People v. Thomas

Filed 5/28/21
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B298946
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA436832)
v.
DAVON RAYDALE THOMAS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Stephen A. Marcus, Judge. Affirmed in
part, reversed in part.
C. Matthew Missakian, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithy, Assistant
Attorney General, Steven D. Matthews and Gary A. Lieberman,
Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________
The defendant and appellant Davon Raydale Thomas,
along with codefendants Aaron Cleveland, Orlando Dalman
Ritchie, and Kenshan Aorian Lenoir, were tried for murder in
violation of Penal Code section 187, subdivision (a),1 shooting at
an inhabited dwelling, in violation of section 246, and felony
evading in violation of Vehicle Code section 2800.3, subdivision
(a). The jury convicted Thomas on all counts and found the gang
allegation under section 186.22, subdivision (b) true for the
shooting at an inhabited dwelling charge. As for the
codefendants, the jury was unable to reach a verdict on the
murder charge but convicted each on the shooting at an inhabited
dwelling count finding the gang allegation true. The jury also
convicted Ritchie and Lenoir on the felony evading and
Cleveland, on the lesser charge of misdemeanor evading. The
trial court sentenced Thomas to 25 years to life for the murder,
15 years to life for the shooting at an inhabited dwelling, and
seven years for the felony evading, to be served consecutively.
On appeal, Thomas raises seven contentions: (1) the trial
court erroneously denied his new trial motion because prior to the
sentencing, Senate Bill No. 1437 (2017-2018 Reg. Sess.) (SB
1437) rendered his felony-murder conviction invalid, (2) the trial
court committed instructional error on the
accomplice/codefendant instruction improperly suggesting his
testimony should be viewed with caution, (3) the prosecutor
committed misconduct by lessening the reasonable doubt
standard in closing argument, (4) counsel for codefendant
Cleveland committed various misconduct which denied him due
process of law, (5) the trial court violated his due process right by
1 All further undesignated section references are to the Penal
Code.
2
denying his motion to sever, (6) the trial court committed error by
excluding his gang territory evidence, and, (7) the prejudice
caused by the cumulative error denied him due process of law.
We find merit in Thomas’s SB 1437 contention and reverse the
murder conviction. We affirm the judgments on the remaining
counts.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution’s Case
The prosecution’s case was based on three separate
incidents all committed on May 23, 2015.
The Shooting at an Inhabited Dwelling Incident
The shooting occurred at the home of Qiana Beverly located
on 70th Street near Budlong Avenue in the city of Los Angeles.
Beverly lived with a friend named Shannon Ruffinelli. That
night Beverly hosted a party for her son with about 100 people in
attendance. Just prior to midnight, Beverly heard several
gunshots. Everyone ran. Beverly saw a black Honda drive away
from the location.
Marlen and Jose Leiva are siblings who lived near the
corner of 70th Street and Budlong Avenue. Marlen saw a person
get out of a car and shoot approximately five times towards a
house. She described the shooter as an African American male,
between the age of 16 and 22, thin, and wearing loose dark
clothing. Marlen thought the shooter yelled, “Eight Trey
Gangster Crips.”
Jose saw four people get out of a car and start shooting
towards the party. He called 9-1-1. The shooters got back into
the car and drove away. In the 9-1-1 call, Jose described the car
as a black 2014 Chevy Impala.
3
The Murder Incident
Eric Cousin lived near 52nd Street and Western Avenue in
the city of Los Angeles. Just after midnight, he walked to the
side of his house to see why his dog was barking. He saw two
men pressing the victim, Jonathan Ford, against a chain link
fence. The two men held Ford and demanded he “hurry up” and
told him to “give it up nigga.” Another man wearing black
clothing got out of a car, approached Ford, and shot him. The
assailants got back in the car and drove away. Cousin called
9-1-1.
When Los Angeles Police Officer Christopher Tabela and
his partner arrived around 12:10 a.m., he saw Ford lying on the
ground already deceased. Ford had a gunshot wound to his head
and right shoulder/chest area.
The Evading Incident
Around 12:12 a.m., Los Angeles Police Officer Julio Aguilar
and his partner were driving in a marked police vehicle
southbound on Western Avenue towards Martin Luther King Jr.
Boulevard. He saw a black Chevy Cruze driving fast in the
opposite direction. He made a u-turn to follow it. The Chevy
Cruze drove into a residential area and reached speeds of 70 to 90
miles per hour running stop signs and red lights. As the Chevy
Cruze turned onto 39th Place, Officer Aguilar observed a
handgun being tossed from the passenger side.
Officer Aguilar activated his emergency lights and siren.
As he pursued, the Chevy Cruze continued to run stop signs and
red lights reaching speeds around 100 miles per hour. At the
intersection of 2nd Avenue and 39th Street, the Chevy Cruze
collided into a White Prius and came to a stop.
4
Cleveland climbed out of the passenger side and ran.
Thomas, along with Ritchie and Lenoir remained at the car and
were arrested. With the assistance of a helicopter, Cleveland was
apprehended after breaking into a stranger’s home to hide.
Thomas had been in the driver’s seat.
A passenger of the Prius was ejected from the collision and
suffered several injuries. He required two eye surgeries, had
pain in his right knee and struggled to walk for a few months
after the crash.
The Physical Evidence
Physical evidence collected from the Chevy Cruze consisted
of the following: (1) a loaded (one live bullet and two expended
casings) .38-caliber Rossi revolver found on the driver’s side rear
seat, (2) a number of .40-caliber live rounds (Smith & Wesson and
TUI brands) from various parts of the car, (3) one expended .38-
caliber casing, on the left rear seat, (4) a blue suitcase containing
a box of 10 live Hornady brand .38-caliber bullets, (5) Ford’s cell
phone on the passenger seat, (6) cell phones belonging to Thomas,
Ritchie and Lenoir, and (7) a possible bullet impact mark on the
ceiling’s upholstery.
From Lenoir’s pants pocket, the police recovered a Glock
model 22, .40-caliber pistol loaded with seven live rounds.
Near the location where Cleveland had run after the crash,
the police recovered six .38-caliber expended casings of various
brands (Hornady, GFL, and Winchester).
Near the location where Officer Aguilar had observed a gun
being tossed from the Chevy Cruze, the police recovered a Taurus
revolver loaded with six live .38-caliber Hornady brand bullets.
At or near Beverly’s home, the police recovered: (1) one
spent bullet on a bedroom floor of Beverly’s home, (2) several
5
bullet marks on the exterior of Beverly’s home, (3) a spent bullet
found in the front of the next door home, and (4) six .40-caliber
expended casings on 70th Street.
From the autopsy, two spent bullets were recovered from
Ford’s body.
The Scientific Evidence
Criminalists conducted firearms tests with the recovered
physical evidence. Criminalists opined as follows:
(1) The Rossi had fired the bullets that killed Ford.
(2) Neither the Glock nor the Taurus was the murder
weapon.
(3) The Rossi had fired the six .38-caliber expended
casings found near the location where Cleveland had run after
the crash.
(4) The Glock had fired the six .40-caliber expended
casings on 70th Street.
The Prosecution’s Gang Evidence
The prosecution presented several gang experts including
Detective Marlon Prodigalidad and Officer Michael Barragan of
the Los Angeles Police Department. Prodigalidad opined that
Thomas, Cleveland, and Lenoir are members of Eight Trey
Gangster Crips and that Ritchie is a member of Hoovers. Both
Prodigalidad and Barragan opined, Eight Trey Gangster Crips
and Hoovers are allies and consider Neighborhood Crips a
common enemy.
On gang territory, both Barragan and Prodigalidad opined
Beverly’s home near the corner of Budlong Avenue and 70th
Street is located in Neighborhood Crips’ gang territory, although
some law enforcement created gang maps say otherwise. They
6
both opined the shooting at Beverly’s home was for the benefit of,
and, in association with, a criminal street gang.
The Defense Case
Thomas, Ritchie, and Lenoir took the stand to testify.
Cleveland did not.
Thomas’s Testimony
Thomas grew up in Eight Trey Gangster Crips’ territory
and hung out with them since about 14 or 15 years old. He was
never officially “jumped-in.” Thomas and Ritchie are childhood
friends. He met Lenoir through his younger brother. Thomas
made money from high school to the present time by selling
drugs. He moved to Las Vegas, Nevada in 2013.
