People v. Jackson CA4/1

Filed 5/20/21 P. v. Jackson CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D076466
Plaintiff and Respondent,
v. (Super. Ct. No. SCD275644)
NOAH MITCHELL JACKSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Michael S. Groch, Judge. Affirmed.
Nancy J. King, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael P.
Pulos and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
A 65-year-old homeless man was stabbed to death on the streets of
Ocean Beach. The homicide was seen by eyewitnesses and recorded on video
by surveillance cameras of nearby businesses, but the assailant ran off and
was not immediately apprehended. After an investigation, Noah Mitchell
Jackson was determined to be the perpetrator of the homicide.
A jury found Jackson not guilty of first degree murder (Pen. Code, §§
187, subd. (a), 189, subd. (a)),1 but guilty of second degree murder (§§ 187,
subd. (a), 189, subd. (b)). The jury found true the allegation that Jackson
used a deadly weapon, a knife, in the commission of the offense. (§ 12022,
subd. (b)(1).) Jackson was sentenced to a prison term of 15 years to life.
Jackson appeals, asserting that errors of constitutional dimension
arose when (1) the trial court restricted his counsel’s cross-examination of a
critical prosecution witness; (2) the trial court declined to instruct the jury on
voluntary manslaughter on a heat of passion theory; (3) the trial court
excluded his proffered third party culpability evidence; (4) the jury convicted
him based on insufficient evidence; and (5) the foregoing errors are
aggregated, resulting in cumulative error.
We conclude these contentions lack merit. Accordingly, we affirm the
judgment.
1 Further unspecified statutory references are to the Penal Code, unless
otherwise indicated.
2
FACTUAL AND PROCEDURAL BACKGROUND2
I.
The Prosecution’s Case
A. The Stabbing Death of Walter “Ras” R.
1. Testimony of Jamie H.
Just after midnight on June 22, 2017, Jamie H.3 was at a reggae
concert at Winstons Beach Club (Winstons) on Bacon Street in Ocean Beach.
At around 12:20 a.m., Jamie left Winstons to join some friends on the
sidewalk outside the club. At some point, he looked “[d]irectly across” Bacon
Street and saw a person “striking” Walter “Ras” R. Ras was an older African-
American homeless person known to Jamie, and other locals, as the “Incense
Man” because he sold incense to people on the street.
Ras was standing on the sidewalk in front of a retail clothing store on
the west side of Bacon Street. Jamie saw the assailant “repeatedly punch[ ]”
Ras in “rapid arm movement[s]” directed horizontally into Ras’s “chest area
or middle body area.” The assailant struck Ras three or four times. Ras then
crumpled to the ground. Jamie did not see Ras try to strike the assailant or
otherwise defend himself. After he saw the assailant striking Ras, Jamie
heard a female voice scream, “He’s got a knife.” Jamie did not see a knife but
immediately assumed Ras had been stabbed rather than punched.
2 Because Jackson’s appeal implicates the substantial evidence standard
of review, we summarize the evidence and state the relevant facts in the light
most favorable to the judgment. (People v. Jennings (2010) 50 Cal.4th 616,
638.)
3 Pursuant to rule 8.90(b)(10) of the California Rules of Court, which
governs privacy in opinions, we have opted to refer to private citizen
witnesses by their first name and the first initial of their last names, and
then by first name only. Under rule 8.90(b)(4), we do the same for the victim.
3
As Ras crumpled to the ground, the assailant fled and Jamie gave
chase. At one point, when Jamie was 10 or 12 yards behind the assailant, he
heard the assailant make comments to passersby riding on bicycles that
sounded something like, “I stabbed that guy” or “I got that guy.” The tone of
the assailant’s comments was similar to someone bragging.
Unable to keep up with the assailant, Jamie pulled out his cell phone
and called 911. Jamie’s 911 call was received at 12:25:26 a.m. on June 22.
He reported a stabbing at Bacon Street and Newport Avenue, and told the
911 dispatcher where he last saw the assailant and that the assailant was
wearing “blue jeans” and “a grey hoodie.”
Jamie testified that the area where Ras was stabbed was “very well lit”
and he could see during the assault that the assailant was wearing blue jeans
and “some form of a hooded sweatshirt” that was a “silver gray-ish color.”
Jamie never saw the assailant’s face because he had the hood of the
sweatshirt up over his head. From his observations during the chase, Jamie
estimated the assailant was five feet 10 inches tall and concluded from the
assailant’s body movements that he was “[m]ost definitely” a “younger”
person.
2. Testimony of Ryan H.
Ryan H. was another patron attending the reggae concert at Winstons
on June 22, 2017. Between midnight and 12:30 a.m., Ryan left the club and
called for an Uber car. As he was standing on Bacon Street outside the club,
he looked up and noticed two men standing across the street. One of the men
fell, and the other man “took off running.” The man who fled was wearing a
gray hooded sweatshirt with the hood up, so Ryan could not see his face.
Ryan ran across the street to see if the victim was okay. He found an
older African-American man, perhaps in his 50s or 60s, lying on his back and
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bleeding. The victim was conscious but not responsive to Ryan’s questions.
Ryan knelt down and lifted the victim up by his shoulders and saw there was
a stab wound in his back.
Ryan attempted to perform CPR on the victim and called 911. His 911
call was received at 12:25:33 a.m. Ryan reported that someone had been
stabbed on Bacon Street and that the suspect “had on blue jeans and a gray
white hoodie” and had a knife. While he was speaking with the 911
dispatcher, a police officer arrived onto the scene.
3. Testimony of Officer Jonathan Scull
Officer Jonathan Scull of the San Diego Police Department4 arrived at
approximately 12:28 a.m. on June 22, 2017. He found Officer Sarah Sutter
actively performing chest compressions on Ras and assisted her with the CPR
efforts. Officer Scull saw blood on Ras’s pants, around his groin area, which
had soaked through his shirt. He undressed Ras to assess his injuries and
saw a stab wound to his leg and a stab wound to his back.
Paramedics arrived and transported Ras to the hospital. Lifesaving
measures were taken but were unsuccessful. Ras was pronounced dead at
1:06 a.m.
4. Cause of Death
The medical examiner determined that Ras was 65 years old, six feet
two inches tall, and 161 pounds at the time of his death. The autopsy
revealed Ras had suffered six stab wounds.
Three of the wounds were superficial. The fourth wound was on Ras’s
left forearm. It was one inch long and one and one-half to two and one-half
4 Unless specified otherwise, all law enforcement personnel discussed
herein are members of the San Diego Police Department.
5
inches deep. The medical examiner determined from the appearance of this
wound that the weapon that caused it was consistent with a knife that had
one sharp edge and one blunt edge. The fifth wound was one to two inches
deep and was located in Ras’s upper left thigh.
The sixth stab wound was on the left side of Ras’s back. It was one and
one-quarter inches long and four to six inches deep. It penetrated Ras’s chest
wall and completely incised his ninth rib, cutting it in half. It penetrated the
lower lobe of Ras’s left lung through and through. It then penetrated Ras’s
heart through the left ventricle and the muscle between the left and right
ventricles, terminating with a small incised wound that partially punctured
the right ventricle. This wound was fatal and likely caused Ras to bleed to
death.
The medical examiner concluded Ras died from multiple sharp force
injuries.
B. Video Footage from Surveillance Cameras in the Area
Detectives Robert Korbecki and Timothy Radtke responded to the
crime scene in the very early morning of June 22, 2017 to investigate a
possible murder. From Jamie’s statement, the detectives had a description of
the suspect and the route taken by the suspect fleeing from the crime scene.
They began to collect and review video evidence from surveillance cameras
installed by local businesses in the area. During their investigation, the
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detectives gathered surveillance videos recorded from over a dozen Ocean
Beach businesses.5
Surveillance cameras recorded the homicide of Ras, as well as the
suspect’s flight after the homicide and his path of travel in the area before
the homicide.
1. The Homicide
Ras was stabbed on the sidewalk in front of the Temptress Fashion
Shop on the west side of Bacon Street. Directly across from the shop was
Winstons, on the east side of Bacon Street. Immediately next to Winstons
was the Arizona Cafe, separated by a small alley. Both Winstons and the
Arizona Cafe had surveillance cameras directed at the location where Ras
was stabbed. All three of these businesses were near the intersection of
Bacon Street and Newport Avenue. Newport Avenue runs roughly west and
east, and ends at the beach. Bacon Street runs perpendicular to Newport
Avenue in a roughly north and south direction.
5 Jackson requested transmittal to this court of select photographic
exhibits from the trial. The request was granted, and we have reviewed
these exhibits. We independently directed the superior court to transmit the
remaining trial exhibits, including the surveillance video exhibits, to this
court under California Rules of Court, rule 8.224(d), and have reviewed these
as well.
7
Footage from the Winstons camera, at time stamp 12:24:15 a.m. on
June 22, 2017,6 showed Ras falling to the ground on the sidewalk across the
street as another person ran away. At 12:24:26 a.m., Jamie, wearing a blue
jacket and shorts, walked into the middle of Bacon Street.
Footage from the Arizona Cafe camera, at 12:14:35 a.m., showed Ras
standing on the sidewalk in front of the window of the Temptress Fashion
Shop. Approximately a minute later, the suspect, wearing a light-colored
hoodie and dark pants, walked north on Bacon Street past Winstons and then
crossed to the west side of Bacon Street. He continued north on Bacon Street
but then stopped at 12:16:00 a.m., turned around and walked toward Ras.
He passed Ras, who was still standing in front of the Temptress Fashion
Shop, but then turned around and walked back toward Ras again. At
12:16:13 a.m., the suspect stopped next to Ras and the two men remained
standing in this position for more than two minutes.
At 12:19:24 a.m., Ras walked south on Bacon Street and out of view.
The suspect immediately followed Ras south on Bacon Street and out of view.
At 12:22:20 a.m., Ras walked north on Bacon Street and returned to his
original location in front of the Temptress Fashion Shop. At 12:23:00 a.m.,
the suspect walked toward Ras and stood next to Ras for a little over one
6 The detectives determined the accuracy of the time stamps for some,
but not all, of the surveillance cameras. Where the detectives were able to
confirm the accuracy of the time stamps, they did so to the minute, but not to
the second. Thus, videos determined by the detectives to be properly
calibrated could still have been off by 59 seconds in either direction. Unless
specified otherwise, the accuracy of the time stamps is unknown. Since all of
the surveillance video footage was captured on June 22, 2017, we omit this
date from our subsequent descriptions. Finally, for ease of the reader, we
have converted all time stamps from military to civilian time. For example, a
time stamp of 00:14:35 is stated as 12:14:35 a.m.
8
minute. At 12:24:15 a.m., the suspect lunged at Ras, and Ras fell to the
ground. The suspect immediately fled south on Bacon Street.
Jamie confirmed at trial that the Arizona Cafe video accurately
depicted “the moments and minutes leading up to the stabbing” of Ras.
2. The Suspect’s Flight After the Homicide
Jamie chased the suspect as he fled south on Bacon Street toward
Newport Avenue. He ran east a short distance on the north sidewalk of
Newport Avenue, past a Starbucks, and then turned into a parking lot next to
the Apple Tree Supermarket (Apple Tree). Here, Jamie could not keep up
with the suspect and watched the suspect run north through the parking lot,
turn to run east through an alley, and around the corner of a CVS store that
abutted the alley to the north.
A camera installed on the north side of the Apple Tree recorded the
area of the parking lot. A loading dock at the rear of the CVS had a
surveillance camera that recorded a small section of the alley. Video footage
from the Apple Tree camera, time stamped at 12:22:46 a.m., and the CVS
camera, time stamped at 12:23:00 a.m., showed the suspect running through
the parking lot and alley, as described by Jamie. The suspect was wearing a
light-colored hoodie, with the hood pulled over his head; dark loose-fitting
pants; and shoes that were a lighter color than his pants.
