, in light of the detectives’ testimonies
regarding their confusion of Serrano with Zambrano, the trial
10 The judge at the initial trial stated that the defense had a
reason to believe that a Perkins operation with Serrano had
actually happened, pointing out that both detectives had testified
at preliminary hearings that it had happened and that Detective
McCoy gave details about the operation. But at most this shows
different judges could have a difference of opinion about whether
there was enough evidence to establish the preliminary fact that
the operation actually happened, not that the court at the retrial
abused its discretion.
13
court’s ruling was not arbitrary, capricious, or patently absurd.
(People v. Miralrio (2008) 167 Cal.App.4th 448, 459 [“[That there
might be a basis for the trial court to reach a different conclusion
does not render the court’s decision an abuse of discretion”].)
And, it was reasonable for the trial court to conclude that even
though the “Chrono” included an entry indicating a Perkins
operation had been scheduled, that entry did not establish that it
had actually been conducted.
In making this ruling, the trial court did not improperly
shift the burden to the defense to prove a Perkins operation
actually had been conducted. The “proponent of the proffered
evidence has the burden of producing evidence as to the existence
of the preliminary fact.” (Evid. Code, § 403, subd. (a)(1).)
Defendant was the one seeking to introduce evidence that a
Perkins operation actually had been conducted; thus, it was his
burden to prove that preliminary fact. He did not do so. He did
not, for example, call Serrano to testify about who she spoke to
while in jail. He also did not ask for a hearing pursuant to
Evidence Code section 402.11 And there is no showing that the
prosecution failed to meet its discovery obligations. Since there
was no Perkins operation, there was nothing to disclose.
Even if the question of whether a Perkins operation had
actually been conducted was sufficient to be submitted to the
jury, defendant still had to prove that such evidence was
relevant. (People v. Fuiava (2012) 53 Cal.4th 622, 664 (Fuiava)
[mere existence of lawsuit, without proof of the truth of the
allegations raised in it, would not have been relevant to prove
deputy sheriff’s propensity or motive to unlawfully use force];
People v. Rundle (2008) 43 Cal.4th 76, 132–133, overruled in part
11 Defense counsel did request such a hearing in the first
trial.
14
on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22 [trial court did not abuse its discretion by excluding
evidence when the defendant failed to establish preliminary fact
of correlation between the proffered evidence and the inference to
be drawn from it].) He failed to do so. Defendant has not
explained how a jury determination as to whether a Perkins
operation with Serrano took place could be relevant to the
murder charge leveled against him.
During the proceedings below, defense counsel argued that
evidence of the Perkins operation was relevant to the credibility
of the detectives, because it showed that the detectives lied at the
September 2022 hearing when they testified that there was no
Perkins operation. But, as set forth below, the detectives’
credibility was a collateral issue in this case; the key issue was
identity, and their credibility had little, if any, bearing on that
issue.
C. Detectives’ prior inconsistent testimonies
1. Relevant law
Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is evidence having “any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210; see also People
v. Morrison (2004) 34 Cal.4th 698, 711.) Relevant evidence
includes “evidence ‘relevant to the credibility of a witness.’
[Citations.]” (People v. Contreras (2013) 58 Cal.4th 123, 152; see
also Evid. Code, § 780.)
“Conversely, a matter is ‘collateral’ if it has no logical
bearing on any material, disputed issue. [Citation.] A fact may
bear on the credibility of a witness and still be collateral to the
case. [Citations.]” (People v. Contreras, supra, 58 Cal.4th at
p. 152; see also People v. Tuggles (2009) 179 Cal.App.4th 339,
361.)
15
“Of course, the trial court has wide latitude under state law
to exclude evidence offered for impeachment that is collateral and
has no relevance to the action. [Citations.] This exercise of
discretion necessarily encompasses a determination that the
probative value of such evidence is ‘substantially outweighed’ by
its prejudicial, ‘confusing,’ or time-consuming nature.” (People v.
Contreras, supra, 58 Cal.4th at p. 152, citing Evid. Code, § 352.)
“[A]s long as the excluded evidence would not have produced a
‘“‘significantly different impression’”’ of the witness’s credibility,
the confrontation clause and related constitutional guarantees do
not limit the trial court’s discretion in this regard. [Citations.]”
(People v. Contreras, supra, at p. 152.)
We review a trial court’s ruling on the admissibility of
evidence, including its determinations regarding the probative
value and prejudice of evidence under Evidence Code section 352,
for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 955,
overruled in part on other grounds in People v. Doolin, supra,45 Cal.4th at p. 421, fn. 22; People v. Waidla (2000) 22 Cal.4th
690, 724.) Discretion is abused only where there is a showing
that it was exercised in “‘an arbitrary, capricious or patently
absurd manner that resulted in a manifest miscarriage of justice.
[Citations.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th
1060, 1124–1125; People v. Martinez (1998) 62 Cal.App.4th 1454,
1459.)
To the extent we consider whether defendant’s
constitutional rights were violated, we review the trial court’s
order de novo. (People v. Castaneda-Prado (2023) 94 Cal.App.5th
1260, 1283.)
2. Analysis
Applying these legal principles, we conclude that the trial
court acted well within its discretion in excluding the detectives’
preliminary hearing testimonies (1) that they conducted a
16
Perkins operation with Serrano and their later testimonies at the
September 2022 hearing that their testimonies at the
preliminary hearings were mistaken, (2) that no operation
actually had been conducted, and (3) that they had confused
Serrano with another woman with whom they had conducted a
Perkins operation. The court also reasonably barred the defense
from asking the detectives whether a Perkins operation actually
had been conducted in order to impeach the detectives.
As defendant acknowledges on appeal, the central issue in
the retrial was the identity of the person who shot and killed
Castle. During closing argument, the prosecutor asserted that
the key disputed issue was “who was the shooter.” Similarly,
defense counsel argued that defendant was not the shooter. The
detectives’ credibility was a collateral issue because it had little,
if any, logical bearing on the key disputed issue of identity.