The day before the incidents, on May 22, 2015, Thomas
drove to Los Angeles with Ritchie and Lenoir to conduct a drug
transaction as a middleman. Thomas went to an apartment
building on 79th Street and Normandie to buy Xanax. While
there, he saw Cleveland who asked for a ride. Thomas had met
Cleveland once before years prior.
When Thomas drove the vehicle, Ritchie sat in the front
passenger seat, Lenoir sat behind Thomas who drove, and
Cleveland sat behind Ritchie. When Thomas got to 70th Street,
he heard gunshots real close but did not know where the shots
were coming from. Cleveland yelled, “Let me out, go back, or
something.” Cleveland got out of the car and started shooting.
No one else fired a gun.
Cleveland got back into the car. Everyone was arguing.
Thomas stopped the car to calm down and to confront Cleveland
on what he had done. Cleveland got out of the car with a gun in
hand. Thomas saw him grab Ford telling him to “give up
something.” He saw Cleveland shoot Ford two times, once to the
7
head, the other to the chest. Thomas drove away with all four in
the car.
As Thomas sped away from the location, he noticed a police
vehicle behind him. Chaos ensued in the car with everyone
yelling. Thomas threw the Taurus revolver out of the window.
Ritchie’s Testimony
Ritchie was a member of Hoovers when he was younger.
Around 2014, he moved to Las Vegas and worked as a pimp.
Ritchie drove to Los Angeles with Thomas and Lenoir. He
was going to see his mother. The three stopped at an apartment
to buy Xanax where they saw Cleveland. Cleveland asked for a
ride in exchange for $10. This was the first Ritchie had ever met
Cleveland.
Cleveland directed Thomas where to drive. When the car
stopped, Ritchie saw Cleveland get out of the car. Ritchie heard
gunshots. Thomas drove away after Cleveland got back into the
car.
After several minutes of driving, Thomas stopped the car.
Cleveland got out of the car first, followed by Thomas. Ritchie
heard Thomas try to stop Cleveland, but Cleveland shot Ford.
Lenoir’s Testimony
Lenoir grew up in Eight Trey Gangster Crips territory but
claimed he was not a gang member.
Lenoir wanted to attend a cousin’s party in Los Angeles but
missed his flight from Las Vegas. Lenoir knew Thomas was
driving to Los Angeles, so he called and got a ride.
When Thomas stopped the car on Budlong Avenue, Lenoir
was in the back seat with Cleveland whom he had never met.
Lenoir had the Glock for self-protection. Cleveland grabbed
Lenoir’s Glock from his lap, got out of the car, and shot the gun.
8
Cleveland yelled, “Fuck Naps,” a derogatory term for
Neighborhood Crips.
When Ford was killed, Lenoir never got out of the car.
Lenoir saw Cleveland walk up on Ford. He saw Cleveland shoot
Ford but only the second shot.
The Defense Gang Evidence
Thomas called Alex Alonso to testify about gang culture.
Alonso is a professor at Cal State Long Beach in Chicano Latino
Studies. His master’s thesis was about the territoriality of
African American street gangs in Los Angeles. He opined Eight
Trey Gangster Crips and Neighborhood Crips are rivals.
Alonso opined that the city block between Budlong and
Raymond Avenue on 70th Street in Los Angeles has been claimed
by Eight Trey Gangster Crip for around 40 years and is not
Neighborhood Crips territory.
DISCUSSION
I. The Denial of a New Trial Motion after the Effective
Date of SB 1437
Thomas contends the trial court’s denial of his new trial
motion on the murder conviction was erroneous because prior to
the sentencing date, SB 1437 took effect and rendered his felony
murder conviction invalid. He then argues broadly that the
Estrada rule2 should apply to all non-final judgments but at a
2 The oft cited Estrada rule states, “where the amendatory
statute mitigates punishment and there is no saving clause, the
rule is that the amendment will operate retroactively so that the
lighter punishment is imposed.” (In re Estrada (1965) 63 Cal.2d
740, 748.) When applicable, the Estrada rule applies to all non-
final judgments. (Id. at p. 744.) “The rule in Estrada has been
applied to statutes governing penalty enhancements, as well as to
9
minimum to himself because he was sentenced after the new law
took effect. Although Thomas mentions “non-final judgments” as
a class, his arguments are focused on the sub-category within
that class of those who were convicted before the effective date
but not sentenced until after. In any event, the broader question
was settled by our Supreme Court in People v. Gentile (2020) 10
Cal.5th 830 (Gentile). Left untouched is the issue of first
impression before us – whether a defendant convicted of felony
murder prior to SB 1437’s effective date but sentenced after -
must seek relief under section 1170.95. We agree that Thomas is
correct.
A. Relevant Proceeding
The prosecution relied on two theories to establish first
degree murder liability: (1) the felony murder rule, and, (2) the
theory under willful, deliberate premeditation. On the felony
murder rule the trial court did not instruct the jury to consider
the question of “major participant” or “reckless indifference to
human life” since the prosecution had not filed a special
circumstance allegation pursuant to section 190.2, subdivisions
(a)(17) and (d).3
On August 29, 2018 before SB 1437 took effect on
January 1, 2019, the jury convicted Thomas on the murder
statutes governing substantive offenses. [Citations.]” (People v.
Nasalga (1996) 12 Cal.4th 784, 792-793.)
3 Prior to SB 1437, proving up the elements of being a “major
participant” and having the mental state of “reckless indifference
to human life” were only relevant for the special circumstance
allegation under this provision of law.
10
charge, as well as the other two counts.4 Presumably because the
Legislature was close to passing SB 1437, the trial court modified
the guilty verdict form and caused the jury to specify the theory
of liability on which they relied. The jury filled out the guilty
verdict form with a “true” finding on felony murder and a “not
true” finding on premeditation.
After the verdict, Thomas waived time and continued the
matter for sentencing to October 4, 2018. On October 4, 2018, the
parties stipulated to continue the sentencing to October 16, 2018.
On October 16, 2018, Thomas again waived time and continued
the sentencing to January 31, 2019 beyond the effective date of
SB 1437. On January 31, 2019, Thomas again sought a
continuance of his sentencing which was granted to March 15,
2019.
On February 21, 2019, Thomas filed a motion for a new
trial challenging the conviction on the murder charge. In it, the
trial counsel contended:
“At this point, this Court has only two [c]onstitutionally
permissible options in regards to Count 1 for Mr. Thomas: 1) the
Court can dismiss the murder charge and impose a sentence for
robbery, or 2) order a new trial for Thomas as to Count 1 so that
a jury can be properly instructed on the elements of first-degree
felony murder. Since Mr. Thomas has not been sentenced, the
specific procedures within SB 1437 that allow a sentenced
offender to seek a re-sentencing do not currently apply to Mr.
Thomas.”
4 The California Legislature passed SB 1437 in 2018, and the
bill was signed by the Governor on September 30, 2018. As a bill
enacted at a regular session, the bill became effective on January
1, 2019. (See Cal. Const., art. IV, § 8, subd. (c)(1).)
11
On April 19, 2019, counsel for Thomas filed a supplemental
new trial motion. Trial counsel contended “there is no precedent
that allows this Court to impose sentence in such an unusual and
extra-ordinary [sic] way. Imposing a sentence for first-degree
murder on Mr. Thomas would be completely contradictory to the
intent of SB 1437.”
On April 25, 2019, the trial court heard the new trial
motion. After hearing from counsel for Thomas and the
prosecutor, the trial court reasoned section 1170.95 required a
person to be convicted before relief may be granted. The trial
court ruled, “But right now it is the Court’s position, because
[Thomas] must be convicted, and conviction involves actual
sentencing, that’s when a judgment occurs, he is not
allowed . . . to get the benefits of 1437.”
B. Legal Principles
1. SB 1437
SB 1437 amended sections 188 and 189, and, added section
1170.95 creating a retroactive petition procedure similar to
Proposition 36 and Proposition 47.5
5 Proposition 36, also known as the “Changes to Three
Strikes Sentencing Initiative” amended California’s “Three
Strikes” law to limit the application of the “third-strike” life
sentences to only those cases where the new alleged crime
constituted a serious or a violent felony as defined in California’s
Penal Code, with exceptions. It also permitted those serving
“third-strike” sentences to seek retroactive relief pursuant to a
new resentencing procedure under section 1170.126. The voters
enacted Proposition 36 on November 7, 2012 and it took effect the
following day. (Cal. Const., art. II, § 10, former subd. (a).)