3. The Suspect’s Path of Travel Before the Homicide
Surveillance videos from various businesses along Newport Avenue
showed the suspect walking west on Newport Avenue toward Bacon Street,
approximately 10 minutes before the homicide occurred. A Bank of America
ATM machine (ATM) was embedded in the exterior wall of the Apple Tree,
which was on the north side of Newport Avenue, near Bacon Street. The
ATM had three cameras, each showing the sidewalk on Newport Avenue.
9
The area in front of the ATM was well-lit and because the cameras recorded
in color and had a good vantage point of passersby, images of the suspect
from these cameras were clearer and better-defined than images from other
surveillance cameras.
At 12:13:23 a.m., the suspect could be seen walking by the ATM,
westbound on Newport Avenue toward Bacon Street. He was slender in build
and wearing somewhat baggy pants that appeared dark in color and a light
gray hoodie. Although the hood was up, he was turned toward the cameras,
so his face and neck were partially in view. It could be seen that he had a
long, straight, prominent nose, an angular jaw and cheekbones, and a chin
less prominent than his nose. What appeared to be dark hair was visible
under his hood.
C. Jackson Is Identified by Witnesses
In September 2017, photographs of the suspect from the ATM
surveillance footage were developed and used in a “Crime Stoppers” flyer.
Law enforcement distributed the flyer to the public to aid in its investigation.
In separate interviews in October 2017, detectives interviewed Riley D.,
Kasey D., and Caleb W., all of whom were Jackson’s friends or acquaintances
and were with Jackson on the night of June 21, 2017, hours before the
homicide. Each witness was shown the flyer. Riley told detectives that “on a
scale of 1 to 10,” he was “about a 7” that the suspect in the flyer was Jackson.
Kasey immediately told detectives, “it looks a lot like [Jackson].” When
detectives showed Caleb the flyer, he told them, “that’s definitely [Jackson]. .
. . yeah, that’s him.” At trial, Caleb confirmed the images of the suspect in
the ATM video showed what Jackson “looked like that day.”
10
D. Mary D.’s 911 Call
On the morning of June 22, 2017, Detectives Korbecki and Radtke
learned that a 911 call for a “welfare check” on a person matching the
description of the suspect had been made one and a half hours before the
homicide. The 911 call was placed by Mary D. at 10:58 p.m. on June 21 and
originated from a residence that was one and one-half to two miles from the
site of the homicide. Mary reported that she had been in a “physical”
altercation with Jackson, who was threatening to commit suicide.
Testimony at trial established that Jackson had gone to dinner on the
night of June 21 with his girlfriend, Makaela H., and several friends,
including Caleb and Riley, Mary’s son. After dinner, the group went to
Riley’s house on Orchard Avenue in Ocean Beach, about one and one-half
miles from where Ras was killed. Some in the group, including Jackson, were
drinking alcohol. Mary and her husband returned home at approximately
9:00 to 9:30 p.m. to find their sons, Riley and Kasey, at the house with
Jackson and other people.
At some point, Jackson and Makaela started to argue and Makaela left
the residence without him. Jackson grew “distraught” and “despair[ing]”
over Makaela. Mary described him as “despondent” and unnerved. Jackson
threatened to commit suicide by jumping off Sunset Cliffs.
Mary tried to calm Jackson down, but he said he wanted to leave to be
with Makaela. Mary and her other son, Kasey, tried to keep Jackson from
leaving because they were worried he was going to harm himself. As Jackson
stood in the front doorway, Mary and Kasey put their arms around him.
Jackson pulled against them with such force that all three of them fell to the
ground in front of the house.
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After she fell, Mary said, “forget it, I’m done here. I’m going to call the
cops.” She told Kasey to let Jackson go, and Jackson ran away. Mary
immediately called 911 and reported that there had been a physical
altercation at her house with Jackson, who was “high.” She reported that
Jackson had threatened suicide and she was concerned for his safety. She
described Jackson as “look[ing] maybe Italian” and of “mixed race,” both
“[W]hite and Hispanic.” She said Jackson was 19 years old, five feet seven
inches or five feet eight inches tall, of “medium” build, and wearing “a white
sweatshirt, [and] jeans.”
Caleb testified that the “disagreement” with Makaela had “triggered”
Jackson and he got “a little bit more hostile” and “a lot more aggressive with
his words.” Jackson was “on a rampage.” Caleb saw Jackson and Kasey
“fighting . . . , rolling around in the grass” with “punches being thrown.”
During this time, Jackson was not crying. Rather, Jackson was showing
“anger.”
When Caleb saw Jackson run off from Riley’s house, Caleb chased after
him because he was worried Jackson was going to harm himself. Caleb found
Jackson in an alley off Orchard Avenue; he was crying and “talking about
how [Makaela] doesn’t love him.” Caleb then walked Jackson to Makaela’s
house and as they walked, Jackson calmed down. When they arrived,
Makaela was waiting for Jackson on the front porch. Caleb dropped Jackson
off and left.
Makaela and Jackson sat down together on her front porch at around
11:30 p.m. After five or 10 minutes, Makaela went inside alone. Jackson
remained outside because “he needed to breathe.” Makaela went outside to
check on Jackson approximately two to three times. ]Each time, he was
sitting in the back seat of her father’s car in the driveway. Three minutes
12
after she last checked on him and had gone back inside the house, Jackson
called Makaela and told her they would talk the next morning and work
everything out. Makaela went to bed alone. Although she usually went to
sleep around 12:30 a.m., she could not recall what time she went to bed that
night.
Makaela did not see Jackson again that night and she could not verify
his whereabouts after she went to sleep. Jackson was not next to her when
she woke up the next day, on June 22, 2017.
On June 22, Makaela heard the Incense Man had been killed. She and
her family talked about the murder in Jackson’s presence and expressed the
hope that the killer would be found. The news coverage of the murder
included photographs of the suspect. When Makaela saw photographs of the
suspect, she thought the suspect “kind of looks like [Jackson],” but she didn’t
know “if it’s him.”
Makaela’s house was on Newport Avenue, less than four blocks east of
the location where Ras was killed. Jackson had been living there with
Makaela for a few months. Video footage taken by a surveillance camera
from a restaurant located on the south side of Newport Avenue, two blocks
from Makaela’s house, showed the suspect at around 12:12 a.m. walking west
on Newport Avenue. The suspect was seen wearing a hoodie sweatshirt and
dark pants and carrying a cell phone. The suspect could then be seen on
camera after camera as he continued west on Newport Avenue to Bacon
Street, where he assaulted Ras.
E. Jackson’s Police Interviews
On June 28, 2017, while driving on Newport Avenue, Detective
Korbecki spotted Jackson standing in front of Makaela’s house. He stopped
briefly and asked Jackson where he had gone the night of June 21 after
13
leaving Riley’s house. Jackson said he and Caleb had walked to Caleb’s
house, that he dropped Caleb off and then returned home to Makaela’s house.
Jackson said he was drunk that night. Detective Korbecki showed Jackson
the photographs of the suspect from the Apple Tree video; Jackson claimed it
was not him. Jackson also denied owning a light-colored hoodie.
On September 20, 2017, Detective Korbecki, accompanied by Detective
Ryan Siemer, interviewed Jackson again. Detective Korbecki told Jackson he
wanted to clarify what happened on June 21 after Jackson left Riley’s house.
This time, Jackson said he and Caleb had walked straight to Makaela’s
house, and that Makaela could “vouch” for his whereabouts that night.
Jackson told the detectives he had known the Incense Man. The
detectives asked if Jackson had ever had problems with Ras. Jackson
responded, “not really, I don’t know anybody that just goes down there
picking on homeless people, to be honest, like I’m -- that’s stuff we used to
[do] when we were kids.”
F. Testimony of Wayne J.
Wayne J., a 61-year-old resident of Ocean Beach, frequented
Stuff2Puff, a tobacco store on Newport Avenue a little more than a block east
of Bacon Street. Wayne was familiar with many of Ocean Beach’s younger
residents, including Jackson. In June 2017, Wayne learned of the killing of
the Incense Man.
On September 28, 2017, Wayne was in Stuff2Puff when Jackson
entered the store. Jackson confided to Wayne that the police had questioned
him about Ras’s homicide. Jackson said they had him on video and that “the
whole thing was freaking him out.” Jackson told Wayne that he went from
Newport Avenue to his girlfriend’s house at 9:30 p.m. and “wasn’t there” at
the time of the murder.
14
Wayne tried to comfort Jackson and told him, “hey, as long as the
cameras showed that you weren’t there later when that -- when the murder
occurred, you’re clear. . . . as long as, you know, you didn’t go back.” In
response, Jackson “hung his head, . . . got a dejected look and said, yeah, but
I went back.” Jackson told Wayne that Ras “was talking shit to [him].”
On September 29, 2017, Wayne reported Jackson’s statements to law
enforcement. A few days later, Jackson called Wayne and asked if Wayne
could find him some “brown,” which Wayne explained meant Mexican brown
tar heroin. Wayne said he did not know where to find any but arranged to
meet with Jackson. Wayne told the detectives about the arrangement and
they equipped him with a recording device for his meeting with Jackson.
On October 3, 2017, Wayne and Jackson met at Stuff2Puff. Wayne
recorded their conversation. Jackson told Wayne he was “fucking scared as
fucking shit” and “just was fucking taking Xanax after Xanax -- [¶] . . . [¶] --
[to] [f]ucking forget about him . . . .”
Wayne asked Jackson: “[T]he other day when . . . you were saying that
you went to . . . your girlfriend’s house at 9:30” and “then you went back to
the guy. Did a fight happen? What’s going on?” Jackson told Wayne that
“[h]e”⎯apparently referring to Ras⎯“had spit on” Jackson’s sister Melissa
“and called her a whore and this, that, and the other.” Jackson said: “Just
literally we exchanged words and I walked away. And I was just like, you
know, fuck that fuckin nigger,[7] dude. Fuck that, fuckin n[-----] and just
went back and handled it, you know.”
7 Jackson repeatedly used this racially offensive vulgarity when referring
to Ras. We quote Jackson accurately this time to inform the reader of
Jackson’s actual language. Hereafter, rather than quote Jackson’s actual use
of this word, we replace it with “n[-----].”
15
Wayne prodded Jackson to explain what he meant by “[h]andle it.”
Jackson responded that he “fucking got into it with the guy.” Wayne asked
whether Jackson “punch[ed] him.” Jackson responded that he “didn’t touch
him.” Jackson said he was “sticking to [his] [a]libi” that he “was asleep at
9:30 . . . .”
Jackson told Wayne he had “seen those fucking videos dude” and they
“look[ ] like me.” Jackson, referring to the victim, said “[h]e was the, for a
fucking n[-----], bum troll n[-----] he was fucking nice, you know.”
G. Testimony of H.E.8
1. Background
In October 2017, the detectives served a search warrant seeking
Jackson’s phone records from June 2017. The phone records showed that
Jackson and his friend, H.E., had called one another six times between 11:57
p.m. on June 21 and 12:26 p.m. on June 22.
On December 22, 2017, Detectives Siemer and Kevin Iwasaki
interviewed H.E. Subsequently, H.E. testified at the preliminary hearing on
August 8, 2018, gave another statement to detectives on August 12, 2018,
and testified at trial in May 2019.
At trial, the prosecution requested the court to order H.E. to testify
under a judicial grant of use immunity, pursuant to section 1324.9 At a
8 We refer to this witness by initials only pursuant to Cal. Rules of
Court, rule 8.90(b), which counsels that a person should be identified by
initials only where doing otherwise “would defeat the objective of anonymity.”
9 Section 1324 permits the prosecution to request the court to order a
witness who may incriminate himself to testify under a judicial grant of use
immunity. (Pen. Code, § 1324.) A grant of use immunity means that the
prosecution may not use the witness’s testimony against him in any future
prosecution, except in a prosecution for perjury. (Ibid.)
16
hearing outside the presence of the jury, the court appointed H.E. a lawyer
and granted the prosecution’s request. When he took the witness stand at
trial, H.E. testified he had appeared in court without the expectation of
immunity.
2. H.E.’s Trial Testimony
In June 2017, H.E. was 18 years old and had resided in Ocean Beach
“[m]ost of [his] life.” He had known Jackson since middle school and
considered Jackson to be one of his best friends.