For example, the detectives’ credibility had no bearing on:
(1) the accuracy of what was depicted on the surveillance videos;
(2) whether the hat and clothing recovered from defendant’s
home were those worn by the shooter shown on the video and the
person with Serrano at the crime scene on the day prior to the
murder; (3) whether the man shown on video exiting the
Mercedes had tattoos similar to those of defendant; (4) the
accuracy of the cell phone mapping evidence, texts, and calls that
showed Bracamontes, Serrano, and defendant in the area of the
crime scene at the time of the shooting; (5) the accuracy of the
ballistics evidence and defendant’s text seeking to replace his
gun; and (6) on evidence relating to defendant’s internet search
for news about a shooting in the area of the crime scene.
Defendant does not explain how the detectives’ credibility
had any relevance in contesting any of the evidence discussed
above showing that defendant was the shooter. Rather, on
appeal, he asserts that Detective Zaragoza’s credibility was
17
relevant because he testified at trial that he heard defendant use
the word “‘bustin,’” meaning shooting a gun, instead of the word
“‘busted,’” on the recorded jail call between defendant and
Serrano. But the jury could listen to the recorded call and decide
for themselves what word defendant said during that call,
rendering Detective Zaragoza’s credibility as to that point
unimportant. The jury was also instructed that they alone were
to decide what the facts were, further lessening any importance
of Detective Zaragoza’s testimony regarding what he heard on the
recording.
Furthermore, because Detective McCoy did not testify at
the retrial, his credibility was not at issue.
Since the detectives’ credibility was a collateral issue, the
court acted well within its broad discretion to exclude their prior
inconsistent testimony regarding whether a Perkins operation
had occurred with Serrano. (Evid. Code, § 352; People v
Contreras, supra, 58 Cal.4th at p. 153 [trial court did not abuse
its discretion in excluding impeachment evidence where no
substantive inference about the defendant’s guilt of the charged
crime could be drawn from it]; People v. Sanders (2010)
189 Cal.App.4th 543, 556 [noting that a nonparty witness’s
credibility may be a collateral matter].)
3. No constitutional error
For the same reasons, we reject defendant’s contention that
the exclusion of this evidence violated defendant’s constitutional
rights.12 As set forth above, the primary issue in this case was
the identity of the shooter, and there was ample evidence that
defendant was that shooter. Detectives Zaragoza and McCoy’s
inconsistent testimonies about a Perkins operation with Serrano
12 We do not consider defendant’s purported evidence of
“[s]tudies” that support his contention that prohibiting
impeachment evidence violated his constitutional rights.
18
had no bearing on this issue. On appeal, defendant contends: “If
the jury concluded there was a Perkins operation, and that
Serrano did not make any incriminating statements, it would
have undermined the prosecution’s theory that appellant was the
assailant.” That argument simply makes no sense.
4. Harmless error
For the sake of completeness, we note that even if the trial
court had erred in excluding any evidence on the purported
Perkins operation with Serrano, any such error would be
harmless as a matter of law. (People v. Watson (1956) 46 Cal.2d
818, 836.) At the risk of sounding redundant, given the abundant
evidence of defendant’s guilt, allowing evidence of the detectives’
inconsistent testimonies would not have resulted in a more
favorable verdict.
II. Alleged prosecutorial misconduct in first trial
Defendant contends that the prosecutor’s act during the
initial trial of changing a critical word (from “‘busted’” to
“‘bustin’”) in the transcript of a recording of one of his jail calls
and attempting to pass it off as the original transcript constituted
prosecutorial misconduct and/or outrageous governmental
conduct warranting dismissal of the case.
A. Relevant proceedings
1. Initial trial
Defendant was arrested on December 5, 2020. On
January 8, 2021, he made a call from jail to Serrano, which was
recorded. On May 17, 2022, Matthew Williams (Williams)
transcribed that call. According to that transcription, defendant
said: “Remember when I was busted and your brother damn near
run me over.” (Italics added.)
The first trial began on November 3, 2022. During that
trial, on November 28, or 29, the prosecutor gave defense counsel
a new transcript of the January 8 recorded call. Even though the
19
transcript had the same May 2022 declaration from Williams,
this transcript was not identical to the prior one. Specifically, the
transcript now indicated that defendant said: “Remember when I
was bustin’ and your brother damn near run me over.” (Italics
added.)
At a hearing on Evidence Code section 402 motions, defense
counsel argued that a transcript of a jail call between defendant
and Serrano had been altered. She argued that the prosecutor
was attempting to pass off the new transcript as if it were the
same document as the original transcript.
The court stated: “I understand your concern, but this
transcript is not going to be an exhibit. It will be marked, but the
jury will not have it in the jury room. And I will fully instruct the
jury that it is what they hear on the recording, and you are free
to play back that portion and argue that the transcript is not
correct.” The court also indicated that it would remove the
declaration/certification from the altered transcript.
Defense counsel then requested that the jury only be
presented with the original transcript that was “not somehow
manipulated to fit the prosecution’s case.” The court denied that
request, reiterating that the transcript was not evidence and
finding that “[t]here was no manipulation of any evidence.” The
court also ruled that when the recording was played, the original
transcript could be marked as a defense exhibit.
Later, when defense counsel revisited the issue, the court
stated that it would (1) permit the prosecution to use whatever
transcript it decided to present; (2) instruct the jury about the
discrepancy about the specific word used; (3) instruct the jury
that the transcript was not evidence; and (4) urge the jury to
listen carefully to the recording. The court also ruled that
defense counsel could “submit whatever transcript you have,”
including the original transcript.
20
During Detective Zaragoza’s testimony, both parties
presented transcripts of the relevant jail call. Before the
recording was played, the court instructed the jury that a
transcript was an aid, and that during deliberations, the jury
would not have either the prosecution or defense transcript, but
the jury could listen to the actual recording. The court also
informed the jury the parties disputed whether defendant used
the word “busted” or “busting.”
Detective Zaragoza testified that he heard defendant use
the word “‘bustin,” which was significant because “[i]n [his] near
15 years of being a police officer,” the words “‘busted’” and
“‘bustin’” mean “shooting.” “So for to someone to say I’m bustin,
I’m shooting, I was bustin, I was shooting I was—I busted—past
tense for I fired a shot.”