Proposition 47, also known as the “The Safe Neighborhoods and
Schools Act” reclassified certain drug and theft offenses from a
felony to a misdemeanor with exceptions. Like Proposition 36, it
12
According to its author, the legislative purpose of SB 1437
was to “restore proportional responsibility in the application of
California’s murder statute reserving the harshest punishments
for those who intentionally planned or actually committed the
killing.” (Assem. Com. on Pub. Safety, Rep. on Sen. Bill No. 1437
(2018 Rev. Sess.) p. 4.) SB 1437 eliminated the second-degree
murder theory under the natural and probable consequences
doctrine (see Gentile, supra, 10 Cal.5th at p. 849 [“By limiting
murder liability to those principals who personally acted with
malice aforethought, section 188(a)(3) eliminates what was the
core feature of natural and probable consequences murder
liability: the absence of a requirement that the defendant
personally possess malice aforethought.”]) and narrowed the
liability for the first-degree felony murder to: 1) the actual killer,
2) the aider and abettor who intended to kill, and 3) the aider and
abettor who was a major participant and acted with reckless
indifference to human life. (§ 189, subd. (e)(1)–(3).)
2. Section 1170.95
SB 1437 also established a retroactive procedure which
allows those “convicted of felony murder or murder under a
natural and probable consequences theory [to] file a petition with
the court that sentenced the petitioner to have the petitioner’s
murder conviction vacated and to be resentenced on any
remaining counts . . . .” (§ 1170.95, subd. (a).)
Individuals seeking relief must meet three conditions: “(1)
A complaint, information, or indictment was filed against the
also provided for a new resentencing scheme under section
1170.18. Like Proposition 36, as an initiative statute, it took
effect the day after the voter’s approval on November 5, 2014.
13
petitioner that allowed the prosecution to proceed under a theory
of felony murder or murder under the natural and probable
consequences doctrine[,] [¶] (2) The petitioner was convicted of
first degree or second degree murder following a trial or accepted
a plea offer in lieu of a trial at which the petitioner could be
convicted for first degree or second degree murder[, and] [¶] (3)
The petitioner could not be convicted of first or second degree
murder because of changes to Section 188 or 189 made effective
January 1, 2019.” (§ 1170.95, subd. (a)(1)-(3).)
The petitioner is required to file the petition with the trial
court that sentenced the petitioner, along with service on the
prosecutorial agency and his/her prior counsel or the county’s
public defender. (§ 1170.95, subd. (b)(1).) The petition must
include a declaration by the petitioner setting forth eligibility
along with the case number and year of conviction and “[w]hether
the petitioner requests the appointment of counsel.” (Id., subd.
(b)(1)(A)-(C).)
Once the petition is received, the trial court must
“determine if the petitioner has made a prima facie showing that
the petitioner falls within” the retroactive scheme for
resentencing. (§ 1170.95, subd. (c), italics added.) Prosecutors
are required to file a response within 60 days of service of the
petition, and, the petitioner may file a reply within 30 days after
service of the prosecutor’s response. (Ibid.) “If the petitioner
makes a prima facie showing that he or she is entitled to relief,
the court shall issue an order to show cause.” (Ibid., italics
added.)
Once the trial court issues an order to show cause, it must
hold a hearing within 60 days unless the hearing is extended for
good cause. (§ 1170.95, subd. (d)(1).) In the hearing, the trial
14
court must determine “whether to vacate the murder conviction
and to recall the sentence and resentence the petitioner on any
remaining counts in the same manner as if the petitioner had not
been previously . . . sentenced, provided that the new sentence, if
any, is not greater than the initial sentence.” (Ibid.) The parties
may waive the hearing and stipulate that the petitioner is
eligible for relief in which case the trial court may vacate the
murder conviction and move straight to resentencing. (Id., subd.
(d)(2).)
At the hearing to determine whether petitioner is eligible
for relief, the burden is on the prosecutor to prove ineligibility
beyond a reasonable doubt. (§ 1170.95, subd. (d)(3).) “The
prosecutor and the petitioner may rely on the record of conviction
or offer new or additional evidence to meet their respective
burdens.” (Ibid.)
C. Analysis
“When a new statute decreases the prescribed punishment
for criminal conduct, . . . whether the change applies to
preenactment conduct is a matter of legislative intent.
[Citation.]” (People v. Lara (2019) 6 Cal.5th 1128, 1134 (Lara).)
Neither the state nor the federal Constitutions bar the
Legislature from enacting a savings clause or its equivalent to
determine how the criminal laws of the state should treat
preenactment illegal conduct after the ameliorative statute takes
effect. Indeed, “[b]ecause the Estrada rule reflects a presumption
about legislative intent, rather than a constitutional command,
the Legislature . . . may choose to modify, limit, or entirely forbid
the retroactive application of ameliorative criminal law
amendments if it so chooses.” (People v. Conley (2016) 63 Cal.4th
646, 656 (Conley).)
15
“The fundamental task of statutory construction is to
‘ascertain the intent of the lawmakers so as to effectuate the
purpose of the law. [Citations.] In order to determine this intent,
we begin by examining the language of the statute.’ [Citation.]
The words of a statute are to be interpreted in the sense in which
they would have been understood at the time of the enactment.
[Citations.]” (People v. Cruz (1996) 13 Cal.4th 764, 774-775.) We
consider the language used in a statute as “ ‘generally . . . the
most reliable indicator of legislative intent.’ ” (People v. Cornett
(2012) 53 Cal.4th 1261, 1265.) The plain meaning controls absent
ambiguity in the statutory language. (Ibid.) “ ‘[A] rule of
construction . . . is not a straitjacket. Where the Legislature has
not set forth in so many words what it intended, the rule of
construction should not be followed blindly in complete disregard
of factors that may give a clue to the legislative intent.’
[Citation.]” (People v. Jones (1988) 46 Cal.3d 585, 599.) When
two interpretations of a statute stand in relative equipoise, the
rule of lenity requires the court to choose the one which favors
the defendant. (People v. Manzo (2012) 53 Cal.4th 880, 889.)
However, appellate courts should not strain to interpret a penal
statute in a defendant’s favor if it can fairly discern a contrary
legislative intent. (People v. Avery (2002) 27 Cal.4th 49, 58.)
The Attorney General argues section 1170.95 is the
exclusive retroactive remedy, even if the sentencing occurs after
SB 1437’s effective date, because the Legislature may prescribe
specific procedures separate from the Estrada rule.
The Attorney General is correct that the Legislature may
enact a savings clause or its equivalent to bypass the Estrada
rule. In Conley, our Supreme Court discussed this legislative
(through the voters’) choice in the context of Proposition 36 that
16
altered California’s Three Strikes sentencing. “The Estrada rule
rests on an inference that, in the absence of contrary indications,
a legislative body ordinarily intends for ameliorative changes to
the criminal law to extend as broadly as possible, distinguishing
only as necessary between sentences that are final and sentences
that are not. [Citation.] In enacting the recall provision, the
voters adopted a different approach. They took the extraordinary
step of extending the retroactive benefits of the Act beyond the
bounds contemplated by Estrada—including even prisoners
serving final sentences within the Act’s ameliorative reach.”
(Conley, supra, 63 Cal.4th at pp. 657-658.) In People v. Yearwood
(2013) 213 Cal.App.4th 161, the Court of Appeal noted, “[t]he
Estrada rule does not apply to [Proposition 36’s recall provisions]
because section 1170.126 operates as the functional equivalent of
a savings clause.” (Id. at p. 172.).