On the night of June 21, 2017, H.E. got off work at Hodad’s, a
restaurant on Newport Avenue and Bacon Street in Ocean Beach, at around
10:30 or 11:00 p.m. After work, H.E. received a phone call from Jackson who
was “panicking.” Jackson told H.E. that “he had gotten into a fight with his
girlfriend at a party” and asked H.E., “Would you like to go out and fuck
somebody up with me?” Jackson sounded “irritated” or “frustrated.” H.E.
responded, “No, I’m all right. I have to go to work in the morning.”
Approximately “15 to maybe 30 minutes” later, H.E. received another
phone call from Jackson. Jackson was “breathing heavily” as though he had
been running and sounded “panicked,” as if in a “state of shock.” Jackson
immediately told H.E., “I just poked that n[-----].” H.E. could not understand
Jackson at first and asked, “[W]hat’s going on?” Jackson repeated, “I just
poked that n[-----].” H.E. told Jackson “he needed to go home and get off the
street.” Jackson said “Okay.” H.E. did not hear from Jackson again that
night.
The next morning when H.E. went to work, he saw police “Do Not
Cross” tape extending “across the alley and in front of the storefront.” Upon
seeing the crime scene, H.E. realized “this is probably what [Jackson] was
talking about” when he said he “just poked that n[-----].”
17
Less than a week later, Jackson called H.E. and asked him to come
over to his house to “smoke a joint with him” because Jackson was “freaking
out.” H.E. walked over to Makaela’s house to see Jackson. Jackson, who was
alone at the house, told H.E. he “couldn’t take it anymore.” Jackson
explained that “he heard his girlfriend’s parents talking about the man that
was killed and how they hope they find the killer and how it was eating him
alive inside.”
Jackson told H.E. he had gotten into a fight with his girlfriend and “he
was angry.” He told H.E.: “I was walking past him and he was mumbling
under his breath. And I turned around and I said, ‘what, motherfucker?”
Jackson said he didn’t recall what “Ras said to him” and told H.E., “that’s
when [I] did it.” Jackson was “panicked” and told H.E. that “the detectives
had come over and told him that he was a person of interest.”
About a week later, Jackson texted H.E. and asked him to come over to
his house again. In the text message, Jackson told H.E. “[h]e wanted [H.E.]
to help him get rid of the clothes” he believed he was wearing the night of
Ras’s homicide. When H.E. went over to Jackson’s house, Jackson had
“already gathered” a sweatshirt hoodie, a pair of black “Dickies” pants, a pair
of “darker denim pants,” a pair of black Converse shoes, and a “gray with a
leather stripe pair of [V]ans” shoes in front of his closet. He told Jackson,
“I’m not sure which ones they are, but those are the only ones they could
possibly be.”
Jackson also showed H.E. the knife. It had an approximately nine and
one-half inch serrated blade and a three and one-half inch handle. It had one
sharp edge and one blunt edge. Jackson said he had cleaned it but was not
sure how good a job he had done. It was not the first time Jackson had
shown that knife to H.E. About three weeks to a month earlier, Jackson
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asked H.E. if he wanted “to check out” what he had. Jackson then got the
knife from his room, pulled it out of the sheath, showed it to H.E. and said,
“this is my new knife.”
H.E. put Jackson’s clothing in his backpack. He told Jackson that
“we’ll worry about the knife later,” and left. He kept Jackson’s clothes at his
house for a few days and then threw them in a dumpster in a nearby park.
Around two weeks after getting rid of Jackson’s clothes, H.E. helped
Jackson get rid of the knife. Jackson was scared about being a person of
interest and “wanted to get rid of the stuff.” H.E. drove to Makaela’s house
and picked up Jackson with “the intent to help him get rid of the knife.”
They agreed the best place to dispose of it was in the ocean, so Jackson
suggested they go to Kellogg Beach at Shelter Island.
H.E. drove Jackson to Kellogg Beach. Jackson got out of the car and
walked to the mouth of a path leading to the beach. Less than five minutes
later, Jackson got back into the car and said, “I threw it as hard as I could.”10
H.E. never saw the knife during the car ride. He drove Jackson home and
told Jackson, “to be safe and careful.” That was “one of the last times” H.E.
spoke with Jackson.
3. H.E.’s Admissions
In his interview with Detectives Siemer and Iwasaki on December 22,
2017, H.E. initially denied knowing anything about Ras’s murder. He was
shown photographs of the suspect from the Apple Tree Market surveillance
10 In August 2018, a San Diego Harbor Police Department dive team
searched for the knife in the ocean near Kellogg Beach but was unable to
locate it. The dive team supervisor testified he was “[n]ot at all” surprised,
given the lack of information as to the precise location where the objects had
been thrown, the fact that over a year had passed since the knife was
discarded, and the heavily trafficked nature of the waterways in that area.
19
video, and he claimed he could not recognize the suspect and that “it look[ed]
like a blob.” The detectives asked if H.E. had made a Crime Stoppers tip and
H.E. claimed that he had.
The detectives told H.E., “here’s the deal . . . this hasn’t been the best
year for you. I know you got in a little bit of trouble, right? We didn’t just
randomly pick you to come to talk to you.” The detectives were referencing
the fact that H.E. had recently been released from jail after being convicted of
a misdemeanor assault involving his attack on a homeless person on June 28,
2017. At various points, the detectives made statements to H.E. that he took
as “a veiled accusation” that he was “somehow involved” in Ras’s murder.
The detectives made it “[p]retty clear” to H.E. that they considered
Jackson to be “their number one suspect.” They told H.E. that if he was
trying to “cover up any little thing, . . . any phone call or something . . . it’s all
going to come out in the end.” The detectives told H.E. they didn’t want “to
have something come back on [H.E. if he was] tryin[g] to cover up
something.”
H.E. then told the detectives a few weeks after he “got in trouble,”
Jackson called him “crying.” H.E. went over to see Jackson at his girlfriend’s
house and “smoked a joint with him.” Jackson told H.E. that “he was losin’
it” and “can’t take it no more” because his girlfriend and her parents were
saying, “Oh, I hope they catch the bastard that did this.” Jackson then told
H.E., “I poked that n[-----].” Jackson told H.E. “he was angry so he went out
and he was just . . . lookin’ for something. . . .[f]or trouble, pretty much.” The
detectives asked H.E. if Jackson told him what he did with the knife or his
clothes from the night of Ras’s murder; H.E. said Jackson did not.
H.E. admitted at trial that he lied to the detectives when he denied
recognizing the suspect in the surveillance photographs; he did. He also
20
admitted that he lied when he told the detectives he had made a Crime
Stoppers tip; he had not. H.E. testified he lied to the detectives for several
reasons. He was “scared” that his “other friends would come after [him]” for
testifying against his friend. He had gotten into “trouble” himself around a
week after the homicide for “an attack on a homeless person” and he did not
want to incriminate himself. He had wanted to tell the detectives “the entire
truth” and regretted that he did not.
H.E. testified at the preliminary hearing on August 8, 2018. At trial,
H.E. admitted he had not testified to the whole truth about what happened
and his involvement at the preliminary hearing. H.E. did not disclose at the
preliminary hearing that he helped Jackson get rid of his clothing and the
knife.
H.E. testified that he felt “like shit” when he left the courtroom after
the preliminary hearing because he had not said everything he knew. He
drove home from the preliminary hearing with Wayne. During the drive,
H.E. confided in Wayne that he knew more about Ras’s murder than he
disclosed, including that he helped Jackson get rid of incriminating evidence.
Wayne told H.E. he needed to provide the additional information to the
detectives. Four days later, on August 12, 2018, H.E. gave another statement
to the detectives. This time, H.E. revealed he had helped Jackson get rid of
the knife that Jackson used to stab Ras.
He decided to tell the truth after the preliminary hearing because he
had gotten older and did not “want to do bad guy stuff anymore.” He
“want[ed] to live [his] own life, and this is just something [he] needed to get
completely put behind” and he did not “want to be in somebody else’s
situation.” He felt that what he knew “can really help the case, and it
21
need[ed] to be said.” H.E. testified that “[m]urder isn’t okay . . . when you
have something like that on your mind, it’s hard to keep it inside . . . .”
H.E. testified he did not tell the truth at the preliminary hearing
because he was “scared.” He had been threatened twice for providing
information to law enforcement “[b]y people out in Ocean Beach.” His “name
was put in the newspaper shortly after [the] preliminary hearing” and he
moved out of Ocean Beach “right after” the preliminary hearing. H.E.
testified that people in Ocean Beach will “pretty much beat the shit out of
you” for testifying against someone they know. They would also do
something called “black[ing] out their Ocean Beach,” which meant to cut out
or burn off the person’s Ocean Beach tattoo. H.E. has an Ocean Beach tattoo.
H. Jackson’s Recorded Jail Call
In a recorded call from jail, Jackson told an unidentified person that he
had received copies of his discovery from the criminal case. Jackson
complained that H.E. was “all in my paperwork.” Jackson said, “it’s just a
trip, dog, that [H.E.] would do it for the money, dog, because there was a
reward, I guess.” Jackson said someone should “blackout [H.E.’s] fucking
[O]cean [B]each.”
II.
The Defense Case
A. Testimony of Pierre T.
Pierre T. was working as a bouncer for Winstons on the night of June
21, 2017. He did not witness the stabbing of Ras. Rather, he testified
regarding another event he had seen on Bacon Street approximately 45
minutes to an hour before Ras’s homicide.
At around 11:00 p.m., Pierre was outside Winstons and “walking
around.” While outside, Pierre saw “there was an altercation between
22
whoever the suspect is and Ras” and it involved “bickering back and forth
and running down the street.” He believed “one of the other homeless kids”
was involved. Pierre then testified the “interaction that [he had] seen” only
involved a “group of white guys” and that he could not “specifically say if Ras
was in . . . that group.”
Defense counsel showed Pierre the photographs from the Apple Tree
surveillance video11 and asked if the suspect in the photographs was “one of
the persons” he saw in the argument. Pierre answered, “I can’t 100 percent
say from seeing the photos of the actual suspect. They match, but this
suspect here in the photo is him. . . . But the suspect that I seen, the photo
today didn’t match the person I seen running down the street.”
Defense counsel again asked Pierre if the suspect in the photographs
was “the suspect” he saw at 11:00 p.m. and he answered, “for court purposes,
I don’t think I can say 100 percent that is him . . . .” When asked for his
“level of certainty,” Pierre stated, “5 or 6.” When asked by the prosecutor,
Pierre testified he was “not . . . close at all” to being able to confirm that the
person he saw at 11:00 p.m. was the person in the Apple Tree photographs.
Pierre testified that Jackson, as he appeared in the courtroom during
trial, was not the person Pierre saw on Bacon Street at 11:00 p.m.
B. Other Defense Witnesses
Jackson’s sister, Melissa A., testified she never met Ras and has never
had someone spit on her.
11 The photographs shown to Pierre were taken from video footage
recorded by a second camera installed at Apple Tree. While the other camera
showed the parking lot, this camera showed the sidewalk on Newport Avenue
immediately in front of the business. Footage from this camera captured the
suspect as he walked westbound past the market.
23
The parties stipulated that, at approximately 8:30 a.m. on June 22,
2017, Officer Patrick Cooley recovered and booked into evidence “a light gray
hood[ed]” sweatshirt that was “left on top of the newspaper box in front of” a
business on Bacon Street.
A DNA criminalist with the San Diego Police Department crime
laboratory analyzed the sweatshirt recovered by Officer Cooley for DNA
evidence. She concluded that Jackson was excluded as a contributor to the
“mixture of DNA” detected on the sweatshirt. The sweatshirt was a size
small and the majority contributor of DNA detected on the sweatshirt was
female.
DISCUSSION
I.
No Error in Limitation of Cross-Examination
Jackson contends the trial court erroneously precluded his counsel from
cross-examining H.E. on the details of H.E.’s misdemeanor assault
conviction, and about a purported sexual advance H.E. made on Jackson. He
argues the error violated his state and federal constitutional rights to
confrontation of witnesses and presentation of a defense. We address these
arguments separately and conclude each lacks merit.