In closing argument, the prosecutor referred to the
recorded call and asserted that defendant said “‘bustin.’” But he
also argued that it was up to the jury to decide whether
defendant said “‘bustin’” or “‘busted,’” and, in either case,
defendant’s conversation with Serrano established that they were
talking about the shooting. In her closing, defense counsel
argued that the prosecution changed the word in its transcript to
manipulate the jury.
In December 2022, the trial court declared a mistrial due to
juror deadlock. Defense counsel filed a motion to dismiss,
arguing, in relevant part, that the prosecutor engaged in
“potential misconduct” by altering a key word in the transcript of
the jail call and attempting to present that transcript as if it was
the original transcript.
On January 13, 2023, the trial court denied the motion to
dismiss, finding that the issue had already been litigated—it had
already found no misconduct. The court also found that
defendant’s trial had been fair, reasoning that it had given an
21
adequate remedy regarding the altered transcript, including
instructing the jurors that they were to decide what was said on
the recording, not the transcript.
2. Retrial
Defense counsel raised the issue again at the retrial. After
discussion with the parties, the court decided that either party
could provide their own transcript of the recording. Furthermore,
the court would instruct the jury that the evidence was what they
heard on the recording, not what was written on a transcript,
which was a guide that they could use. Also, the attorneys could
argue to the jury what was actually on the recording. The jury
would listen to the recording and make their own determination
what was said.
A recording of the relevant jail call between defendant and
Serrano was played at the retrial. In closing argument, defense
counsel argued that the transcript of the call provided by the
prosecutor used the word “‘bustin’” because the prosecutor
wanted the jury to believe that defendant was talking about a
shooting. But if the jury listened to the recording, they would
hear that defendant actually used the word “‘busted,’” which
meant that he had been caught. Defense counsel argued the
prosecution was trying to spin the facts to fit its theory of the
case.
B. Relevant law
1. Prosecutorial misconduct
“Prosecutorial error ‘occurs, as a matter of state law, when
a prosecutor “engage[s] in deceptive or reprehensible tactics in
order to persuade the trier of fact to convict.” [Citation.]’”
(People v. Doane (2021) 66 Cal.App.5th 965, 976; see also People
v. Parson (2008) 44 Cal.4th 332, 359 [“Under state law, a
prosecutor who uses such methods commits misconduct even
when those actions do not result in a fundamentally unfair trial
22
[Citation.]”].) Reversible misconduct occurs if “it is reasonably
probable that without such misconduct, an outcome more
favorable to the defendant would have resulted. [Citation.]”
(Fuiava, supra, 53 Cal.4th at p. 679.)
Federal constitutional error occurs only when the
prosecutor’s actions “‘“‘comprise a pattern of conduct that is
serious and egregious, such that the trial is rendered so unfair
that the resulting conviction violates the defendant’s right to due
process of law.”’ [Citation.]” (People v. Doane, supra,
66 Cal.App.5th at p. 976.) In other words, “‘conduct by a
prosecutor that does not result in the denial of the defendant’s
specific constitutional rights—such as a comment upon the
defendant’s invocation of the right to remain silent—but is
otherwise worthy of condemnation, is not a constitutional
violation unless the challenged action “‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’” [Citation.]’ [Citation.]” (Fuiava, supra, 53 Cal.4th at
p. 679; People v. Samayoa (1997) 15 Cal.4th 795, 841; People v.
Farnam (2002) 28 Cal.4th 107, 167.)
We review the trial court’s rulings on prosecutorial
misconduct for abuse of discretion. (People v. Ramirez (2022)
13 Cal.5th 997, 1122.)
2. Outrageous government conduct
“A court’s power to dismiss a criminal case for outrageous
government conduct arises from the due process clause of the
United States Constitution. [Citation.]” (People v. Guillen (2014)
227 Cal.App.4th 934, 1002 (Guillen).) “Outrageous government
conduct is conduct that “‘shocks the conscience’” or is “‘“shocking
to the universal sense of justice.”’” (Id. at p. 1003.) “Ninth
Circuit Court of Appeals’ cases have described what a high bar
defendants who assert outrageous government conduct must
23
overcome. The remedy is a ‘narrow one.’ [Citation.]” (Id. at
p. 1004.)
Courts have found outrageous governmental conduct where
the state has violated a defendant’s bodily integrity (Rochin v.
California (1952) 342 U.S. 165, 172), entrapped a defendant into
committing crimes (Guillen, supra, 227 Cal.App.4th at pp. 1003–
1007 [citing state and federal cases in entrapment context]), or
intentionally interfered with a defendant’s right to counsel
(People v. Velasco-Palacios (2015) 235 Cal.App.4th 439, 447–449
(Velasco-Palacios)).
C. Analysis13
1. No prosecutorial misconduct or outrageous
government conduct
We agree with the People that the initial trial court acted
well within its discretion in finding that there was no
prosecutorial misconduct or outrageous government conduct due
to the change of the word “busted” to “bustin” in the transcript of
the jail call. We do not adopt defendant’s characterization of the
prosecutor’s conduct as manipulation of evidence, as dishonest, or
as an attempt to use false evidence. As the trial court expressly
noted, the transcript itself was not evidence and was not going to
be submitted to the jury as an exhibit. Furthermore, the jury
was instructed that the evidence was what they heard on the
recording of the call, not the transcript. And there is no evidence
that the recording was changed in any way.
Urging us to reverse, defendant points to Detective
Zaragoza’s testimony that he heard the word “bustin,” which is
important because defendant’s use of the word “bustin” was
13 The People argue that this claim was forfeited for failing to
object timely and properly below. We are not convinced and
reach the merits of defendant’s argument.
24
“tantamount to an admission that he was the assailant.” The
problem for defendant is that Detective Zaragoza’s testimony was
not so clear. He actually testified that both words—“busted” and
“bustin”—mean shooting. Thus, regardless of which word was on
the transcript, the import was the same.
At the initial trial, defense counsel claimed that not only
was a key word of the transcript changed, but the prosecutor also
acted dishonestly by trying to “pass off” the changed transcript as
the original by keeping the initial transcriber’s declaration with
the changed transcript. Regardless of whether the prosecutor
was trying to present the altered transcript as the original, that
did not constitute prosecutorial misconduct or outrageous
governmental conduct. As set forth above, the transcript itself
was not evidence and there was no attempt to manipulate the
recording.