We likewise observe that section 1170.95 may be
considered a functional equivalent of a savings clause. The
Legislature spelled out with specific details the procedures to be
followed by persons convicted and sentenced for murder under
the felony murder rule, or, under the doctrine of natural and
probable consequences. This approach, as advocated by the
Attorney General, and, described in People v. Martinez (2019) 31
Cal.App.5th 719 (Martinez) as the exclusive remedy for non-final
judgments, is certainly true for defendants who were convicted
and sentenced prior to SB 1437’s effective date. We agree with
Martinez that “section 1170.95 does not distinguish between
persons whose sentences are final and those whose sentences are
not. That the Legislature specifically created this mechanism,
which facially applies to both final and nonfinal convictions, is a
significant indication Senate Bill 1437 should not be applied
17
retroactively to nonfinal convictions on direct appeal.” (Id. at
p. 727.) We also agree with Martinez that “[p]roviding the parties
with the opportunity to go beyond the original record in the
petition process, a step unavailable on direct appeal, is strong
evidence the Legislature intended for persons seeking the
ameliorative benefits of Senate Bill 1437 to proceed via the
petitioning procedure.” (Id. at p. 728.) After Martinez was
published, several Courts of Appeal have agreed with its holding.
(See People v. Anthony (2019) 32 Cal.App.5th 1102, 1147-1158;
People v. Lopez (2019) 38 Cal.App.5th 1087, 1113-1114, review
granted on another issue Nov. 13, 2019, S258175; People v.
Munoz (2019) 39 Cal.App.5th 738, 751-753, review granted on
another issue Nov. 26, 2019, S258234; People v. Bell (2020) 48
Cal.App.5th 1, 10-11.) Finally, in Gentile, our Supreme Court
agreed with these Courts of Appeal that section 1170.95 is the
exclusive remedy for retroactive relief on non-final judgments.
(Gentile, supra, 10 Cal.5th at pp. 851-859.)
Whether section 1170.95 applies to defendants convicted
prior to the effective date and sentenced after, however, is a
narrower and more specific question than the one the Martinez
line of cases have answered.6 What matters here is legislative
intent. Based on the language used in section 1170.95, persons
convicted before SB 1437 took effect whose sentencing hearing is
continued beyond the effective date do not fall under section
1170.95.
6 We are unaware of any California decisional law which has
dealt with this narrow question. “Cases are not authority for
propositions not considered.” (City of Oakland v. Public
Employees’ Retirement System (2002) 95 Cal.App.4th 29, 57, [115
Cal.Rptr.2d 151].)
18
It is a maxim of statutory construction that “Courts should
give meaning to every word of a statute if possible, and should
avoid a construction making any word surplusage.” (Arnett v.
Dal Cielo (1996) 14 Cal.4th 4, 22 [56 Cal.Rptr.2d 706, 923 P.2d
1].) In this analysis, the words used by the Legislature and their
knowledge of the effective date sheds light on its legislative
intent.
SB 1437 took effect January 1, 2019. Possessing this
knowledge, the Legislature drafted section 1170.95’s eligibility
requirement to include both the adjudication of guilt and
sentencing as of that date. (§ 1170.95, subd. (a) [“A person
convicted of felony murder or murder under a natural and
probable consequences theory may file a petition with the court
that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced.” (Italics added.)].) The
clearest indication of legislative intent here is that the
Legislature intended section 1170.95 to operate as a post-
judgment remedy, and that any person, whether with a final or
non-final judgment on January 1, 2019, may challenge their
judgment by filing a petition under section 1170.95.
Other aspects of section 1170.95 show it to be a post-
judgment remedy. For example, the petition is to be filed “with
the court that sentenced the petitioner” and if the sentencing
judge is not available, “the presiding judge shall designate
another judge to rule on the petition.” (§ 1170.95, subd. (b)(1),
italics added.) “The parties may waive a resentencing hearing
and stipulate that the petitioner is eligible to have his or her
murder conviction vacated and for resentencing.” (Id., subd.
(d)(2).) The Legislature’s choice of words and phrases on
eligibility and the specific procedures to be followed show it
19
considered section 1170.95 to be a post-judgment retroactive
remedy on its effective date. As such, section 1170.95 does not
apply to persons like Thomas who were not yet sentenced on
January 1, 2019.
This case is analogous to Lara decided on statutory
construction based on the words used in section 1170.18 -
Proposition 47’s retroactive petition process. Lara held those
charged with Proposition 47 eligible crimes not yet sentenced on
November 5, 2014 could seek direct relief outside the petition
process because the petition to recall a sentence applied to a
“person who, on November 5, 2014, was serving a sentence for a
conviction . . . who would have been guilty of a misdemeanor
under the act that added this section . . . .” (§ 1170.18, subd. (a);
Lara, supra, 6 Cal.5th at pp. 1131-1134.) As in Lara, section
1170.95 does not apply to Thomas because on January 1, 2019, he
was not serving a sentence when SB 1437 took effect.
While the words used in sections 1170.18 and 1170.95 to
determine who must use the petition procedure differ, we discern
a similar intent. First, in looking backwards to persons already
sentenced, the legislative (or the voter’s) intent under both laws
was to apply the changes retroactively to previously sentenced
persons, even those with final judgments, more broadly than
what the Estrada rule would permit. This expands the
resentencing remedy to the greatest population of petitioners
possible. Second, in going forward from the effective date, the
legislative intent under Proposition 47 and SB 1437 is to
ameliorate the harsher reach of the former laws and
prospectively apply the substantive amendatory changes to
persons who come before the court after the effective date. Just
as the Legislature sought to have SB 1437 retroactively apply to
20
the greatest population of those with judgments (both final and
non-final), it stands to reason, the Legislature looked to apply the
substantive changes to sections 188 and 189 to the greatest
degree going forward. This intent is inferred from the gateway
eligibility requirements stated in section 1170.95 triggered by the
effective date. Thus, because section 1170.95 does not apply to
him, Thomas, and persons similarly situated, may seek direct
Estrada relief by filing a new trial motion to challenge the
legality of the verdict based on the changes to sections 188 and
189.
While we view the language in section 1170.95 dispositive,
others may disagree. Here, even if we were to find section
1170.95 ambiguously phrased, the result would not change based
on the rule of lenity regarding two interpretations that stand in
relative equipoise. The interpretation favorable to Thomas is
that the words and phrases used by the Legislature show it
intended section 1170.95 to be a post-judgment remedy for
persons convicted and sentenced before January 1, 2019. The
contrary argument is that the Legislature intended section
1170.95 to operate as a “catch-all” functional equivalent of a
savings clause. Here, every person convicted of felony murder,
or, murder under a natural and probable consequences doctrine,
even those convicted before the effective date and not yet
sentenced on the effective date, must seek their remedy via the
section 1170.95 process. This means, the trial court would be
required to sentence a defendant, like Thomas, to a potentially
invalid conviction before he could seek relief. We agree with trial
counsel for Thomas that such a result is unusual and
extraordinary. It also appears inconsistent with the legislative
intent to apply the substantive changes to sections 188 and 189
21
broadly. Be it so, we posit the two interpretations at least stand
in relative equipoise. As such, the rule of lenity favoring a
defendant, here, Thomas, is triggered resulting in the application
of the Estrada rule.7 As such, the trial court erred when it denied
Thomas’s motion for a new trial under a belief section 1170.95
was his only remedy.
II. Accomplice Liability Instruction
Thomas contends the trial court committed instructional
error on the accomplice/codefendant instruction improperly
suggesting Thomas’s testimony should be viewed with caution
and needed corroboration. Our review of this contention shows
he raised it to challenge the murder conviction. As we reverse
the judgment on the murder conviction based on his SB 1437
contention, this issue has been rendered moot. However, Thomas
again raises this argument as a part of his additional contention
that the denial of his severance motion violated his due process
right. We analyze this contention for that reason and find it
lacks merit.
A. Relevant Proceedings
When the trial court conducted a hearing on jury
instructions, counsel for Thomas informed the trial court he
objected to giving certain accomplice instructions because they
“would unfairly instruct the jury to view Mr. Thomas’s testimony
7 See People v. Ramos (2016) 244 Cal.App.4th 99, which
discusses the Estrada rule in the context of legislative changes to
substantive criminal statutes and held that the new elements
apply retroactively requiring a new trial. (Id. at pp. 103-104.)
Because the trial court asked the jury to specify the murder
theory it adopted (first degree felony murder), the result of the
motion for a new trial is evident – which is to grant a new trial.