A. H.E.’s Misdemeanor Assault Conviction
1. Additional Background
Before jury selection, the prosecution moved in limine to exclude
evidence of H.E.’s misdemeanor conviction for an assault, in violation of
section 245, subdivision (a)(4), including the underlying facts, under Evidence
Code section 352. The conviction stemmed from H.E.’s assault of a homeless
man on June 28, 2017, wherein H.E. confronted the homeless man because he
24
was wearing a red shirt and H.E. believed that was “disrespect[ful] to the
‘Hell’s Angels.’ ”
Jackson opposed the motion. He argued the conviction was relevant
and admissible to explain H.E.’s state of mind when he was questioned by the
detectives on December 22, 2017, to show H.E. was afraid of going back to jail
and was motivated to please the police by providing false testimony against
Jackson. He also argued the conviction qualified as a crime of moral
turpitude and was relevant to H.E.’s credibility.
The trial court excluded reference of the misdemeanor conviction as not
relevant but ruled defense counsel would be permitted to cross-examine H.E.
about any fact of H.E.’s underlying conduct in the assault if the detectives
used that particular fact in questioning H.E. The court reasoned that “its
relevance is what the detective said to the witness and what impact that
might have had on the witness.” The court indicated that if certain facts,
such as the red Hells Angels shirt, were raised by the detectives, defense
counsel would be permitted to ask about them. However, “[i]f the shirt was
never mentioned during the interview, and that it was the Hells Angels and
the colors, then it is not appropriate to inquire.”
At trial, Jackson’s counsel cross-examined H.E. at length and
repeatedly impeached H.E. on the inconsistencies and H.E.’s admissions of
his untruthfulness in his statements during the December 22, 2017 police
interview, at the preliminary hearing, and at trial. When he testified at trial,
H.E. admitted more than 15 times that he had lied.
Defense counsel elicited testimony from H.E. that he assaulted a
homeless person. H.E. testified:
“Q: Is it correct that at that first interview that occurred three
days before Christmas, December 22 of 2017, you were afraid
25
when the detectives talked to you because of a previous incident
in which you had been involved?
“A: Yes.
“Q: Because that previous incident in which you had been
involved -- involved an attack on a homeless person, correct?
“A: Yes, sir.”
Defense counsel further elicited testimony from H.E. that the
detectives used the fact of his assault on a homeless person in their
questioning of him and that caused H.E. to feel afraid and intimidated. H.E.
testified:
“Q: [The detective] said, ‘I’ll be honest with you, just as an
outsider looking in, so far, you’ve been cooperative and
everything. And I’m taking you at your word, but as an outsider
looking in, you have a homeless guy who’s killed, a key person of
interest, our probably number one suspect is a buddy of yours.’
[¶] Do you remember that?
“A: Yes.
“Q: And you acknowledged what [the detective] said
throughout by saying, ‘Yeah, yeah’?
“A: Yes.
“Q: Then [the detective] says, . . .‘Three days after this
homeless guy’s killed, you’re involved in an incident where a
homeless guy is either, I know that you have your side to that
story how that went down, but you’re involved in what ends up
being considered a robbery of a homeless guy.’ [¶] [The detective]
said that you?
“A: Yes.
26
“Q: And when you heard that, you understood that he was
suggesting that what you had been involved in was, to his mind,
similar to the homicide?
“A: Yes.”
H.E. admitted the detectives made him feel “afraid” and “intimidated.”
Defense counsel elicited from H.E. that he “had just gotten out of jail” at the
time he spoke to detectives on December 22, 2017, and he “did not want to go
back.”
Defense counsel also established that the detectives had told H.E. their
investigation of the murder was not finished, and that H.E. surmised from
this statement that any further investigation might involve him. H.E. agreed
with defense counsel that he understood during the interview that “[the
detectives] wanted [H.E.] to say something incriminating about [Jackson].”
2. Analysis
Jackson argues the restrictions the trial court placed on his counsel’s
cross-examination of H.E. violated his state and federal constitutional rights
to confront witnesses and to present a defense. He appears to contend the
violations arose from the court’s refusal to allow his counsel to question H.E.
about the fact that H.E. “was so upset over a homeless man wearing a Hells
Angels shirt that he felt compelled to assault the man and steal the shirt.”
A defendant’s right to be confronted by the witnesses against him and
to present a defense are guaranteed by the federal and California
Constitutions. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 15,
24.) However, the right to cross-examination of witnesses is not unlimited.
(People v. Sully (1991) 53 Cal.3d 1195, 1219.) “[N]ot every restriction on a
defendant’s desired method of cross-examination is a constitutional
violation.” (People v. Chatman (2006) 38 Cal.4th 344, 372 (Chatman).)
27
“Although the right of confrontation includes the right to cross-examine
adverse witnesses on matters reflecting on their credibility, ‘trial judges
retain wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on such cross-examination.’ ” (People v.
Quartermain (1997) 16 Cal.4th 600, 623 (Quartermain), quoting Delaware v.
Van Arsdall (1986) 475 U.S. 673, 679 (Van Arsdall); accord Chatman, supra,38 Cal.4th at p. 372.) “In particular, notwithstanding the confrontation
clause, a trial court may restrict cross-examination of an adverse witness on
the grounds stated in Evidence Code section 352.” (Quartermain, supra, 16
Cal.4th at p. 623; see People v. Hovarter (2008) 44 Cal.4th 983, 1010
(Hovarter) [“The ‘routine application of state evidentiary law does not
implicate [a] defendant’s constitutional rights.’ ”].)
Trial courts have broad discretion to impose reasonable limits on cross
examination “based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” (Van Arsdall, supra, 475 U.S. at p.
679; see People v. Pearson (2013) 56 Cal.4th 393, 454 (Pearson) [“trial courts
have broad discretion ‘ “to prevent criminal trials from degenerating into
nitpicking wars of attrition over collateral credibility issues . . . .” ’ ”].) A trial
court’s discretionary decision under Evidence Code section 352 “ ‘to exclude
evidence of marginal impeachment value that would entail the undue
consumption of time generally does not contravene a defendant’s
constitutional rights to confrontation and cross-examination.’ ” (Pearson,
supra, 56 Cal.4th at p. 455.)
Moreover, “[a] trial court’s limitation on cross-examination pertaining
to the credibility of a witness does not violate the confrontation clause unless
a reasonable jury might have received a significantly different impression of
28
the witness’s credibility had the excluded cross-examination been permitted.”
(Quartermain, supra, 16 Cal.4th at pp. 623–624; accord People v. Whisenhunt
(2008) 44 Cal.4th 174, 208 (Whisenhunt).) Thus, “unless the defendant can
show that the prohibited cross-examination would have produced ‘a
significantly different impression of [the witnesses’] credibility’ (Van Arsdall,
supra, 475 U.S. at p. 680), the trial court’s exercise of its discretion in this
regard does not violate the Sixth Amendment.” (Chatman, supra, 38 Cal.4th
at p. 372.)
The People first contend Jackson forfeited his constitutional challenge
by failing to object on constitutional grounds in the trial court. We disagree.
“ ‘[A]s a general matter, no useful purpose is served by declining to consider
on appeal a claim that merely restates, under alternative legal principles, a
claim otherwise identical to one that was properly preserved by a timely
motion that called upon the trial court to consider the same facts and to apply
a legal standard similar to that which would also determine the claim raised
on appeal.’ ” (People v. Partida (2005) 37 Cal.4th 428, 436 (Partida), quoting
People v. Yeoman (2003) 31 Cal.4th 93, 117.)
Thus, where a defendant asserts an objection to particular evidence on
state law grounds at trial but fails to assert a constitutional violation, the
state law objection will preserve a “narrow” constitutional challenge to
admission of the evidence. (Partida, supra, 37 Cal.4th at p. 435.) Jackson
argued at trial that evidence of the facts of H.E.’s misdemeanor offense was
relevant to H.E.’s credibility and his bias against Jackson and motive to lie.
Under Partida, Jackson may argue for the first time on appeal that the
court’s asserted error in declining to allow questioning about the details of
the assault had the “additional legal consequence” of violating his due process
and confrontation clause rights. (Ibid.)
29
We conclude, however, that no constitutional violation occurred.
Jackson elicited most of the details of H.E.’s assault. The jury was informed
that, “[t]hree days after” Ras was killed, H.E. had “attack[ed]” and committed
“a robbery of a homeless guy.” The jury was also informed that H.E. served
time in jail for the offense. Further, the jury heard H.E. admit that the fact
of his offense and the use of it by the detectives influenced him during his
police interview. He admitted he lied to the detectives out of fear he would be
perceived as the perpetrator. He acknowledged he was afraid of going back to
jail and had told the detectives what he thought they wanted to hear.
To the extent Jackson argues he should have been permitted to elicit
the additional detail that H.E. assaulted the homeless person because the
person was wearing a Hells Angels shirt, we conclude that additional
information would not have given the jury a significantly different impression
of H.E.’s credibility. And to the extent that Jackson argues the jury should
have further heard H.E. suffered a misdemeanor conviction as a result of his
assault, we conclude the trial court properly excluded that fact. Under People
v. Wheeler (1992) 4 Cal.4th 284, evidence of a misdemeanor conviction is
inadmissible hearsay when offered to impeach a witness’s credibility. (Id. at
p. 300; see 3 Witkin, Cal. Evidence (5th ed. 2020) § 306, p. 429.)12
Finally, we do not perceive a due process violation. Although Jackson
asserts that his right to present a defense was violated, he fails to elaborate
or present separate argument in support of this constitutional claim. We
need not further address Jackson’s boilerplate assertion of a due process
violation. (Hovarter, supra, 44 Cal.4th at p. 1010 [“As defendant provides no
12 At oral argument, Jackson’s counsel argued for the first time that
certain additional purported facts of the offense were also improperly
excluded from the scope of cross-examination. On examining the record, we
see no indication these allegations were ever proven.
30
elaboration or separate argument for these constitutional claims, we decline
to address further these boilerplate contentions.”].) Moreover, even if
Jackson had not forfeited this claim due to his deficient briefing, we would
reject it. The “ ‘routine application of state evidentiary law does not implicate
[a] defendant’s constitutional rights.’ ” (Ibid.; Partida, supra, 37 Cal.4th at p.
439 [“[T]he admission of evidence, even if erroneous under state law, results
in a due process violation only if it makes the trial fundamentally unfair.”].)
The limitation the court placed on defense counsel’s questioning qualified as
a routine and appropriate exercise of its discretion under Evidence Code
section 352 and did not make Jackson’s trial fundamentally unfair.
B. The Alleged Sexual Advance
1. Additional Background
At trial, in the middle of his cross-examination of H.E. and out of the
jury’s presence, defense counsel sought to question H.E. about a sexual
advance H.E. had purportedly made on Jackson during the summer of 2017.
Defense counsel claimed the advance had been upsetting to Jackson and that
Jackson “let [H.E.] know that, and there was some riff between the two as a
result of it.” Counsel indicated he wanted to question H.E. about this
incident to show H.E. was biased against Jackson “because his sexual
overture was rejected.” Defense counsel also informed the court the defense
had received a “download” from H.E.’s cell phone that showed H.E. had made
sexual “overtures to both men and women on the internet” and that he was
“sexually omnivorous.”
The prosecutor objected, responding that there was no evidence of
H.E.’s alleged bisexuality other than the phone data, and no evidence of
anything “targeted at Mr. Jackson.” He noted that at the preliminary
hearing, defense counsel had asked H.E. about the alleged sexual advance
31
and H.E. denied it. The prosecutor argued there was no indication of
hostility between the two men arising from any alleged rejected sexual
advance. He argued that even Jackson believed H.E.’s motive to testify
against him was financial, not any purported rebuffed sexual advance,
because Jackson stated in a recorded jail call that H.E. “must have done it for
the money.” Finally, the prosecutor argued that H.E.’s alleged sexual
orientation had no tendency to show that he would have “frame[d] Mr.
Jackson for murder.”