2. Alleged constitutional violations
Assuming without deciding that there was prosecutorial
misconduct or outrageous government conduct, that conduct did
not violate defendant’s constitutional rights. There is no
likelihood that the People’s transcript14 improperly influenced the
jury.
As set forth above, the trial court gave both transcripts to
the jury as “an aid” during the trial. Furthermore, the jury was
instructed that it would not have either transcript during
deliberations; rather, it would “have the actual audio recording”
and it would decide what it heard. We presume that the jury
followed these instructions (People v. Smith (2007) 40 Cal.4th
483, 517–518; People v. Holt (1997) 15 Cal.4th 619, 662) and
14 We reiterate that defendant was permitted to present his
own transcript and to argue that the recording showed that
defendant used the word “busted,” not “bustin.”
25
decided the facts of the case based on what defendant actually
said on the recording, not any transcript.
Defendant’s right to counsel was also not violated for the
simple reason that he fails to offer any argument explaining how
the People’s transcript impacted his right to counsel. (Compare
Velasco-Palacios, supra, 235 Cal.App.4th at pp. 447–449
[prosecutor’s use of fraudulent transcript with purported
confession of defendant violated right to counsel by causing
counsel to withdraw, depriving appellant of his right to retain his
attorney of choice; even if counsel did not withdraw, the use of
the fraudulent evidence “inflicted irreparable damage” by causing
defendant to distrust counsel].) Absent any explanation or
analysis setting forth a violation of the right to counsel, the claim
is meritless. (See People v. Barnett (1998) 17 Cal.4th 1044, 1107,
fn. 37 (Barnett) [“As this contention is perfunctorily asserted
without any analysis or argument in support, we reject it as not
properly raised”].)
3. Harmless error
Assuming without deciding that the initial trial court
erred, under either Chapman v. California (1967) 386 U.S. 18, 24
or People v. Watson, supra, 46 Cal.2d at page 836, any error in
allowing the prosecution to rely upon the alteration of the
transcript was harmless. (People v. Houston (2012) 54 Cal.4th
1186, 1223; People v. Fernandez (2013) 216 Cal.App.4th 540,
564.) Aside from the fact that the evidence of defendant’s guilt
was overwhelming, as set forth above, the jury was instructed
that the recording was the evidence, that the transcript was a
guide, and that they were to decide the facts of the case.15
15 Not to mention the fact that the first trial resulted in a
mistrial.
26
4. Alleged failure to exclude evidence
Finally, defendant contends in the alternative that the trial
court’s failure to “exclude the evidence” warrants reversal. But
he does not specify what evidence should have been excluded, or
provide any law, argument, or analysis regarding exclusion of
evidence. We reject this one-sentence argument. (Barnett, supra,
17 Cal.4th at p. 1107, fn. 37.)
III. Admission of evidence that a gun was recovered from the
property where defendant lived
Defendant contends that the trial court erroneously
admitted evidence that a .45 caliber firearm, loaded with .45
caliber ammunition, was recovered from the converted garage at
the property where he lived because that firearm was not the
murder weapon. He claims that the evidence was irrelevant and
constituted propensity or bad character evidence, and its
admission violated his state and federal constitutional rights to
due process.
A. Relevant proceedings
1. Pretrial proceedings (nine-millimeter ammunition
admissible)
In his trial brief, the prosecutor noted that during the
December 5, 2020, search of defendant’s home, the Torrance
Police Department recovered a “firearm and ammunition”
(namely a .45 caliber handgun and .45 caliber ammunition from a
bag in the converted garage’s living room, as well as nine-
millimeter ammunition) from a dresser drawer in one of the
converted garage’s bedrooms.
At an Evidence Code section 402 hearing, over defense
counsel’s objection, the court found the nine-millimeter
ammunition16 admissible. After all, there was evidence that
16 At trial, the prosecution presented evidence that all of the
bullets recovered from the dresser drawer were nine-millimeter.
27
defendant had access to the converted garage even though he
lived in the main house. And a nine-millimeter gun recovered
from Serrano (also admitted into evidence) had turned out to be
the murder weapon.
2. Trial proceedings and rulings (.45 caliber gun and
ammunition admissible)
During direct examination of Torrance Police Department
Detective Mark Hassoldt, the prosecution presented evidence of
the nine-millimeter bullets found in a dresser in the converted
garage on the property where defendant lived.
Thereafter, the prosecutor intended to offer into evidence a
photograph of the .45 caliber gun. Defense counsel objected on
the grounds that evidence of a gun other than the murder
weapon was irrelevant and improperly inflamed the passions of
the jury. The trial court overruled the objections and admitted
evidence of the .45 caliber gun.17
In closing argument, the prosecutor did not refer to the .45
caliber gun. Instead, he argued that the nine-millimeter gun
recovered from Serrano was the murder weapon. He also noted
that nine-millimeter ammunition was recovered from the
converted garage, and some of those rounds were the same brand
of ammunition used in the murder.
One of the loose bullets was the same brand as the casings
recovered from the crime scene and bullets from the gun
recovered from Serrano, which was the murder weapon.
17 At the close of trial, in discussing the admissibility of
exhibits, defense counsel again objected to the admission of the
photograph of the .45 caliber gun. The trial court again overruled
the objection, noting that it had already addressed the
admissibility of the gun.
28
In defense counsel’s closing argument, she argued inter alia
that the converted garage (where Tiffany lived) and the house
(where defendant lived) were separate.
During rebuttal, the prosecutor did not refer to the .45
caliber gun or .45 caliber ammunition.
B. Relevant law
The rules regarding the admissibility of relevant evidence
are set forth above. (See, e.g., Evid. Code, §§ 210, 350, 352.) We
review the trial court’s rulings on the admission of evidence,
including evidence admitted under Evidence Code section 352, for
abuse of discretion. (People v. Thompson (2016) 1 Cal.5th 1043,
1120; People v. Holford (2012) 203 Cal.App.4th 155, 167.) The
erroneous admission of evidence is harmless if it is not
reasonably probable that the appellant would have obtained a
more favorable result had it been excluded. (People v. Scheer
(1998) 68 Cal.App.4th 1009, 1018–1019; People v. Jordan (2003)
108 Cal.App.4th 349, 366.) It must be shown that the erroneous
admission of evidence led to a miscarriage of justice. (Evid. Code,
§ 353, subd. (b).)