22
with skepticism.” In light of the three codefendants taking the
stand to implicate Cleveland of murdering Ford, however, the
trial court informed all counsel he intended to give the accomplice
testimony instructions. All counsel objected.
Amongst the accomplice testimony instructions given to the
jury, the trial court gave CALJIC No. 3.18 which provides:
“To the extent that an accomplice or a codefendant gives
testimony that tends to incriminate another defendant, it should
be viewed with caution. This does not mean, however, that you
may arbitrarily disregard that testimony. You should give that
testimony the weight you think it deserves after examining it
with care and caution and in the light of all the evidence in this
case.”
The trial court also gave CALJIC No. 3.11 which instructs:
“You cannot find a defendant guilty based upon the
testimony of an accomplice or the testimony by a codefendant
that incriminates the defendant unless that testimony is
corroborated by other evidence which tends to connect that
defendant with the commission of the offense. [¶] Testimony of
an accomplice or by a codefendant includes any out-of-court
statement purportedly made by an accomplice or a codefendant,
received for the purpose of proving that what the accomplice or
the codefendant stated out of court was true.”
B. Legal Principles
A claim of instructional error is reviewed de novo. (People
v. Cole (2004) 33 Cal.4th 1158, 1210 [17 Cal.Rptr.3d 532, 95 P.3d
811].) The challenged instruction is viewed “in the context of the
instructions as a whole and the trial record to determine whether
there is a reasonable likelihood the jury applied the instruction in
23
an impermissible manner.” (People v. Houston (2012) 54 Cal.4th
1186, 1229 [144 Cal.Rptr.3d 716, 281 P.3d 799].)
When a defendant takes the stand, denies guilt and
implicates a codefendant in a joint trial, “a trial court has
authority to instruct the jury that his testimony should be viewed
with distrust as that of an accomplice.” (People v. Alvarez (1996)
14 Cal.4th 155, 218 (Alvarez).) This is so because “an accomplice
who testifies against a defendant deserves ‘close
scrutiny’ . . . even if he is himself a defendant. Like any other
accomplice, an accomplice-defendant has the motive, opportunity,
and means to try to help himself at the other’s expense.” (Id. at
p. 219.)
People v. Guiuan (1998) 18 Cal.4th 558 (Guiuan) provides
guidance on the proper practice on how accomplice testimony
instruction should be given. Prior to Guiuan, People v. Williams
(1988) 45 Cal.3d 1268 set out a 3 part rule on the trial court’s
duty to instruct jurors regarding accomplice testimony: (1) when
an accomplice is called by the prosecution, the court must
instruct that accomplice testimony should be viewed with
distrust, (2) when the accomplice is called by the defendant alone,
it is error for the court to instruct the jurors sua sponte that it
should view the testimony with distrust, and (3) when an
accomplice is called by both the prosecution and the defense, the
instruction should be tailored to relate only to the testimony on
behalf of the prosecution. (Guiuan, supra, 18 Cal.4th at pp. 565-
569.) These rules were laid on top of another rule stated in
People v. Graham (1978) 83 Cal.App.3d 736, which held that it
was error, absent a request by the defendant, for a trial court to
give the accomplice testimony instruction when a witness was
24
called by the prosecution but gave favorable testimony for the
defendant. (Id. at p. 743.)
To assist trial courts and attorneys navigate this territory,
Guiuan held, rather than focusing on which side called the
witness, or, whether the testimony was favorable or unfavorable
to a particular side, the wording of CALJIC No. 3.18 should
instead refer to “testimony that tends to incriminate the
defendant.” (Guiuan, supra, 18 Cal.4th at pp. 568-570.) Guiuan
further explained, “the jury should be instructed to the following
effect whenever an accomplice, or a witness who might be
determined by the jury to be an accomplice, testifies: ‘To the
extent an accomplice gives testimony that tends to incriminate the
defendant, it should be viewed with caution. This does not mean,
however, that you may arbitrarily disregard that testimony. You
should give that testimony the weight you think it deserves after
examining it with care and caution and in the light of all the
evidence in the case.’ ” (Id. at p. 569, italics added.)
Guiuan went further. In calling to change the words “with
distrust” to “with caution,” the court “explained that ‘[t]he word
“caution,” connoting “care and watchfulness,” signals the need for
the jury to pay special heed to incriminating testimony because it
may be biased, but avoids the suggestion that all of the
accomplice’s testimony, including favorable testimony, is
untrustworthy.’ [Citation.] Because the accomplice testimony
instructions expressly single out ‘incriminating’ testimony to be
viewed with care and caution, they do not suggest the jury must
apply this standard to all testimony given by an accomplice.”
(People v. Johnson (2016) 243 Cal.App.4th 1247, 1274 (Johnson).)
Despite these safeguards, trial courts must still exercise a
level of care to avoid prejudice when the accomplice’s testimony is
25
simultaneously both incriminating and self-exculpatory. Johnson
involved a three-count prosecution for murder, attempted
murder, and attempted kidnapping against two defendants. One
of the defendants was also charged with a weapons enhancement
under section 12022, subdivision (b)(1) for the use of a bat. Both
defendants took the stand and testified the other used the bat.
(Johnson, supra, 243 Cal.App.4th at p. 1275.)
Johnson noted, “[w]e discern a potential for prejudice
. . . only if testimony by one of the defendants was at once
incriminating as to the other defendant (and so to be viewed with
caution and as requiring corroboration) and self-exculpatory (and
so to be viewed according to the usual standards).” (Johnson,
supra, 243 Cal.App.4th at pp. 1274-1275.) The court further
explained, “[t]his might have been true of the testimony
regarding the assault with the bat, which Johnson attributed to
Thornton and Thornton attributed to Johnson. Since each
blamed the other, and only one such assault occurred, the same
testimony that tended to incriminate the other defendant also
tended to exonerate the testifying defendant.” (Id. at p. 1275.)
Johnson found no prejudice because the jury did not find the use
of the bat “true.” (Ibid.)
C. Analysis
Thomas relies heavily on People v. Fowler (1987) 196
Cal.App.3d 79 (Fowler), a case decided before Alvarez, which held
a trial court commits error if it gives the accomplice testimony
instruction (to view with “distrust” testimony by a codefendant)
when a defendant takes the stand to give self-exculpatory
testimony which incriminates a codefendant. (Id. at p. 87.)
Fowler involved a two-defendant prosecution for voluntary
manslaughter where one of the defendants testified in trial that
26
the other defendant “ ‘was mad and was banging [the victim’s]
head on the concrete’ ” which led to the victim’s death. (Id. at p.
84.) “The court instructed the jury, ‘[t]he testimony of an
accomplice which tends to incriminate the other in the offense for
which they are on trial should be viewed with distrust.’ ” (Id. at
p. 85.) Decisional law in this area has moved quite a bit since
Fowler was published. Alvarez, which authorizes, but does not
mandate, trial courts to instruct in such circumstances, is the
current rule.
Thomas also cites People v. Coffman and Marlow (2004)
34 Cal.4th 1 (Coffman and Marlow), and argues, the proper
method for trial courts to instruct when faced with this issue is to
more expressly explain how jurors should approach their task. In
Coffman and Marlow, both defendants testified, and each gave
self-exculpatory testimony and incriminated the other defendant.
To address this situation, the trial court modified CALJIC No.
3.18 to read:
“ ‘You are to apply the general rules of credibility when
weighing Cynthia Coffman’s testimony in her own defense. [¶]
But if you find her to be an accomplice, then in weighing her
testimony against James Gregory Marlow you ought to view it
with distrust. [¶] This does not mean that you may arbitrarily
disregard such testimony. [¶] But give to it the weight to which
you find it to be entitled after examining it with care and caution
and in the light of all the evidence in the case. [¶] You are to
apply the general rules of credibility when weighing James
Gregory Marlow’s testimony in his own defense. [¶] But if you
find him to be an accomplice then in weighing his testimony
against Cynthia Coffman you ought to view it with distrust. [¶]
This does not mean that you may arbitrarily disregard such
27
testimony. [¶] But give to it the weight to which you find it to be
entitled after examining it with care and caution and in the light
of all the evidence in the case.’ ” (Coffman and Marlow, supra,
34 Cal.4th at p. 104.)
Thomas contends, since the trial court’s instruction was
unlike Coffman and Marlow and more like Fowler, giving the
instruction was error. We disagree.