Defense counsel responded that “it is not [H.E.’s sexual] orientation as
a general matter” that was relevant but “the fact that he made an overture”
to Jackson. The court asked defense counsel, “the question is can you
impeach [H.E.] if he denies it?” Defense counsel responded, “[w]ell, if he says
no, I would never do such a thing, I can definitely impeach him with the
various emails he sent to men on the internet.”
The court ruled that “[o]n a 352 analysis, I will not allow inquiry into
that” and that on balance, “it is not probative and it is potentially prejudicial,
unfortunately, in this day and age, still.”
2. Analysis
Jackson contends his confrontation and due process rights were
violated by the trial court’s refusal to allow his counsel to ask H.E. about the
allegedly rejected sexual advance.
The People respond that defense counsel’s offer of proof at trial was
insufficient to preserve the issue for appeal. The People further argue that
evidence of the alleged encounter, even if it existed, would not have produced
a significantly different impression of H.E.’s credibility. We agree.
We first conclude that Jackson’s counsel’s offer of proof was inadequate
to preserve a claim of error arising from the court’s decision to preclude him
32
from cross-examining H.E. about the alleged sexual advance rejected by
Jackson. “If the evidence the defendant seeks to elicit on cross-examination
is not within the scope of the direct examination, an offer of proof is required
to preserve the issue.” (People v. Foss (2007) 155 Cal.App.4th 113, 127
(Foss).) The offer of proof “ ‘must set forth the actual evidence to be produced
and not merely the facts or issues to be addressed and argued. [Citations.]’ ”
(Id. at p. 128, quoting People v. Schmies (1996) 44 Cal.App.4th 38, 53.) “ ‘The
offer of proof serves to inform the appellate court of the nature of the evidence
that the trial court refused to receive in evidence . . . . The function of an
offer of proof is to lay an adequate record for appellate review . . . .’ ”
(Nienhouse v. Superior Court (1996) 42 Cal.App.4th 83, 93–94.) An offer of
proof that is conclusory or that only addresses the area of questioning will be
deemed insufficient to preserve the issue for appeal. (Foss, supra, 155
Cal.App.4th at p. 128.)
Here, defense counsel’s proposed questions about the alleged rejected
sexual advance were not within the scope of H.E.’s direct examination. And
yet defense counsel provided no indication that evidence of a sexual advance
on Jackson, Jackson’s refusal of that advance, or resulting hostility between
Jackson and H.E., would be elicited in response to his questioning. The only
evidence defense counsel was able to proffer was the phone data purportedly
indicating H.E. had made sexual overtures to other men and women on the
internet. As defense counsel acknowledged, however, H.E.’s sexual
orientation was not relevant to establishing alleged hostility toward Jackson
33
or motive to lie.13 Apart from the phone data, the remainder of defense
counsel’s proffer merely focused on the lines of questioning he wanted to
pursue. Accordingly, defense counsel’s offer of proof was inadequate to
preserve the issue for appeal. (See Foss, supra, 155 Cal.App.4th at pp. 123,
127–128 [holding a defense offer of proof that a child molestation victim’s
mother expressed concern to the victim about finding child pornography on
defendant’s computer, and asked the victim if she had been molested,
insufficient because it did not “give a specific offer of proof of evidence to be
produced”].)
Moreover, even if we assume for the sake of argument that this claim of
error was properly preserved, we would still find no violation of Jackson’s
right of confrontation. Jackson contends the evidence of his rejection of H.E.
would have established that H.E. had a motive to lie about Jackson’s
culpability. However, as we have discussed, H.E.’s credibility was amply
explored at trial. The inference that any riff arising from an allegedly
13 Jackson requested transmittal to this court of a defense exhibit filed
under seal in support of his new trial motion. The exhibit purportedly relates
to Harrison’s cell phone data. Jackson states we should consider this exhibit
in determining whether the trial court erred in precluding his counsel from
asking Harrison about the alleged sexual advance. We decline to do so. One
of the general principles of appellate law is that we review “only those
matters which were before the lower court when it made its decision.”
(Ramis v. Superior Court (1977) 74 Cal.App.3d 325, 332.) An appellate court
must assess a trial court’s evidentiary ruling “based on the facts made known
to the court when it was asked to make the ruling.” (People v. Hartsch (2010)
49 Cal.4th 472, 491; People v. Hernandez (1999) 71 Cal.App.4th 417, 425
(Hernandez).) “To do otherwise would require us to hold the trial court to an
impossible standard.” (Hernandez, at p. 425.) Jackson provides no indication
the trial court had the benefit of this exhibit at trial. Since this evidence was
not before the court at the time it ruled, we cannot rely on it to evaluate the
validity of the court’s ruling.
34
rejected sexual advance was so serious as to bias H.E. against Jackson was
undermined by Jackson’s recorded call from jail in March of 2018, during
which he surmised that H.E.’s incentive for incriminating Jackson was a
financial reward and did not mention the purported interpersonal conflict or
sexual rejection as a possible motivation. The additional impeachment value
of the excluded evidence was minimal in relation to the areas of impeachment
already raised by the admitted evidence. (See, e.g., Whisenhunt, supra 44
Cal.4th at pp. 207–208 [upholding trial court’s decision excluding testimony
concerning alleged affairs on the ground its impeachment value was
“minimal in relation to the major areas of impeachment already raised by the
admitted evidence”].) A reasonable jury would not have received a
significantly different impression of H.E.’s credibility even if the proffered
evidence had been admitted.
As we have noted, Jackson’s due process claim is unelaborated and is
thus insufficient to demonstrate error. (Hovarter, supra, 44 Cal.4th at p.
1010 [“As defendant provides no elaboration or separate argument for these
constitutional claims, we decline to address further these boilerplate
contentions.”].)
Because we conclude no error arose from the trial court’s rulings
limiting the scope of defense counsel’s cross-examination, we need not and do
not address whether any such errors were harmless under Chapman v.
California (1967) 386 U.S. 18 (Chapman). (See Van Arsdall, supra, 475 U.S.
at p. 684 [holding that “the constitutionally improper denial of a defendant’s
opportunity to impeach a witness for bias, like other Confrontation Clause
errors, is subject to Chapman harmless-error analysis”].)
35
II.
No Error in Exclusion of Third Party Culpability Evidence
A. Additional Background
In another motion in limine, the prosecution sought to preclude
Jackson from introducing third party culpability evidence. The prosecutor
explained that law enforcement had investigated any person mentioned in a
Crime Stoppers tip or suggested by a citizen in response to released
photographs of the suspect, but had found no evidence connecting such
individuals to the homicide. Jackson opposed the motion, and sought to
introduce evidence of third party culpability as to three individuals:
Matthew A., Nathan C., and Michael T.14
The trial court heard arguments on third party culpability on two
separate days before trial. In support of his request to admit such evidence,
Jackson filed under seal the booking records, including booking photographs,
of Matthew, Nathan, Michael, and a report of a call to Crime Stoppers
regarding Michael on June 25, 2017. At the hearing, Defense counsel stated
he intended to present the booking photographs at trial and compare them to
the images of the suspect in the Crime Stoppers flyer.
First, as to Matthew, Jackson proffered he was a homeless man known
to frequent the area where the homicide occurred and who had allegedly been
detained on June 10, 2017, for threatening passersby with a knife. Defense
counsel proffered that Pierre, the bouncer at Winstons, would testify that
14 Jackson sought to introduce evidence as to a fourth unidentified male
and proffered that, “[i]n late 2017, staff at Hodad’s caught a man trying to
steal from the employee tip jar” and “[p]eople believed that the accused thief
resembled the murder suspect.” The trial court excluded the proffered
evidence of this fourth alternate suspect, but Jackson does not appeal this
ruling.
36
Matthew was at the scene of the crime with a knife an hour before the
homicide. Defense counsel further elaborated that Pierre and another
witness would establish that Matthew had confronted a “group” at 11:00 p.m.
in front of Winstons, and he would argue from this evidence that Matthew
left the location, returned with a knife, and took revenge on Ras.
Second, as to Nathan, Jackson proffered that a witness interviewed by
detectives had stated Nathan resembled the surveillance footage of the
suspect, and that Nathan was “crazy, mad, and addicted to drugs” and had
frequented “the Ocean Beach area” during the summer of 2017. Defense
counsel noted that booking records showed that Nathan had been detained or
arrested in May 2017 for causing a violent disturbance and for battery, and
that the offense occurred one block from the location of the homicide.
Third, as to Michael, Jackson proffered that an anonymous informant
had reported that he or she recognized Michael based on the surveillance
footage of the suspect, and that Michael lived “nearby” in Ocean Beach.
Defense counsel asserted that booking records showed Michael had “a long
criminal history,” including convictions for assault with a deadly weapon.
Defense counsel argued that Michael’s similarity in appearance to the
suspect, residence in the neighborhood of the homicide, and “violent criminal
history” made him a suspect of the homicide.
Defense counsel also asserted there was a detective’s note indicating
that a “witness had said something to the effect of I know that [Michael] had
had an argument with the decedent.” The trial court asked, “what’s the basis
of knowledge of that person’s belief? And when did this apparent argument
occur in relationship to the homicide?” Defense counsel responded that he
did not know but was “reaching out to try to speak to that person.”
37
On the subject of Michael’s similarity in appearance to the suspect, the
trial judge informed the parties he was familiar with Michael, having had
“both Michael . . . and his identical twin brother for extended periods of time”
appear before him in another case, and knew Michael to have a tattoo on his
neck. The judge then said to defense counsel, “if the argument is based in a
significant degree on the similarity and [sic] appearance, that’s difficult to
make, especially with the tattoo.” Defense counsel responded, “[s]o to my
mind, appearance is the most important thing. So if Your Honor’s finding,
based on a review of the factual submission, is no, that is not physically
similar, then I have nothing further to argue.” Defense counsel then stated
that Michael’s tattoo was “on the left-hand side of the neck,” and the left side
of the suspect’s neck was not visible in any surveillance video. The judge
agreed on the placement of Michael’s tattoo but noted that “no witnesses said
the stabber had a tattoo on the neck.”
At the conclusion of the attorney’s arguments, the trial court excluded
the proffered evidence as to Michael and Nathan, stating it did not “see any
basis for third party culpability” as to these persons. The court reserved its
decision as to Matthew until it heard the evidence at trial, but tentatively
ruled there was “an insufficient nexus of relevant evidence” of his alleged
culpability. At trial, before the defense rested its case, Jackson withdrew his
request to introduce the evidence as to Matthew but renewed his request to
admit evidence regarding Michael and Nathan, without additional argument.
The trial court confirmed its ruling to exclude evidence as to Michael
and Nathan, stating that “listening to the evidence doesn’t change the
argument and the analysis,” and confirmed that Jackson was “withdrawing
the request to have Matthew . . . presented to the jury as a third party
culpability suspect.” Defense counsel responded, “That is correct.”
38
B. Analysis
Jackson argues the trial court violated his constitutional right to
present a defense when it precluded him from presenting evidence of other
individuals’ culpability for the homicide. We conclude the claim has no merit.
1. Any Assertion of Error as to Excluded Evidence of Matthew Is
Forfeited
As a preliminary matter, we conclude that Jackson has forfeited any
claim of error arising from the trial court’s “tentative” exclusion of evidence
relating to Matthew as a culpable third party. Jackson expressly withdrew
his request to admit evidence of Matthew’s culpability before the court ruled
on the matter. He has, therefore, forfeited any contention that the failure to
admit evidence of Matthew’s culpability was attributable to an erroneous
ruling from the court. “ ‘[F]ailure 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.’ ” (People v. Valdez (2012) 55 Cal.4th 82, 143; see People v. Morris
(1991) 53 Cal.3d 152, 195 [defendant forfeited appellate challenge to
admission of testimony by failing “to press for” a ruling “until he obtained
one”], disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th
824, 830, fn. 1.)
2. The Court Did Not Err in Excluding Evidence Relating to Michael
and Nathan
Next, we consider the trial court’s decision to exclude the proffered
evidence relating to Michael and Nathan. The court found an insufficient
connection between the proffered evidence and Ras’s homicide.