C. Analysis
Assuming without deciding that the trial court erred in
admitting evidence of the .45 caliber gun and ammunition, that
alleged error would have been harmless as a matter of law. In
light of the overwhelming evidence of defendant’s guilt, it is not
reasonably probable that defendant would have obtained a more
favorable verdict had this evidence not been admitted.
Urging us to conclude otherwise, defendant asserts that the
.45 caliber gun and .45 caliber ammunition constituted
inadmissible propensity evidence.
Courts have held that evidence that a defendant possessed
weapons not used in the commission of a charged offense is
inadmissible where its only relevance is to show that the
29
defendant is the type of person who surrounds himself with
weapons. (People v. Barnwell (2007) 41 Cal.4th 1038, 1056;
People v. Riser (1956) 47 Cal.2d 566, 577, overruled in part on
other grounds in People v. Morse (1964) 60 Cal.2d 631, 649;
People v. Henderson (1976) 58 Cal.App.3d 349, 360.)
Here, neither party presented evidence regarding who
owned the .45 caliber gun, so there was no direct evidence that
defendant owned it. Also, neither party argued to the jury that
the gun belonged to defendant. Indeed, in closing argument,
defense counsel argued that the gun belonged to Tiffany.
In fact, there was evidence that the .45 caliber gun did not
belong to defendant. At trial, the prosecution presented evidence
of defendant’s text messages in late November 2020 in which he
stated that he lost his gun, he needed to buy another gun, and
asked for help to buy one. That defendant lost his gun and was
looking to buy one in November 2020 is evidence that he did not
own the subject .45 caliber gun. After all, if defendant owned the
.45 caliber gun, there was no need for him to try to purchase
another one.
Since there was no evidence that defendant owned the .45
caliber gun, the jury could not have concluded that it was
evidence of his propensity to own weapons.
IV. Alleged prosecutorial misconduct in the retrial
Defendant contends that the prosecutor engaged in a
pattern of misconduct, specifying three instances: (1) the
prosecutor altered the transcript of a recorded jail call between
defendant and Serrano, changing the word “busted” to “bustin”;
(2) the prosecutor violated trial court rulings excluding gang
evidence; and (3) the prosecutor submitted copies of exhibits
containing evidence that had not actually been admitted at trial.
30
A. Relevant law
As set forth above, a prosecutor’s use of deceptive or
reprehensible methods to persuade the court or jury constitutes
misconduct under California law, and a prosecutor’s conduct
violates the federal Constitution if it so infected the trial with
unfairness as to deny due process. (Fuiava, supra, 53 Cal.4th at
p. 679.) We review a trial court’s prosecutorial misconduct
rulings for abuse of discretion. (People v. Ramirez, supra,
13 Cal.5th at p. 1122.)
“[A] number of instances of prosecutorial misconduct may
act synergistically to create an atmosphere of prejudice more
intense than the sum of its parts.” (People v. Seumanu (2015)
61 Cal.4th 1293, 1349–1350; People v. Hill (1998) 17 Cal.4th 800,
823–829 [detailing the misconduct], 845, 847 [noting “[t]he sheer
number of the instances of prosecutorial misconduct”].)
B. Analysis
1. Alleged alteration of transcript
Regarding defendant’s allegation that the prosecutor
altered the transcript of a recorded jail call between defendant
and Serrano, for the reasons set forth above, this claim lacks
merit. And, by the time of the retrial, there was no issue
concerning the prosecutor’s attempt to “pass off” an altered
transcript as the original.
2. Alleged violation of rulings excluding gang
evidence
a. Relevant proceedings
Prior to trial, the court granted defendant’s motion to
exclude any evidence of defendant’s gang membership.
On February 15, 2023, before the trial court preinstructed
the jury and before any evidence was presented, defense counsel
asked that the prosecutor advise Officer Byun to not mention
anything about gangs, noting that he had done so at the first
31
trial. The court declined to do so, but pointed out its ruling
excluding gang evidence had been very clear.
During the prosecutor’s direct examination of Officer Byun,
the following colloquy took place:
“Q. Can you tell us your current occupation and
assignment?
“A. I’m currently assigned –
“Q. Wait. Let me stop you there. [¶] Do you work for
L.A.P.D.?
“A. Yes, sir.
“Q. And do you work patrol for L.A.P.D.?
“A. No. I’m currently assigned to Southeast gang
enforcement detail.”
Defense counsel objected and made a “motion to limit.” The
court overruled the objection, but directed Officer Byun to listen
to the question, and give a yes-or-no answer if that was what
question called for. After a few questions, the prosecutor asked
Officer Byun to explain his duties in responding to 911 calls.
Officer Byun responded, “My duties as a police officer is
responding to any type of radio calls. It could be gang-related. It
could be murders, robberies.” Defense counsel objected and
asked for a sidebar; the trial court declined the request.
Subsequently, the trial court discussed Officer Byun’s
testimony with the parties. The court told the prosecutor that he
had a duty to talk to his witnesses about its evidentiary rulings
so as to keep them from testifying about inadmissible matters.
The prosecutor responded that before putting Officer Byun on the
stand, he told Officer Byun not to mention gangs. The court
ruled that if the jury asked for readback of Officer Byun’s
testimony, it would strike Officer Byun’s answers pertaining to
gangs.
32
Defense counsel moved for a mistrial, which the trial court
denied.
b. Forfeiture
Preliminarily, we agree with the People that defendant
forfeited this claim of prosecutorial misconduct by failing to
object on grounds of prosecutorial misconduct and requesting an
admonition. (Fuiava, supra, 53 Cal.4th at pp. 679–681; People v.
Peoples (2016) 62 Cal.4th 718, 797.) In response to Officer Byun’s
references to working in a gang detail and the radio calls that he
responded to could be gang-related, counsel objected, but did not
specify that she was doing so on grounds of prosecutorial
misconduct. While she made a motion for a mistrial, she did not
specify prosecutorial misconduct as the basis for that motion.