First, the trial court’s instruction here was not like Fowler,
but in a form approved in Guiuan using the words “with caution”
instead of “with distrust.” The jury was also informed that the
testimony to be viewed with caution was not the entire
testimony, but only “[t]o the extent that an accomplice or a
codefendant gives testimony that tends to incriminate another
defendant[.]” (CALJIC No. 3.18.) Although Thomas asserts the
“to the extent” language in CALJIC No. 3.18 “did not render the
instruction correct” because it did not clarify the two different
credibility rules depending on how the jury used the testimony,
we cannot fathom how any juror would misunderstand the proper
application of this rule – that the testimony given by an
accomplice that incriminates a codefendant is to be viewed with
caution and nothing more. Indeed, “[a]lthough the Supreme
Court approved the instruction that was given in Coffman and
Marlow, which explicitly addressed how the jury should treat an
accomplice’s testimony in his or her own behalf, it did not require
this instruction.” (Johnson, supra, 243 Cal.App.4th at p. 1274.)
It was proper for the trial court to give CALJIC No. 3.18 without
modifying the instruction like in Coffman and Marlow.
Furthermore, the potential problem of a self-exonerating
testimony that simultaneously incriminates as discussed in
Johnson does not exist here. In Johnson, a single bat was used to
28
commit the crime and since “only one such assault occurred,” only
one person could have used the bat. (Johnson, supra, 243
Cal.App.4th at p. 1275.) While Thomas’s testimony in trial
generically fits this rubric, it did not box the jurors into an
either/or scenario. The trial court gave the standard instruction
on aiding and abetting. As a possible aider and abettor of the
Ford robbery/murder, the jurors would need to conclude he
shared in Cleveland’s alleged intent to rob Ford. On this,
Thomas testified as follows:
Counsel for Thomas: “And once - - was there any
particular reason why you stopped where you did? I’m talking
about after the 70th Street?”
Mr. Thomas: “Yeah, to calm down, man, and to confront
Cleveland.”
Here, Thomas had yet to point the accusatory finger at
Cleveland for allegedly robbing and killing Ford. As the court
explained in Johnson, “[t]he essence of each defendant’s defense
was that he did not intend to facilitate an attempted robbery or
kidnapping, Johnson because he had independent motives for
going to the campground and Thornton because he was unaware
of the direct perpetrators’ intent. As there was nothing in either
defendant’s defense of ‘I did not intend to do this’ that could be
viewed as incriminating the other defendant, nothing in [the
accomplice testimony instruction] directed the jury to view this
testimony under anything other than the usual rules for
evaluating a witness’s credibility.” (Johnson, supra,
243 Cal.App.4th at pp. 1274-1275.)
Here, the same reasoning applies with equal force. When
Thomas testified he stopped the car to calm down and to confront
Cleveland for his prior actions before the Ford incident, he had
29
yet to incriminate Cleveland of the robbery. According to
Thomas’s testimony above, he did not stop the car with the intent
to rob Ford. As explained in Johnson, this type of statement was
not simultaneously self-exonerating and incriminatory and the
normal rule on credibility applied.
Thomas next contends CALJIC No. 3.11 was erroneous
because the instruction failed to inform the jury that “when it
viewed . . . [Thomas’s] testimony for the purpose of assessing [his]
own guilt or innocence, no corroboration was required.”
This argument lacks merit. CALJIC No. 3.11 informed the
jury that corroboration is required only when accomplice
testimony is used to convict a defendant. (CALJIC No. 3.11 [“You
cannot find a defendant guilty based upon the testimony of an
accomplice or the testimony by a codefendant that incriminates
the defendant unless that testimony is corroborated by other
evidence which tends to connect that defendant.”].) There is no
reasonable likelihood the jurors would have misunderstood this
instruction and misapplied it in the manner Thomas suggests.
There was no error.
III. Allegation of Prosecutorial Misconduct
Thomas next contends the prosecutor committed
misconduct in closing argument when she lessened the
reasonable doubt standard by asserting that only what was in
evidence – not the absence of evidence – could establish
reasonable doubt. We disagree.
A. Relevant Proceeding
Before counsel’s closing arguments, the trial court read the
general instructions to the jury including CALJIC No. 2.908 on
8 CALJIC No. 2.90 given by the trial court read: “A
defendant in a criminal action is presumed to be innocent until
30
reasonable doubt. Near the end of her rebuttal argument, the
prosecutor discussed reasonable doubt with the jury:
The Prosecutor: “And what the defense is asking you to do
is to say that there is a reasonable doubt as to each defendant’s
guilt. You have the jury instruction that talks about reasonable
doubt not being a mere possible doubt because everything related
to human affairs is open to some possible or imaginary doubt. [¶]
If you’re being asked to question ‘What if,’ or consider things that
we don’t know, or wonder if facts could have been proved, they’re
asking you to speculate, to go beyond what you have in evidence.
They’re asking you to imagine facts and circumstances. If you
have to image it or guess about it, it is not evidence and should
not be considered or discussed. It is an imaginary doubt, not a
reasonable doubt.”
When the prosecutor made the above comments to the jury,
no defense counsel objected. Much earlier in the rebuttal
argument, the prosecutor commented on the closing argument by
counsel for Thomas:
The Prosecutor: “ ‘The police did a crappy investigation.’
[Counsel for Thomas] pointed to two specifics. Sorry it’s so small,
the writing. He was talking about the print on the Rossi. Well,
the contrary is proved, and in case of a reasonable doubt whether
his guilt is satisfactorily shown, he is entitled to a verdict of not
guilty. This presumption places upon the People the burden of
proving him guilty beyond a reasonable doubt. [¶] Reasonable
doubt is defined as follows: It is not a mere possible doubt;
because everything relating to human affairs is open to some
possible or imaginary doubt. It is that state of the case which,
after the entire comparison and consideration of all the evidence,
leaves the minds of the jurors in that condition that they cannot
say they feel an abiding conviction of the truth of the charge.”
31
you heard Detective Callian talk about the choices he had to
make and that he didn’t even actually see that gun, that it was
taken to firearms to rush the job on getting ballistics evidence,
because, as I told you in the very beginning, in opening
statements, the ballistics in this case is everything. And you
notice none of their arguments really touched on ballistics. None
of their arguments touched on the actual evidence in this case.”
Counsel for Cleveland: “That’s shifting the burden onto the
defense.”
The trial court overruled the objection.
B. Legal Principles
“Under the federal Constitution, a prosecutor commits
reversible misconduct only if the conduct infects the trial with
such ‘ “unfairness as to make the resulting conviction a denial of
due process.” ’ [Citation.] By contrast, our state law requires
reversal when a prosecutor uses ‘deceptive or reprehensible
methods to persuade either the court or the jury’ [citation] and
‘ “it is reasonably probable that a result more favorable to the
defendant would have been reached without the misconduct” ’
[citation]. To preserve a misconduct claim for review on appeal, a
defendant must make a timely objection and ask the trial court to
admonish the jury to disregard the prosecutor’s improper
remarks or conduct, unless an admonition would not have cured
the harm.” (People v. Davis (2009) 46 Cal.4th 539, 612 [94
Cal.Rptr.3d 322, 208 P.3d 78] (Davis).) Defense counsel’s failure
to object and request an admonition waives a misconduct claim
on appeal “unless an objection would have been futile or an
admonition ineffective.” (People v. Arias (1996) 13 Cal.4th 92,
159.) Under state law, when the claim “focuses on comments
made by the prosecutor before the jury, the question is whether
32
there is a reasonable likelihood that the jury construed or applied
any of the complained-of remarks in an objectionable fashion.”
(People v. Berryman (1993) 6 Cal.4th 1048, 1072.)
Where the alleged misconduct arises from the prosecution’s
rebuttal argument, “[p]rosecutors may make vigorous arguments
and fairly comment on the evidence; they have broad discretion to
argue inferences and deductions from the evidence to the jury.
[Citation.] In particular, ‘[r]ebuttal argument must permit the
prosecutor to fairly respond to arguments by defense counsel.’
[Citations.] Indeed, ‘even otherwise prejudicial prosecutorial
argument, when made within proper limits in rebuttal to
arguments of defense counsel, do[es] not constitute misconduct.’