For third party culpability evidence to be admissible, “ ‘there must be
direct or circumstantial evidence linking the third person to the actual
perpetration of the crime.’ ” (People v. Avila (2006) 38 Cal.4th 491, 578
39
(Avila), quoting People v. Hall (1986) 41 Cal.3d 826, 833 (Hall).) “[E]vidence
that another person had a motive or opportunity to commit the crime,
without more, is irrelevant because it does not raise a reasonable doubt about
a defendant’s guilt: to be relevant, the evidence must link this third person
to the actual commission of the crime.” (People v. Brady (2010) 50 Cal.4th
547, 558 (Brady).)
The trial court’s rulings on the relevance and admissibility of evidence
are reviewed for an abuse of discretion.15 (Brady, supra, 50 Cal.4th at p.
558; accord Avila, supra, 38 Cal.4th at p. 578.) Our high court has
“repeatedly upheld the exclusion of third party culpability evidence when the
third party’s link to a crime is tenuous or speculative.” (Turner, supra, 10
15 Jackson acknowledges that exclusion of third party culpability evidence
is reviewed for an abuse of discretion. However, citing two cases, Thompson
v. Keohane (1995) 516 U.S. 99, 111 (Thompson) and People v. Cromer (2001)
24 Cal.4th 889, 895 (Cromer), Jackson argues that because he claims the
evidentiary ruling violated his constitutional rights, our review should be
independent. We disagree that the cited authorities support Jackson’s
position. Thompson held that a custody determination for purposes of
Miranda v. Arizona (1966) 384 U.S. 436 is a mixed question of law and fact
requiring independent review by a federal court presented with a writ of
habeas corpus under 28 U.S.C. § 2254. (Thompson, supra, 516 U.S. at pp.
112–116.) In Cromer, our high court held that whether reasonable diligence
was used to obtain the presence of an absent witness at trial for purposes of
admitting recorded testimony was a mixed question of law and fact subject to
independent review under Thompson. (Cromer, supra, 24 Cal.4th at pp. 894–
903.) Neither of these cases stands for the proposition that a trial court’s
evidentiary ruling excluding third party culpability evidence is reviewed
independently where it implicates a constitutional right. As recently as
People v. Turner (2020) 10 Cal.5th 786, 815–818 (Turner), our high court
reviewed the exclusion of third party culpability evidence at trial for an abuse
of discretion, notwithstanding that the defendant asserted the error was of
constitutional dimension. Jackson does not provide a basis for avoiding this
controlling authority.
40
Cal.5th at p. 817, citing People v. Page (2008) 44 Cal.4th 1, 38–39 (Page),
People v. Lewis (2001) 26 Cal.4th 334, 373, and People v. Alcala (1992) 4
Cal.4th 742, 792–793.)
Here, Jackson’s appellate briefing is inadequate and fails to establish
an abuse of discretion. He merely asserts in perfunctory fashion that “[t]he
evidence in [his] case was neither too speculative nor too remote, as will be
explained” and that “[t]he evidence” “was highly relevant, created a
reasonable doubt, and was not unduly prejudicial, speculative, time
consuming or confusing.” His most detailed argument is that the “other
suspects . . . fit the description as well or better than [Jackson] did of the
suspect, . . . were known around Ocean Beach as people who committed
gratuitous acts of violence, and . . . were turned in to police by people who
knew them and suspected them” of the murder. However, these assertions
are unaccompanied by citations to the record.
“Mere suggestions of error without supporting argument or authority
other than general abstract principles do not properly present grounds for
appellate review.” (Department of Alcoholic Beverage Control v. Alcoholic
Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078.)
Arguments that are “unsupported by ‘adequate factual or legal analysis’ ” on
appeal are forfeited. (Singh v. Lipworth (2014) 227 Cal.App.4th 813, 817.)
Likewise, an appellant that fails to cite the record forfeits the issue or
argument on appeal that is presented without the record reference. (City of
Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239; Del Real v. City of
Riverside (2002) 95 Cal.App.4th 761, 768 [“[I]t is counsel’s duty to point out
portions of the record that support the position taken on appeal. The
appellate court is not required to search the record on its own seeking
error.”].) Jackson’s arguments fall short of these standards, and as a result,
41
his claim of error arising from the exclusion of third party culpability
evidence is forfeited.
Moreover, even if not forfeited, Jackson’s contentions lack merit. The
evidence proffered by the defense did not link Michael or Nathan “to the
actual perpetration of the crime.” (Hall, supra, 41 Cal.3d at p. 833.) Michael
reportedly resided in Ocean Beach, was similar in appearance to the suspect,
and had a criminal record that included assault with a deadly weapon.
However, “[e]vidence of a third party’s prior crimes is inadmissible to
establish the third party’s criminal propensity.” (People v. Elliott (2012) 53
Cal.4th 535, 580 (Elliott).) No admissible evidence actually linking Michael
to the homicide was identified.16
The court disagreed with the position that Michael was physically
similar to the suspect, a conclusion Jackson did not specifically dispute in the
trial court and has not disputed on appeal. Even if there was a resemblance,
that fact plus Michael’s purported local residence did not actually link him to
Ras’s murder. (See Brady, supra, 50 Cal.4th at p. 558 [reasoning that
although eyewitness accounts described the perpetrator of a police murder as
an Asian male, together with a clue referring to an Asian male who had
killed two members of a nearby police department, which “might have
suggested some involvement” of the Asian male in the murder at issue, there
16 Jackson does not argue that the detective’s note about a witness report
of an argument between Michael and Ras was admissible evidence, nor do we
perceive that it was. Defense counsel had not spoken to the witness and was
unable to confirm the basis of the witness’s knowledge, nor did counsel
identify a means for overcoming the hearsay problems associated with the
proposed evidence. We find no abuse of discretion based on this tenuous offer
of proof. (See People v. Huggins (1986) 182 Cal.App.3d 828, 833 [“Hall did
not undertake to repeal the Evidence Code. Incompetent hearsay is as
inadmissible as it always was.”].)
42
was no abuse of discretion in excluding the proffered evidence, because
“defendant presented no evidence actually linking this person” to the
murder].)
The proffered evidence of Nathan’s alleged culpability was similarly
deficient. The defense indicated that a witness believed Nathan resembled
the surveillance footage of the suspect, frequented the Ocean Beach area, and
had a recent history of being detained or arrested for acts of violence. Again,
however, evidence of Nathan’s prior criminal conduct was inadmissible to
establish his criminal propensity. (Elliott, supra, 53 Cal.4th at p. 580.) Even
assuming it is true that Nathan resembled the suspect and spent time in
Ocean Beach during the summer of 2017, this evidence did not connect
Nathan to the actual perpetration of the offense. (Hall, supra, 41 Cal.3d at p.
833; Brady, supra, 50 Cal.4th at p. 558.)
Accordingly, the trial court did not abuse its discretion in excluding
Jackson’s third party culpability evidence. The trial court’s decision to
exclude the proffered evidence was an appropriate exercise of its discretion to
exclude irrelevant evidence, and therefore did not violate Jackson’s
constitutional rights. “As a general matter, the ordinary rules of evidence do
not impermissibly infringe on the accused’s right to present a defense.” (Hall,
supra, 41 Cal.3d at p. 834; accord Turner, supra, 10 Cal.5th at p. 818.)
“Although a defendant is constitutionally entitled to present ‘a complete
defense’ [citation], that right does not encompass the ability to present
evidence unfettered by evidentiary rules [citation].” (People v. Shorts (2017)
9 Cal.App.5th 350, 358 (Shorts).)
Instead, “the Constitution permits judges ‘to exclude evidence that is
“repetitive . . . , only marginally relevant” or poses an undue risk of
“harassment, prejudice, [or] confusion of the issues.” ’ ” (Holmes v. South
43
Carolina (2006) 547 U.S. 319, 326–327 (Holmes).) “A specific application of
this principle is found in rules regulating the admission of evidence proffered
by criminal defendants to show that someone else committed the crime with
which they are charged.” (Id. at p. 327.) “When a trial court exercises its
discretion to exclude evidence and does not abuse that discretion, the
exclusion of the evidence (including proffered third party culpability
evidence) does not impermissibly infringe on a defendant’s federal
constitutional rights.” (Shorts, supra, 9 Cal.App.5th at pp. 358–359.) Here,
the court’s ruling was based on routine application of the rules relating to the
relevance of third party culpability evidence and did not result in a
constitutional violation.
Jackson intimates that the trial court’s ruling ran afoul of Holmes,
which “found a federal constitutional violation resulting from a rule of
evidence that precluded the defendant from introducing third party
culpability evidence when there is strong evidence of the defendant’s guilt.”
(Page, supra, 44 Cal.4th at p. 37, fn. 16, discussing Holmes, supra, 547 U.S.
319.) We disagree. The trial court’s ruling was based not on the perceived
strength of the prosecution’s case but on the lack of a sufficient basis
connecting the third parties with the commission of the murder. “The court’s
reasonable application of the rules of evidence to exclude irrelevant and
potentially misleading information did not deprive [Jackson] of his
constitutional rights.” (Turner, supra, 10 Cal.5th at p. 818.)
Because we conclude no constitutional violation arose from the court’s
decision to exclude evidence of Michael and Nathan’s culpability, we need not
and do not address whether the alleged error was prejudicial.
44
III.
No Instructional Error
The trial court refused Jackson’s request to instruct the jury with
CALCRIM 570 on the lesser included offense of voluntary manslaughter
committed in a sudden quarrel or heat of passion. Jackson contends the
court’s refusal to give the instruction violated his state and federal
constitutional rights to due process and trial by jury and requires reversal.
We find no instructional error by the court and, therefore, no violation of
Jackson’s constitutional rights.
“ ‘ “[I]n criminal cases, even in the absence of a request, the trial court
must instruct on the general principles of law relevant to the issues raised by
the evidence.” ’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154
(Breverman).) “This obligation includes giving instructions on lesser included
offenses when the evidence raises a question whether all the elements of the
charged offense were present, but not when there is no evidence the offense
was less than that charged.” (People v. Moye (2009) 47 Cal.4th 537, 548
(Moye).) “The trial court must so instruct even when, as a matter of trial
tactics, a defendant not only fails to request the instruction, but expressly
objects to its being given.” (Ibid.)
“A trial court must instruct on a lesser included offense if substantial
evidence exists indicating that the defendant is guilty only of the lesser
offense.” (People v. Manriquez (2005) 37 Cal.4th 547, 584 (Manriquez).) “As
[the California Supreme Court’s] prior decisions explain, the existence of ‘any
evidence, no matter how weak’ will not justify instructions on a lesser
included offense, but such instructions are required whenever evidence that
the defendant is guilty only of the lesser offense is ‘substantial enough to
merit consideration’ by the jury.” (Breverman, supra, 19 Cal.4th at p. 162.)
45
“ ‘Substantial evidence’ in this context is “ ‘evidence from which a jury
composed of reasonable [persons] could . . . conclude[ ]’ ” that the lesser
offense, but not the greater, was committed.’ ” (Ibid.) “[S]ubstantial evidence
to support instructions on a lesser included offense may exist even in the face
of inconsistencies presented by the defense itself.” (Id. at pp. 162–163.) “In
deciding whether there is substantial evidence of a lesser offense, courts
should not evaluate the credibility of witnesses, a task for the jury.” (Id. at p.
162.) Rather, the evidentiary support for a heat of passion instruction is
considered in the light most favorable to the accused. (See Manriquez, supra,37 Cal.4th at p. 585; People v. Wright (2015) 242 Cal.App.4th 1461, 1483
(Wright).)
“ ‘Murder is the unlawful killing of a human being with malice
aforethought. (§ 187, subd. (a).) A defendant who commits an intentional
and unlawful killing but who lacks malice is guilty of . . . voluntary
manslaughter. (§ 192.)’ [Citation.] Generally, the intent to unlawfully kill
constitutes malice. [Citations.] ‘But a defendant who intentionally and
unlawfully kills lacks malice . . . in limited, explicitly defined circumstances:
either when the defendant acts in a “sudden quarrel or heat of passion” (§
192, subd. (a)), or when the defendant kills in “unreasonable self-defense”—
the unreasonable but good faith belief in having to act in self-defense
[citations].’ [Citation.] Because heat of passion and unreasonable self-
defense reduce an intentional, unlawful killing from murder to voluntary
manslaughter by negating the element of malice that otherwise inheres in
such a homicide [citation], voluntary manslaughter of these two forms is
considered a lesser necessarily included offense of intentional
murder [citation].” (Breverman, supra, 19 Cal.4th at pp. 153–154.)