And there is no evidence that a timely objection would have been
futile. (Ibid.) Under these circumstances, defendant has
forfeited this objection on appeal.
c. Analysis
In any event, on the merits, defendant’s claim fails.
Though Officer Byun made two brief references to gangs, the
record shows that he did so of his own accord despite the
prosecutor’s efforts to keep him from doing so.18 Before Officer
Byun testified, the prosecutor told Officer Byun not to discuss
gangs. When Officer Byun was about to mention that he worked
in a gang detail, the prosecutor stopped Officer Byun and
specifically asked if he worked patrol, suggesting that the
prosecutor was trying to guide Officer Byun away from specifying
that he worked in a gang detail.
18 It follows that we reject any suggestion that the prosecutor
intentionally elicited inadmissible testimony. (People v. Parker
(2022) 13 Cal.5th 1, 77; Fuiava, supra, 53 Cal.4th at p. 679.)
33
Even if we assumed that the prosecutor’s conduct as to
Officer Byun’s testimony was somehow improper (which it was
not), nothing about that conduct was deceptive, reprehensible, or
a violation of due process. (See, e.g., People v. Navarro (2021)
12 Cal.5th 285, 336 [though prosecutor’s question was “likely
improper,” it was neither deceptive nor reprehensible, nor did it
infect the trial with unfairness].) His questions were
foundational, i.e., asking about Officer Byun’s job responsibilities,
and Officer Byun made only two brief references to how gangs
related to his work. This testimony “undoubtedly had no effect
on the jury’s verdict.” (Ibid.)
Finally, there was no reasonable likelihood that the jury
understood Officer Byun’s testimony to mean, as defendant
asserts, that the shooting in this case was gang-related.19 Officer
Byun’s testimony described his role in responding to the crime.
He did not offer any specific testimony about gangs, i.e., he did
not testify that the crime scene was in the area of a particular
gang, or that defendant or Castle was a gang member. Moreover,
Officer Byun’s references to gangs were limited to stating that he
was “currently assigned” to a gang detail. Given that the instant
offense occurred years earlier, there is no reason that the jury
would have necessarily concluded that Officer Byun was working
in the same capacity at the time that defendant committed the
instant offense.
3. Submission of CDs containing jail calls of Serrano,
Bracamontes, and defendant that had not been admitted at trial
a. Relevant proceedings
During the first day of presenting witnesses at the retrial,
the prosecutor indicated that the People’s exhibit No. 1A was an
eight-gigabyte flash drive containing numerous files. The court
19 It follows that defendant was not prejudiced by Officer
Byun’s testimony.
34
instructed the prosecutor that each exhibit had to be placed on a
separate CD. After the prosecutor completed presenting his case-
in-chief, the court reiterated that both parties had to “put on a
separate CD for every separate exhibit.”
After jury deliberations began, the jurors were given a
laptop so that they could view some of the exhibits. Following a
discussion about the jury’s request for People’s exhibit Nos. 48
and 49, the court stated that it would tell the jurors that People’s
exhibit Nos. 48 and 49 were lists of jail calls introduced for
limited purpose of showing numbers called by Serrano and
Bracamontes, but “there was no jail call audio introduced” on
them.
Exhibits, including People’s exhibit Nos. 48 and 49, were
provided to the jury, along with a “clean” laptop.
Later that day, when the prosecutor was not in court, he
received a text from defense counsel indicating that the court’s
judicial assistant wanted to ensure that there was no audio on
People’s exhibit Nos. 48 and 49. The prosecutor responded that
there was audio of the jail calls on those exhibits.
Despite the trial court’s statement that exhibit Nos. 48 and
49 were only a list of the jail calls between Bracamontes and
Serrano (no audio), it turned out, as the prosecutor had told
defense counsel, that those exhibits did contain audio of the jail
calls. According to defense counsel, the court’s judicial assistant
“caught that issue.” Thus, as a precaution, those exhibits had
been pulled from the jury room.
The court then reiterated to the prosecutor: “You need to
provide not all the files on one CD. This is the reason we do this
[require each exhibit to be submitted on a separate CD].” The
court asked the prosecutor what other exhibits might contain
unadmitted evidence. The prosecutor replied that People’s
exhibit No. 46A might contain all of defendant’s jail calls, not just
35
the three calls admitted at trial. The court directed the judicial
assistant to pull People’s exhibit No. 46A from the jury room and
explain to the jurors that the court needed to check something.
Thereafter, the court used a computer to review People’s
exhibit No. 46A in chambers with the parties and determined
that it contained recordings of all of defendant’s jail calls. It told
the prosecutor that he had failed to comply with the prior rulings
to submit each exhibit on a separate CD. The court ruled it was
going to “pull all the CD’s” and that going forward, whenever the
jury requested to view or hear an exhibit, the court and parties
would review it in open court. Finally, the court noted that when
the judicial assistant pulled People’s exhibit No. 46A, the jurors
reported that they had not yet looked at it. The laptop available
in the jury room could not play People’s exhibit No. 46A due to
software and formatting issues.
Defense counsel argued that the prosecutor had committed
misconduct by knowingly submitting exhibits to the jury that
contained unadmitted evidence. Counsel also argued that the
prosecutor had violated his duty of candor by not specifying that
People’s exhibit Nos. 48 and 49 contained not only lists but also
the actual audio of the jail calls of Serrano and Bracamontes.
Counsel asserted that this misconduct warranted a mistrial.
The court denied defendant’s motion, finding that the
prosecutor did not attempt to commit any type of fraud on
defense counsel or the court. Rather, his inclusion of unadmitted
evidence on some of the exhibits was the result of
“disorganization.” The court further found no prejudice as a
result of the prosecutor’s error “because as we know, the jury has
not had an opportunity, even if they wanted to or tried to, they
couldn’t look at any CD’s based on the formatting on the laptop
that was provided to them.”