[Citations.] In such circumstances, the prosecutor ‘cannot be
charged with misconduct if [her] comments only spill over
somewhat into a forbidden area; the departure from propriety
must be a substantial one.’ [Citation.]” (People v. Reyes (2016)
246 Cal.App.4th 62, 74.) “[A] prosecutor is justified in making
comments in rebuttal, perhaps otherwise improper, which are
fairly responsive to argument of defense counsel and are based on
the record.” (People v. Hill (1967) 66 Cal.2d 536, 560.) Despite
such leeway, “it is improper for the prosecutor to misstate the law
generally [citation], and particularly to attempt to absolve the
prosecution from its . . . obligation to overcome reasonable doubt
on all elements [citation].” (People v. Marshall (1996) 13 Cal.4th
799, 831.)
C. Analysis
The Attorney General claims Thomas forfeited this claim
by failing to object and seek a curative admonition from the trial
court. Thomas claims an objection was raised by counsel for
Cleveland when the prosecutor commented on the closing
33
argument by counsel for Thomas. He further contends, based on
the trial court’s ruling on the earlier objection by counsel for
Cleveland, an objection would have been futile.
“A defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion, and on the same ground,
the defendant objected to the action and also requested that the
jury be admonished to disregard the perceived impropriety.
[Citation.]” (People v. Thornton (2007) 41 Cal.4th 391, 454, italics
added.) This is so, because in many instances, a timely objection
and an admonition “would have cured any resulting harm.”
(Ibid.) This did not happen. Furthermore, the objection by
counsel for Cleveland to an earlier portion of the prosecutor’s
rebuttal argument was on shifting the burden of proof, not on
lessening the reasonable doubt standard. In any event, counsel
for Thomas did not join the objection.
Recognizing the lack of an objection to preserve the specific
issue, Thomas contends an objection would have been futile based
on the trial court’s response to an earlier objection. When the
prosecutor explained the circumstantial evidence instruction,
counsel for Cleveland objected on the ground the explanation
misstated the law. To this the trial court responded, “They have
all the law. I have great confidence that this jury is going to be
able to handle the evidence and apply the law.” From this
comment, Thomas discerns other objections would have been
futile – that this comment suggests the trial court was
predisposed to overruling objections on alleged misstatements on
the law. On the contrary, the record shows the trial court
diligently and courteously dealt with each objection and when
deemed appropriate, sustained them. For example, when counsel
for Lenoir misstated the circumstantial evidence standard, the
34
trial court properly sustained the objection. Thomas’s futility
argument is not supported by the record. By not interposing a
specific objection, Thomas has forfeited this contention.
In any event, the prosecutor did not commit misconduct.
The prosecutor’s rebuttal comments at issue are connected to a
ruling the trial court made during Lenoir’s closing argument.
Counsel for Lenoir argued the gun shot residue test would have
shown Cleveland to be the shooter:
Counsel for Lenoir: “If any case ever called for gunshot
residue, it is this case . . . [¶] . . . All it would have taken is four
little pieces of foam . . . and somebody to look at it with a
microscope could tell you which one of these people fired a
firearm that night. [¶] Five dollar’s worth - - would you have
liked to have had that? Wouldn’t that have made your job a little
bit easier? Just to say, at the least, to have a simple test that
told you: ‘this guy is consistent with firing a firearm; this one
isn’t; this one isn’t and this one isn’t.’ If there had, I’m sure that
it would have shown that Mr. Cleveland fired a firearm.”
Counsel for Cleveland: “I’m going to object to that.”
The trial court initially overruled the objection but
conducted a sidebar conference. There, counsel for Cleveland
argued while Lenoir can point the accusatory finger at Cleveland
as the shooter, it was improper for counsel for Lenoir to speculate
the GSR would have shown Cleveland to have been the shooter.
When the prosecutor was asked by the trial court her views, she
agreed with counsel for Cleveland. Thereafter, the trial court
informed the jury to disregard the argument about what the GSR
test would have shown as speculative. This places the
prosecutor’s comment in its proper light. In her rebuttal, rather
than attempting to lessen the reasonable doubt standard, the
35
prosecutor was responding to a defense argument that invited the
jurors to speculate. The argument was made within the proper
limits of rebuttal and was responsive to an argument made by
counsel for Lenoir. The prosecutor never argued reasonable
doubt could not be based on lack of evidence. Instead, she urged
the jurors not to speculate about the scientific evidence. There
was no misconduct.
Thomas next asserts his trial counsel’s failure to object to
the alleged misconduct deprived him effective assistance of
counsel. To obtain relief on appeal for ineffective assistance of
counsel, the appellant must establish (1) that his counsel’s
performance was so deficient that it amounted to a failure to
function as the “counsel” guaranteed by the Sixth Amendment,
and (2) that the deficiency prejudiced the outcome. (See
Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland);
and see, e.g., People v. Pensinger (1991) 52 Cal.3d 1210, 1252.)
An attorney’s performance is deficient under Strickland when his
conduct falls below objective standards of reasonableness under
prevailing professional norms. (Strickland, supra, at p. 688.)
Prejudice under Strickland is established where there is a
reasonable probability that, absent counsel’s alleged errors, the
outcome of the proceeding would have been different. (Id. at
p. 694.) “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” (Ibid.)
Here, appellant bears the burden to establish ineffective
assistance on both deficient performance and prejudice.
(Strickland, supra, 466 U.S. at p. 690.) The silent record, as here,
does not establish either prong of the Strickland test.
Concerning ineffective assistance of counsel claims on a silent
record raised on appeal, the California Supreme Court has
36
explained unless counsel was asked for an explanation and failed
to answer, or there simply cannot exist a satisfactory
explanation, claims on appeal are to be rejected. (People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266.) Here, we have no way
to discern why trial counsel failed to object. As such, on this
appeal, we reject Thomas’s claim of ineffective assistance.
IV. Allegation of Misconduct by Counsel for
Codefendant Cleveland
Thomas contends counsel for Cleveland committed
pervasive misconduct which denied Thomas due process of law.
We disagree.
A. Legal Principles
Both Thomas and the Attorney General cite People v.
Estrada (1998) 63 Cal.App.4th 1090 (Estrada), as authority for
the rule that misconduct by counsel for a codefendant can violate
an appellant’s constitutional rights. (Id. at pp. 1095-1096.)
Recognizing the dearth of precedent in this area of the law,
Estrada resorted to the “prosecutorial misconduct” rubric and
applied the federal, as opposed to the state, rule to determine
whether codefendant’s counsel violated the appellant’s due
process rights. (Ibid.)
The conduct of codefendant’s counsel in Estrada were
egregious and specifically targeted at the appellant in that
appeal. First, codefendant’s counsel suggested to the jury in
opening statement and closing argument that information
outside of the evidence presented at the trial showed appellant
was guilty. (People v. Estrada, supra, 63 Cal.App.4th at pp.
1099-1100.) Next, apparently upset that the trial court had not
granted his severance motion, counsel for codefendant told the
jury that appellant had invoked his Fifth Amendment right
37
against self-incrimination when he called appellant to testify in
his own client’s preliminary hearing. (Id. at pp. 1100-1101.)
When appellant called his previous lawyer to the stand to testify,
counsel for codefendant suggested his first lawyer believed
appellant was guilty. (Id. at pp. 1103-1104.) When appellant
testified, the trial court permitted the appellant to be impeached
with his prior conviction. Instead of staying in bounds, counsel
for codefendant “repeatedly cited the prior convictions to show
appellant’s propensity to commit crimes like those” charged
against the appellant. (Id. at p. 1105.) In his closing argument,
counsel for codefendant argued appellant’s trial counsel did not
believe appellant’s testimony. (Id. at p. 1106.)
In summarizing its view of counsel for codefendant’s
misconduct, the Estrada court wrote, “We join with appellant’s
trial counsel, the prosecutor and trial judge in noting that we
have never seen a display of misconduct rivaling that of [counsel
for the codefendant] in this case. Whatever his motivation, he
did everything in his power, ethical and otherwise, to destroy
appellant’s credibility.” (Estrada, supra, 63 Cal.App.4th at
p. 1106.)