46
“A heat of passion theory of manslaughter has both an objective and a
subjective component.” (Moye, supra, 47 Cal.4th at p. 549.) “ ‘ “To satisfy the
objective or ‘reasonable person’ element of this form of voluntary
manslaughter, the accused’s heat of passion must be due to ‘sufficient
provocation.’ ” ’ ” (Ibid.) “The provocation must be such that an average,
sober person would be so inflamed that he or she would lose reason and
judgment. Adequate provocation and heat of passion must be affirmatively
demonstrated.” (People v. Lee (1999) 20 Cal.4th 47, 60 (Lee).) “The
provocative conduct by the victim may be physical or verbal, but the conduct
must be sufficiently provocative that it would cause an ordinary person of
average disposition to act rashly or without due deliberation and reflection.”
(Moye, supra, 47 Cal.4th at p. 550.)
“The defendant must [also] actually, subjectively, kill under the heat of
passion.” (People v. Gutierrez (2002) 28 Cal.4th 1083, 1143.) “To satisfy the
subjective element of this form of voluntary manslaughter, the accused must
be shown to have killed while under ‘the actual influence of a strong passion’
induced by such provocation.” (Moye, supra, 47 Cal.4th at p. 550.) “ ‘Heat of
passion arises when “at the time of the killing, the reason of the accused was
obscured or disturbed by passion to such an extent as would cause the
ordinarily reasonable person of average disposition to act rashly and without
deliberation and reflection, and from such passion rather than from
judgment.” ’ ” (Ibid.) “ ‘However, if sufficient time has elapsed between the
provocation and the fatal blow for passion to subside and reason to return,
the killing is not voluntary manslaughter . . . .’ ” (Breverman, supra, 19
Cal.4th at p. 163.)
Here, although Jackson’s defense at trial was that he did not kill Ras,
Jackson contends the jury should have been instructed on voluntary
47
manslaughter because one of several possible scenarios in the prosecution’s
case supported the conclusion that he killed Ras in the heat of passion.
First, Jackson argues there was evidence that he “acted out of passion
after fighting with his girlfriend. He was so upset that he cried
uncontrollably, threatened suicide, threw himself on the ground and was
inconsolable.” He asserts, “[f]rom this, the jury could find that [Jackson]
killed [Ras] in the heat of passion.” This argument lacks merit, however,
because it ignores the requirement that any heat of passion must have been
both objectively reasonable and either incited by the victim, or by conduct the
defendant reasonably associates with the victim. While Jackson states in his
appellate brief that he is “unaware of any legal requirement . . . that the
victim must be the one who aroused the passion,” it is well established law
that “[t]he provocation which incites the defendant to homicidal conduct in
the heat of passion must be caused by the victim [citation], or be conduct
reasonably believed by the defendant to have been engaged in by the victim.”
(Lee, supra, 20 Cal.4th at p. 59, italics added; see People v. Steele (2002) 27
Cal.4th 1230, 1253 [evidence defendant was a Vietnam veteran with post-
traumatic stress disorder and “ ‘snapped’ ” and killed the decedent when he
heard helicopters failed to satisfy the objective element of heat of passion,
“which requires provocation by the victim”].)
Second, Jackson argues a voluntary manslaughter instruction should
have been given because H.E. testified that Jackson said “he had a verbal
exchange with [Ras], who said something to him that caused him to stab
[Ras].” Not so. H.E.’s testimony was that “[Jackson] said, ‘I was walking
past him and [Ras] was mumbling under his breath. And I turned around
and I said, “what, motherfucker?” ’ [¶] And he said that the dude looked up
48
at him, and I don’t recall what he said, Ras said to him, but he said that’s
when he did it.”
This evidence failed to satisfy the objective element of a heat of passion
theory of voluntary manslaughter. Although words alone may constitute
adequate provocation (Lee, supra, 20 Cal.4th at p. 59; accord Moye, supra, 47
Cal.4th at p. 550), H.E.’s testimony fails to demonstrate that Jackson’s
response was objectively reasonable. Even if Jackson’s statement, “what,
motherfucker,” arguably conveys that Ras’s mumbling caused Jackson to
become subjectively impassioned, mumbling under one’s breath is not,
objectively speaking, an inciting act. (Lee, supra, 20 Cal.4th at p. 60.) The
required “ ‘ “ ‘heat of passion must be such a passion as would naturally be
aroused in the mind of an ordinarily reasonable person under the given facts
and circumstances,’ because ‘no defendant may set up his own standard of
conduct and justify or excuse himself because in fact his passions were
aroused, unless further the jury believe that the facts and circumstances
were sufficient to arouse the passions of the ordinarily reasonable man.’ ” ’ ”
(People v. Rogers (2009) 46 Cal.4th 1136, 1168, italics added.)
H.E.’s testimony failed to convey what, if anything, Ras said to
Jackson, and provided no indication that Ras’s words were sufficient to
“cause an ordinary person of average disposition to act rashly or without due
deliberation and reflection.” (Moye, supra, 47 Cal.4th at p. 550.) Accordingly,
H.E.’s testimony was not supportive of a heat of passion theory of voluntary
manslaughter.
Finally, Jackson argues that Wayne’s testimony that Jackson said he
“got into it” with Ras because Ras spat on his sister and called her a “whore”
was substantial evidence that the homicide was committed under heat of
passion. Their full exchange was as follows:
49
“[WAYNE]: What did he say to your sister?
“JACKSON: He had spit on her and shit like that and called her
a whore and this, that, and the other. (Unintelligible.) [¶]
“JACKSON: Um, but yeah, dude, it was just. Just literally we
exchanged words and I walked away. And I was just like, you
know, fuck that fuckin n[-----], dude. Fuck that, fuckin n[-----]
and just went back and handled it, you know.
“[WAYNE]: Handle it.
“JACKSON: Just fucking, I don’t know.
“[WAYNE]: You can talk to me, son, nothing you say is going to
bother me.
“JACKSON: Yeah, I just fucking got into it with the guy, I don’t
know.
“[WAYNE]: Did you punch him?
“JACKSON: No, I didn’t, didn’t touch him.”
We conclude this evidence, even when viewed in the light most
favorable to Jackson (Wright, supra, 242 Cal.App.4th at p. 1483), failed to
satisfy the elements of voluntary manslaughter committed in the heat of
passion.
“ ‘Heat of passion arises when “at the time of the killing, the reason of
the accused was obscured or disturbed by passion to such an extent as would
cause the ordinarily reasonable person of average disposition to act rashly
and without deliberation and reflection, and from such passion rather than
from judgment.” [Citations.]’ ” (People v. Hach (2009) 176 Cal.App.4th 1450,
1458 (Hach), quoting People v. Barton (1995) 12 Cal.4th 186, 201 (Barton).)
“ ‘[T]he killing must be “upon a sudden quarrel or heat of passion” (§ 192);
50
that is, “suddenly as a response to provocation, and not belatedly as revenge
or punishment. Hence, the rule is that, if sufficient time has ela[ps]ed for the
passions of an ordinarily reasonable person to cool, the killing is murder, not
manslaughter.” ’ ” (Hach, supra, 176 Cal.App.4th at p. 1458, quoting People
v. Daniels (1991) 52 Cal.3d 815, 868.) Moreover, “[a]dequate provocation and
heat of passion must be affirmatively demonstrated.” (Lee, supra, 20 Cal.4th
at p. 60.)
Although calling Jackson’s sister a whore and spitting on her may have
qualified as potential provocation, there was an absence of evidence
establishing a temporal connection between the allegedly provocative event
and Jackson’s assault. “ ‘[T]he assailant must act under the smart of that
sudden quarrel or heat of passion.’ ” (People v. Wickersham (1982) 32 Cal.3d
307, 327, disapproved on another ground in Barton, supra, 12 Cal.4th at p.
201.) Jackson asserted that Ras “had”⎯past tense⎯“spit on [his sister] and
shit like that and called her a whore and this, that, and the other.” No
evidence was presented indicating that Jackson’s sister was with Jackson at
any point during the night of the incident. Although logic compels the
inference that the alleged insult could only have occurred at some earlier
point in time, Jackson identifies no record evidence addressing when the
alleged encounter between Ras and his sister purportedly occurred.
Moreover, other aspects of Jackson’s description of the incident to
Wayne undermine the inference that he acted under heat of passion when he
killed Ras. Jackson told Wayne that he had “words” with Ras, then “walked
away,” and then “was just like, you know, fuck that fuckin n[-----], dude.
Fuck that, fuckin n[-----] and just went back and handled it, you know.” This
description conveys a deliberate decision to engage in violence following a
period of reflection. Such “ ‘ “deliberation and reflection” ’ ” and a violent act
51
undertaken “ ‘ “belatedly as revenge or punishment” ’ ” are inconsistent with
a theory of homicide committed in a heat of passion. (Hach, supra, 176
Cal.App.4th at p. 1458.) We thus conclude that Jackson’s statements to
Wayne did not provide substantial evidence supporting a heat of passion
voluntary manslaughter instruction.
In his reply brief, Jackson notes for the first time that the jury was
instructed with CALCRIM 522 (Provocation: Effect on Degree of Murder) and
argues “the same evidence” supported instructing the jury with CALCRIM
570. He further maintains the fact that the jury found him guilty of second
degree murder but not guilty of first degree murder indicates the jury
determined he acted under provocation.
Even if we were to find good cause for Jackson’s failure to raise this
argument in his opening brief, we would reject it. (See People v. Maxwell
(2020) 58 Cal.App.5th 546, 557, fn. 4 [explaining that arguments raised for
first time in reply brief, without good cause, will not be considered].)
CALCRIM 522 instructs the jury that “[p]rovocation may reduce a murder
from first degree to second degree.” However, the provocation that reduces a
murder from first degree to second degree is subjective provocation. (See
People v. Rivera (2019) 7 Cal.5th 306, 328; People v. Thomas (1945) 25 Cal.2d
880, 903.) “ ‘The test of whether provocation or heat of passion can negate
malice so as to mitigate murder to voluntary manslaughter is objective.’
[Citation.] ‘The test of whether provocation or heat of passion can negate
deliberation and premeditation so as to reduce first degree murder to second
degree murder, on the other hand, is subjective.’ ” (People v. Robbins (2018)
19 Cal.App.5th 660, 674 (Robbins).) Thus, it is not the case, as Jackson
contends, that “the same evidence” satisfied both of the provocation
instructions.
52
Moreover, we disagree with Jackson’s assertion that the jury’s verdict
amounted to a finding that he acted under provocation. The jury was
instructed on the effects of voluntary intoxication on homicide crimes under
CALCRIM No. 625. “[E]vidence of intoxication can operate to reduce a first
degree murder to second degree murder.” (Robbins, supra, 19 Cal.App.5th at
p. 674.) Jackson does not argue there was insufficient evidence at trial that
he was voluntarily intoxicated at the time of the offense. The jury’s verdict is
equally reconcilable with a finding of voluntary intoxication.
Having determined there was not substantial evidence supporting a
heat of passion theory of voluntary manslaughter, we further conclude that
Jackson’s constitutional rights were not violated. “[N]o fundamental
unfairness or loss of verdict reliability results from the lack of instructions on
a lesser included offense that is unsupported by any evidence upon which a
reasonable jury could rely.” (People v. Holloway (2004) 33 Cal.4th 96, 141;
accord Moye, supra, 47 Cal.4th at p. 555.)
Finally, having found that the trial court did not err, we need not, and
do not, address whether the alleged error was prejudicial under Chapman.
(See People v. Thomas (2013) 218 Cal.App.4th 630, 644 [holding that the
erroneous failure to give a requested heat of passion voluntary manslaughter
instruction is federal constitutional error requiring Chapman prejudice
analysis].)