36
After the jury reached its verdict, the prosecution filed a
“Final Exhibit List.” The prosecutor summarized the proceedings
concerning People’s exhibit Nos. 48 and 49 (the jail calls of
Serrano and Bracamontes) and 46A (defendant’s jail calls), noting
that those exhibits included evidence not admitted at trial. The
prosecutor conducted further review and believed that additional
exhibits that he had submitted included evidence not admitted at
trial, specifying People’s exhibit No. 46A and Facebook and
Instagram records for Serrano and Bracamontes. The prosecutor
asserted that the jury did not view any of these exhibits because
all of the CDs had been pulled from the jury room, the jury did
not request Serrano and Bracamontes’s social media records, and
the laptop provided to the jurors could not play the CDs.
The prosecutor also reviewed the laptop given to the jurors
and searched for recent files opened on it. Based on that review,
the jury viewed two files related to a video of the December 5,
2020, search of defendant’s home. That review also showed that
the files containing the jail calls had been “accessed or clicked
on,” but “the software on the computer [did] not allow the
computer to play those files.”
Finally, the prosecutor provided information showing that
he had four other pressing cases at the time of jury deliberations
in this case.
b. No prosecutorial misconduct
The trial court did not err in finding no prosecutorial
misconduct. The prosecution’s case included voluminous
exhibits; as such, the trial court did not abuse its discretion in
finding that the prosecutor’s inadvertent inclusion of unadmitted
evidence was the result of his disorganization and lack of careful
review.
Further, in response to defense counsel’s text that the
court’s judicial assistant wanted to ensure there was no audio on
37
People’s exhibit Nos. 48 and 49, the prosecutor admitted that
those exhibits included the audio of the calls. When asked if any
other exhibits might include evidence not admitted at trial, the
prosecutor responded that People’s exhibit No. 46A might include
all of defendant’s jail calls, not just the three that had been
admitted at trial. Based on these responses, we can reasonably
infer that the prosecutor was not acting deceptively or in a
reprehensible manner, but out of carelessness. And any such
carelessness did not so infect the trial with unfairness as to
violate due process. (See People v. Navarro, supra, 12 Cal.5th at
p. 336.)
c. No prejudice
We further conclude that the trial court did not err in
finding no prejudice. People’s exhibit Nos. 48 and 49 were pulled
from the jury room, and there is no evidence or argument that
the jury actually listened to these calls; indeed, defense counsel
stated that “luckily the J.A. [judicial assistant] caught that
issue.” And, the judicial assistant told the trial judge that the
jurors had reported that they did not listen to exhibit No. 46A.
In fact, the jury was unable to listen to People’s exhibit
Nos. 46A, 48, or 49. The laptop that had been provided to the
jurors was unable to play any of the CDs due to formatting and
software issues. Since the jury did not and could not have heard
any of the unadmitted jail call recordings included in People’s
exhibit Nos. 46A, 48, or 49, defendant certainly could not have
been prejudiced by the error in providing those calls to the jury.20
(See, e.g., Seumanu, supra, 61 Cal.4th at p. 1350 [even
considering claims of judicial and prosecutorial misconduct
together, there was no cumulative prejudice].)
20 Given that the jury did not listen to the subject recordings,
we reject defendant’s assertion that prejudice must be presumed
here.
38
V. Denial of defendant’s petition for release of juror identifying
information and allowing the jury to leave via private elevator
Defendant contends that the trial court abused its
discretion and violated his right to due process by preventing
defense counsel from speaking to the jurors after the verdict.
A. Relevant proceedings
After the jury reached its verdict, defense counsel filed a
petition for access to personal juror identifying information. In
counsel’s supporting declaration, she declared that after the
jury’s verdict was read, she waited outside the courtroom, but the
jurors were escorted out of the courtroom in the judge’s elevator,
preventing her from asking the jurors if they would be willing to
speak with the defense. Counsel asserted that she needed to
contact the jurors to determine if any of them viewed or listened
to any inadmissible evidence, noting that the prosecutor had
submitted CDs containing inadmissible evidence as exhibits.
Counsel summarized the proceedings regarding the unadmitted
jail calls included in People’s exhibit Nos. 46A, 48, and 49.
Counsel asserted there may have been other exhibits containing
inadmissible evidence that had been submitted to the jury. This
information was relevant to a motion for a new trial and an
appeal.
As discussed above, in a postverdict final exhibit list, the
prosecutor explained that additional exhibits with inadmissible
evidence had been submitted, but that none of the exhibits
containing unadmitted evidence had been reviewed by the jury,
as reflected by a review of information on a laptop the jury had
available during deliberations showing recent files that had been
opened.
At the March 17, 2023, hearing on defendant’s petition,
defense counsel noted that in addition to the points she had made
in her petition, the prosecutor had filed an exhibit list indicating
39
an additional CD that contained unadmitted evidence. The
prosecutor stated that his exhibit list included screenshots from
the laptop given to the jury showing which files were accessed,
and offered to present that laptop to the court. The court stated
there was no need, since it had presided over the trial.
Defense counsel argued that the court had precluded the
defense from trying to speak to the jurors after the verdict, and if
the court denied her petition, she would be unable to determine
whether the jury had relied on inadmissible evidence in reaching
its verdict. The court found that defense counsel’s “statements
that were just made about the court foreclosing you from doing
certain things” was “a misstatement and inaccurate.” The court
also found her declaration in support of the petition “full of
misstatements or interpretations as you put them.”
The court then summarized the proceedings. It noted that
the jurors had been instructed with CALCRIM No. 3590.21 Then,
relying upon People v. Santos (2007) 147 Cal.App.4th 965(Santos), it indicated that it had permitted the jury to exit the
courtroom through the judges’ elevator, but did so not to prevent
21 That instruction provides: “You have now completed your
jury service in this case. On behalf of all the judges of the court,
please accept my thanks for your time and effort. [¶] Now that
the case is over, you may choose whether or not to discuss the
case and your deliberations with anyone. [¶] Let me tell you
about some rules the law puts in place for your convenience and
protection. [¶] The lawyers in this case, the defendant, or their
representatives may now talk to you about the case, including
your deliberations or verdict. Those discussions must occur at a
reasonable time and place and with your consent. [¶] Please tell
me immediately if anyone unreasonably contacts you without
your consent. [¶] Anyone who violates these rules is violating a
court order and may be fined. [¶] Again, thank you for your
service. You are now excused.”
40
the jurors from speak to anyone. Rather, it did so for several
other reasons, including to prevent the jury from dealing with
courtroom spectators who “got very emotional when the verdict
was read.”
The court summarized the relevant facts related to the
unadmitted evidence. The parties agreed that if the jury
requested to view or hear any video or calls, it would be provided
with a “clean laptop” provided by the prosecution. When the
court became aware that some exhibits included unadmitted
evidence, the court removed all the CDs and the laptop from the
jury room. The judicial assistant was informed by the jury that it
had not yet gotten to the calls. Later, the court and parties
learned that the laptop provided to the jury would not open any
files on the CDs due to formatting issues. The court was
“confident” that the jury had not reviewed any of the unadmitted
calls because of the computer’s formatting issues and what the
jurors told the judicial assistant.
The court found that the petition and defense counsel’s
supporting declaration failed to establish a prima facie case of
juror misconduct, noting counsel had not even alleged juror
misconduct, but prosecutorial misconduct. It also found defense
counsel’s allegation that the jury could have listened to
inadmissible evidence speculative.
B. Relevant law
In a criminal case, jurors’ personal identifying information
such as their names and phone numbers must be sealed after the
verdict is recorded. (Code Civ. Proc., § 237, subd. (a); People v.
Johnson (2013) 222 Cal.App.4th 486, 492.) A defendant or
defendant’s counsel may petition the court for access to such
information for the purpose of developing a new trial motion or
any other lawful purpose. (Code Civ. Proc., § 206, subd. (g).)
Such a petition must be supported by a declaration that includes
41
facts sufficient to establish good cause for release of juror
identifying information. (Code Civ. Proc., § 237, subd. (b).)
To demonstrate good cause for the release of juror
identifying information, a defendant must make “‘a sufficient
showing to support a reasonable belief that jury misconduct
occurred, that diligent efforts were made to contact the jurors
through other means, and that further investigation is necessary
to provide the court with adequate information to rule on a
motion for new trial.’” (People v. Jones (1998) 17 Cal.4th 279,
317.) Good cause does not exist where allegations of juror
misconduct are speculative, conclusory, vague, or unsupported.
(People v. Munoz (2019) 31 Cal.App.5th 143, 165; People v. Wilson
(1996) 43 Cal.App.4th 839, 852.)
“We review [the trial court’s] order on a motion for
disclosure of jurors’ identifying information under the deferential
abuse of discretion standard.” (People v. Johnson, supra,222 Cal.App.4th at p. 492.)
C. Analysis
Applying these legal principles, we conclude that the trial
court did not abuse its discretion.
1. No good cause warranting disclosure of contact
information
Defendant failed to establish good cause warranting
disclosure of the jurors’ contact information. As noted by the
court, neither the petition itself or defense counsel’s supporting
declaration alleged juror misconduct. Rather, all she asserted
was that the prosecutor committed misconduct by submitting
exhibits containing inadmissible evidence to the jury.
Defense counsel wanted to contact the jurors to investigate
whether they had considered evidence that was improperly given
to them. But, the record of the inquiry made by the parties and
court during deliberations shows that the jury did not and could
42
not have engaged in the potential misconduct alleged by
defendant: the CDs containing unadmitted evidence were pulled
from the jury room before they could listen to or view them. Also,
the judicial assistant reported22 that the jurors had stated that
they had not viewed the CDs containing unadmitted evidence,
and the laptop given to the jurors could not access the files on the
CDs. Even though defendant had the opportunity to challenge
these facts below, he presented nothing during the proceedings
regarding the exhibits in question to show that the jury actually
viewed or listened to any inadmissible evidence. Under these
circumstances, the trial court reasonably concluded that
defendant failed to make a sufficient showing to support a
reasonable belief that juror misconduct had occurred.23 (See
People v. Jones, supra, 17 Cal.4th at p. 317; People v. Wilson,
supra, 43 Cal.App.4th at p. 852 [good cause does not exist where
the allegations of jury misconduct are speculative, conclusory,
vague, or unsupported].)
Defendant argues that the trial court improperly made
credibility determinations in connection with his motion.
Assuming without deciding that the court’s finding that defense
counsel’s declaration was full of misstatements was improper, the
court still correctly noted that the petition and declaration failed
22 On appeal, defendant contends that the trial court
improperly considered the judicial assistant’s hearsay statement
and the prosecutor’s uncorroborated assertion that the files could
not be played on the laptop. But defendant did not raise these
objections below, forfeiting them on appeal. (Evid. Code, § 353,
subd. (a); Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1268
[failure to make hearsay objection below forfeits the objection on
appeal]; People v. Zapien (1993) 4 Cal.4th 929, 979.)
23 It follows that defendant’s contention that there is a
presumption of prejudice arising from juror misconduct fails.
43
to allege juror misconduct. Nor could defense counsel ever do so.
At the risk of sounding redundant, the unadmitted evidence was
removed from the jury before they could review it.
2. Permitting the jury to leave the courtroom via
private elevator
Defendant asserts that his due process rights under state
law were violated because the court permitted the jury to leave
the courtroom through the judge’s private elevator. As set forth
in Santos, supra, 147 Cal.App.4th at pages 978 to 980 [a criminal
defendant has no guaranty of posttrial access to jurors or a right
to question them about their guilty verdict], there was no state
law due process violation. (See also Townsel v. Superior Court
(1999) 20 Cal.4th 1084, 1092; People v. Cox (1991) 53 Cal.3d 618,
698–699, overruled in part on other grounds in People v. Doolin,
supra, 45 Cal.4th at p. 421, fn. 22; People v. Singh (2012)
206 Cal.App.4th 366, 372 [permitting a jury to leave by a private
exit did not violate a defendant’s right to be personally present at
critical stage of proceedings].)
VI. Cumulative error
In light of our conclusion that no error—let alone
prejudicial error—occurred below, defendant’s claim of
cumulative error fails.24 (People v. Duff (2014) 58 Cal.4th 527,
562.)
24 At most, the trial court erred in admitting the .45 caliber
gun into evidence. But that one assumed error is insufficient to
establish cumulative error. (In re Avena (1996) 12 Cal.4th 694,
772, fn. 32.)
44
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
ASHMANN-GERST
We concur:
________________________, P. J.
LUI
________________________, J.
HOFFSTADT
45