IV.
Substantial Evidence Supported the Verdict
Next, Jackson contends that his conviction was not supported by
substantial evidence, and that sustaining the judgment would violate his
constitutional right to due process. Jackson does not claim the evidence
failed to satisfy any particular element of second degree murder, but instead
53
maintains the evidence was insufficient to establish that he was the person
who committed the murder.
In considering a claim that a conviction is supported by insufficient
evidence, we “review the whole record in the light most favorable to the
judgment below to determine whether it discloses substantial evidence—that
is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578 ; see also Jackson v.
Virginia (1979) 443 U.S. 307, 319 (Jackson).) “[W]e presume in support of
the judgment ‘ “the existence of every fact the trier could reasonably deduce
from the evidence.” ’ ” (People v. Nelson (2016) 1 Cal.5th 513, 550.) “The
same standard applies when the conviction rests primarily on circumstantial
evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “Although we assess
whether the evidence is inherently credible and of solid value, we must also
view the evidence in the light most favorable to the jury verdict and presume
the existence of every fact that the jury could reasonably have deduced from
that evidence.” (People v. Reed (2018) 4 Cal.5th 989, 1006.) “Even
identification of defendant by a single eyewitness may be sufficient to
establish, beyond a reasonable doubt, defendant’s identity as perpetrator of
the crime charged.” (Ibid.)
Here, Jackson contends that “[c]lose review of the video and
photographic evidence will show that appellant was not the individual who
attacked [Ras] on June 22.” He then asserts that a “[r]eview of [his] own
taped statements will show a young man worried about being accused of
something he didn’t do, and in the process falling further down the
unfortunate rabbit hole of drug addiction that he was trying to claw his way
out of. Those statements will not in any way show a person who is guilty of
54
murder. There is no forensic evidence from the scene of the killing or
anywhere else that implicates [Jackson]. That leaves only the testimony of
[H.E.], and a review of [H.E.’s] testimony, statements, record of lying and
history of violent crimes [sic] of moral turpitude cannot be found to be
substantial evidence upon which any reasonable juror could find appellant to
[sic] guilty beyond a reasonable doubt.” Again, these assertions are
unaccompanied by citations to the record.
Jackson further contends: “[T]he jury was required to speculate that
being upset about a girlfriend to the point of wanting to kill oneself, somehow
segued into a desire to kill an innocent transient man instead; in an entirely
random act of violence. It required the jury to speculate that appellant
almost casually confided his guilt to [H.E.], while spending months worrying
out loud to family and friends that he was a suspect in a murder he had
nothing to do with. And that the one person he confided in, [H.E.], also
happened to be the one person in his life who had a real and serious
motivation to lie about [Jackson’s] involvement. The verdict also required the
jury to compare [Jackson], who they knew in the flesh, to the shadowy and
distorted figure in the surveillance videos, and speculate they were one and
the same person. None of it makes sense.”
Jackson’s appellate briefing is wholly inadequate to meet his heavy
burden of demonstrating the insufficiency of the evidence to support the
verdict. Because we approach every appeal with the presumption the
judgment is correct, “when a criminal defendant claims on appeal that his
conviction was based on insufficient evidence of one or more of the elements
of the crime of which he was convicted, we must begin with the presumption
that the evidence of those elements was sufficient, and the defendant bears
55
the burden of convincing us otherwise.” (People v. Sanghera (2006) 139
Cal.App.4th 1567, 1573 (Sanghera).)
To prevail, “the defendant must present his case to us consistently with
the substantial evidence standard of review.” (Sanghera, supra, 139
Cal.App.4th at p. 1574; accord People v. Paredes (2021) 61 Cal.App.5th 858,
863.) “That is, the defendant must set forth in his opening brief all of the
material evidence on the disputed elements of the crime in the light most
favorable to the People, and then must persuade us that evidence cannot
reasonably support the jury’s verdict. [Citation.] If the defendant fails to
present us with all the relevant evidence, or fails to present that evidence in
the light most favorable to the People, then he cannot carry his burden of
showing the evidence was insufficient because support for the jury's verdict
may lie in the evidence he ignores.” (Sanghera, at p. 1574.) An appellant
cannot prevail on an insufficiency claim, however, “by citing only his own
evidence, or by arguing about what evidence is not in the record, or by
portraying the evidence that is in the record in the light most favorable to
himself.” (Id. at p. 1573.)
Jackson violates these fundamental rules of appellate procedure and
thus fails to meet his burden as the appellant. He focuses only on select
evidence from the trial, ignoring most of the prosecution’s case. He asks us to
“close[ly]” review “the video and photographic evidence” and conclude that he
was not the perpetrator of the murder. This overlooks that a court of review
“resolve[s] neither credibility issues nor evidentiary conflicts” (People v.
Maury (2003) 30 Cal.4th 342, 403 (Maury), disapproved on another ground by
Barnett v. Superior Court (2010) 50 Cal.4th 890, 901); we may not replace our
subjective impression of the visual evidence for that of the jury. To the extent
Jackson’s argument can be interpreted as a contention that the visual
56
exhibits admitted at trial did not constitute substantial evidence supporting
the jury’s implied determination that Jackson was the same individual as the
suspect depicted in the video and photographic evidence, we have reviewed
these exhibits and reject the contention.
Similarly, Jackson’s assertion that “[his] own taped statements” will
show a “worried” young man and “not a person who is guilty of murder”
inappropriately calls on this court to assess the subjective emotion conveyed
by Jackson’s vocal tones and substitute our impression of Jackson’s
credibility for that of the jury, which we cannot and will not do. (See, e.g.,
Maury, supra, 30 Cal.4th at p. 403.) Moreover, Jackson provides no record
citations to the taped statements he would have us consider. An appellate
court presented with a substantial evidence challenge is “ ‘not required to
search the record to ascertain whether it contains evidence that will sustain
[the appellant’s] contentions.’ ” (Sanghera, supra, 139 Cal.App.4th at p.
1574.)
Next, Jackson complains no forensic evidence was presented at trial.
As we have noted, however, matters not in the record are of no consequence
in establishing the insufficiency of evidence to support the verdict.
(Sanghera, supra, 139 Cal.App.4th at p. 1573.)
Jackson characterizes H.E. as not credible, again ignoring the rule that
a court of review “resolve[s] neither credibility issues nor evidentiary
conflicts.” (Maury, supra, 30 Cal.4th at p. 403.) To the contrary, “[c]onflicts
and even testimony which is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the
facts upon which a determination depends.” (People v. Lyons (1956) 47
Cal.2d 311, 320 (Lyons).) Impliedly, the jury found H.E. credible, and we will
57
not overturn this determination. (See, e.g., Maury, at p. 403 [rejecting
appellant’s argument that the evidence supporting his rape conviction was
insufficient because the rape victim’s testimony was incredible].)
Finally, as for Jackson’s argument that the jury was required to
speculate in order to reach its verdict, his repetition of this assertion does not
make it true. Speculation is a conclusion reached without a foundational
showing. (See, e.g., People v. Morris (1988) 46 Cal.3d 1, 21 [explaining, in
setting forth the principles applicable to a sufficiency-of-evidence analysis,
that “[a] reasonable inference . . . ‘may not be based on suspicion alone, or on
imagination, speculation, supposition, surmise, conjecture, or guess work . . . .
A finding of fact must be an inference drawn from evidence rather than . . . a
mere speculation as to probabilities without evidence.’ ”], disapproved on
another ground in In re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.)
Here, contrary to Jackson’s argument, the jury was not required to
speculate that Jackson confided his guilt to H.E. or that Jackson was the
same person as the figure in the surveillance videos; these were matters
established by evidence. Jackson is apparently employing the word
“speculation” as an aspersion meant to imply the evidence was weak or not
credible. Again, however, we do not resolve credibility issues or evidentiary
conflicts when reviewing the sufficiency of the evidence to support the
verdict. (Maury, supra, 30 Cal.4th at p. 403.) Jackson’s inadequate briefing
compels the conclusion that he has failed to sustain his burden of
demonstrating the insufficiency of the evidence to support the verdict.
Moreover, setting aside the issue of Jackson’s deficient briefing, we
have reviewed the trial evidence and conclude ample evidence supported
Jackson’s conviction for the murder of Ras. Beginning with the chronology of
the events leading up to the homicide, identifications by witnesses, and
58
continuing with Jackson’s conduct and statements thereafter, the evidence
established that Jackson was the person who stabbed and killed Ras.
Mary called 911 at approximately 10:58 p.m. on June 21, 2017. She
reported a physical altercation with Jackson, who was wearing clothing
consistent with eyewitness descriptions of the assailant’s clothing, less than
two miles from the homicide. Mary placed this call just after Jackson ran
from her house. Caleb found Jackson shortly thereafter and walked Jackson
back to Makaela’s house. Makaela testified it was around 11:30 p.m. when
she and Jackson sat on the steps to the house for a period of five or 10
minutes, and that she went back outside to check on him two or three more
times before retiring to the house. She did not see Jackson again that night
and, contrary to Jackson’s asserted alibi, she could not testify to his
whereabouts after she saw him last.
The surveillance video collected by law enforcement methodically
documented the assailant’s path as he progressed westbound down Newport
Avenue toward the site of the homicide. The timing and direction of the
suspect’s path were consistent with the evidence establishing Jackson’s
location immediately beforehand. Beginning at approximately 12:12 a.m. on
June 22, a person in a hoodie sweatshirt and dark pants, carrying a cell
phone, could be seen in surveillance footage walking west on Newport Avenue
less than two blocks away from Makaela’s house, the precise path Jackson
would take if he were to walk directly from Makaela’s house to Bacon Street.
The same person was then captured by camera after camera as he
continued directly down Newport Avenue to Bacon Street, turned north on
Bacon Street, stopped in the street, and turned and engaged with Ras. The
ensuing encounter lasted roughly ten minutes and, by all accounts including
eyewitness reports, culminated in an assault at approximately 12:25 a.m.
59
The assailant could then be seen in surveillance video fleeing on foot. Not
only was the assailant’s clothing similar to the clothing described by Mary in
the 911 call, but his physical build and facial features, as portrayed in the
surveillance video and as described by eyewitnesses, were similar to
Jackson’s. Even Jackson’s age was consistent with Jamie’s account that the
assailant’s body movements seemed like those of a younger person. Further
still, Caleb, Riley, and Kasey⎯all friends or acquaintances of Jackson who
were with him on the night of June 21, 2017, hours before Ras was
killed⎯identified Jackson as the suspect captured on the surveillance
cameras along Newport Avenue.
Added to the direct and circumstantial evidence identifying Jackson as
the assailant were Jackson’s statements to Wayne, which were incriminating
even if they did not amount to full confessions, and his confessions to H.E. of
“pok[ing] that n[-----],” followed by their subsequent discarding of evidence.
Although Jackson impugns H.E.’s credibility, “even testimony which is
subject to justifiable suspicion do[es] not justify the reversal of a
judgment . . . .” (Lyons, supra, 47 Cal.2d at p. 320.)
Far from being insufficient, the evidence of Jackson’s guilt was
abundant. Substantial evidence supported his conviction for second degree
murder. We therefore conclude that Jackson’s constitutional right to due
process of law was not violated. (See Jackson, supra, 443 U.S. at pp. 313–
324.)
V.
No Cumulative Error
Jackson argues the cumulative error doctrine applies to his asserted
claims of error. “Cumulative error is present when the combined effect of the
trial court’s errors is prejudicial or harmful to the defendant.” (People v.
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Capers (2019) 7 Cal.5th 989, 1017.) However, where, as here, there are no
errors to aggregate, there is no cumulative error. (See, e.g., People v. Lua
(2017) 10 Cal.App.5th 1004, 1019 [cumulative error doctrine did not apply
where “we have found no error, though we have considered the issue of
prejudice as an alternative basis for rejecting defendant’s claims of error”].)
DISPOSITION
The judgment is affirmed.
DO, J.
WE CONCUR:
HALLER, Acting P. J.
AARON, J.
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