Prosecutorial misconduct under federal law is based on the
Fourteenth Amendment of the federal Constitution. (People v.
Powell (2018) 6 Cal.5th 136, 172.) Estrada cites two cases as
authority that misconduct by a codefendant’s counsel can violate
a defendant’s constitutional rights: People v. Hardy (1992) 2
Cal.4th 86, and, People v. Haldeen (1968) 267 Cal.App.2d 478.
Both Hardy and Haldeen dealt with a defendant’s right to remain
silent under the Fifth Amendment of the federal Constitution and
38
extended the Griffin rule9 that prevents a prosecutor from
commenting on a defendant’s silence at trial to codefendant’s
counsel. The Fifth Amendment was incorporated and made
applicable to the states through the Fourteenth Amendment.
(Malloy v. Hogan (1964) 378 U.S. 1, 6.)
The Fourteenth Amendment of the federal Constitution
requires state action.10 It “ ‘erects no shield against merely
private conduct, however discriminatory or wrongful.’ [Citation.]”
(Garfinkle v. Superior Court (1978) 21 Cal.3d 268, 276.) There is,
however, a U.S. Supreme Court precedent finding state action
based on a private actor’s conduct in a civil trial. In Edmonson v.
Leesville Concrete Co., Inc. (1991) 500 U.S. 614 (Edmonson),
Justice Kennedy held a private attorney’s use of peremptory
challenges in jury selection of a civil trial “represents a unique
governmental function delegated to private litigants by the
government and attributable to the government for purposes of
invoking constitutional protections against discrimination by
reason of race.” (Id. at p. 627.) As rationale for finding private
actor’s action constitutes “state action,” Justice Kennedy
considered that “[r]ace discrimination within the courtroom
raises serious questions as to the fairness of the proceedings
9 Griffin v. State of California (1965) 380 U.S. 609 held the
prosecutor’s comments on the defendant’s failure to testify
violated the self-incrimination clause of the Fifth Amendment.
(Id. at p. 613.)
10 Clause 1 of the Fourteenth Amendment states in pertinent
part, “No State shall . . . deprive any person of life, liberty, or
property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws.” (U.S.
Const., 14th Amend., cl. 1.)
39
conducted there. Racial bias mars the integrity of the judicial
system and prevents the idea of democratic government from
becoming a reality. [Citations.]” (Id. at p. 628.)
A similar rationale applies here. While counsel for
Cleveland is not the prosecutor, he was involved in a criminal
jury trial which can only happen through state action when the
prosecution decides to utilize its executive power to file a criminal
case. When counsel for a codefendant attacks another defendant,
such conduct may inadvertently assist the prosecutor’s case
against such a defendant. While a defense attorney’s job is to
provide undivided loyalty to his or her client against the
prosecution, in a multi-defendant case, this job can take on the
attributes of a “prosecutor” by casting blame on a codefendant.
In such circumstances, counsel cannot be permitted to roam as a
free radical and trounce on the rights of the other defendants.
Furthermore, a criminal trial is overseen by a trial judge
who is an appointed/elected state official, and the trial occurs in a
public courtroom where the accused enjoys the protection of
various constitutional rights under both state and federal laws.
In a criminal case, a trial judge has a statutory duty “to control
all proceedings during the trial, and to limit the introduction of
evidence and the argument of counsel to relevant and material
matters, with a view to the expeditious and effective
ascertainment of the truth regarding the matters involved.”
(§ 1044.) “In exercising [this] control . . . the judge has a duty to
be impartial and to make certain that the defendant in a criminal
case is afforded a fair trial.” (People v. Blackburn (1982) 139
Cal.App.3d 761, 764-765.) Unlike a civil trial as in Edmonson, a
criminal trial involves the liberty interests of the accused. In a
multi-defendant case, each defendant is entitled to a fair and
40
impartial trial. In such a setting, misconduct by a codefendant’s
counsel within the courtroom shifting blame to a particular
codefendant through misconduct raises serious questions as to
the fairness of the proceedings and such misconduct has the
potential to mar the integrity of the judicial system. Therefore,
we hold in the context of a multiple defendant criminal trial
brought by the state, misconduct by a codefendant’s counsel
constitutes state action for purposes of the Fourteenth
Amendment. We agree with Estrada, the rules for assessing
prosecutorial misconduct under federal law fits best.
As noted in section III(B) of this opinion, a prosecutor
commits reversible misconduct only if the conduct infects the trial
with such unfairness as to make the resulting conviction a denial
of due process. (Davis, supra, 46 Cal.4th at p. 612.) Counsel
must raise a specific objection and seek a curative admonition to
preserve the issue on appeal unless such an objection would have
been futile. (Ibid.)
B. Analysis
1. “Three White Attorneys”
During his closing argument, counsel for Cleveland argued
in favor of finding Cleveland’s former girlfriend, Mercedes Paries,
a credible witness. Paries is African American and did not know
Cleveland was a member of a criminal street gang:
“Mercedes Paries, she’s not a gang member. She has a real
job; she’s an armed guard for Metro. She was in a relationship
with [Cleveland] for seven years. She told you during that time
she gave him phones. Basically what she told you is, she has him
on an electronic collar. And, you know, the truth isn’t always
pretty . . . [¶] . . .
41
“What is it that the three white attorneys find so difficult to
understand about . . . [¶] . . . a black woman in South L.A. . . .”
At this point, counsel for Ritchie objected which the trial
court overruled.
Thomas contends this statement served no purpose but to
incite racial passions and prejudices. We disagree.
First, Thomas forfeited this issue by failing to lodge a
specific objection. Second, we do not deem the statement as
misconduct that rises to the level of a federal due process
violation. The apparent purpose behind the comment was to
dispel myths about implied bias – that people of different races do
not fully understand the cultural norms of those belonging to
other races. While the comment was “out of the box,” the intent
was not to inflame passion and prejudice, quite the opposite. In
any event, our reading of the record shows gang warfare between
rival gangs of the same race was the prosecution’s overall theory.
This case did not involve issues of racial tension. Third, unlike
the misconduct that occurred in Estrada which were directed at
the appellant in that case, the comments here were not focused
on Thomas and we find it hard to see how they negatively
impacted Thomas. This was not a misconduct, if at all, of a
nature that violated Thomas’s due process right under the
Fourteenth Amendment.
2. Comments About Codefendant Ritchie’s
Belizean Background
Shannon Ruffinelli lived with Beverly at the residence
where the shooting at an inhabited dwelling occurred. During
her testimony, she indicated she was involved in an altercation
not related to the shooting where she was assaulted in an
attempt to break up the argument. She identified two unknown
42
men as being involved: one - a tall mixed-race person, maybe a
foreigner, and the other - a person with possibly long hair.
Counsel for Cleveland attempted to cast codefendants
Ritchie and Lenoir as these two individuals. He cross-examined
Ritchie to achieve this end:
Counsel for Cleveland: “You are a light-skinned, tall
foreigner, are you not?
“[Mr. Ritchie:] No, I’m not a foreigner. I was born and
raised in South Central L.A.
“[Counsel for Cleveland:] You are Belizean?
“[Mr. Ritchie:] Belizean, yes.
“[Counsel for Cleveland:] And the person with you with the
darker brown skin and the long hair, that was Mr. Lenoir?
“[Mr. Ritchie:] I don’t know what you are trying to
insinuate. I don’t understand your questioning.
“Counsel for Cleveland:] When you guys punched
Ms. Ruffinelli - -
“[Mr. Ritchie:] I never hit a woman. I don’t know what you
are talking about.
“[Counsel for Cleveland:] You are a pimp and you never hit
a woman?
“[Mr. Ritchie:] I don’t need to.”
At this point, counsel for Ritchie objected which the trial
court sustained.
On cross-examination of Thomas, counsel for Cleveland
asked Thomas whether he observed Ritchie strike Ruffinelli.
Thomas replied that no one had gotten out of the car. Counsel for
Cleveland also cross-examined Lenoir by asking whether it was
he or Ritchie who had struck Ruffinelli. Lenoir responded, “That
43
was neither one of us.” In his closing argument, counsel for
Cleveland argued:
“Shannon Ruffinelli got sucker punched, and when that
happened, standing next to her was a tall, light-skinned foreign
guy with a darker brown-skinned male with longer hair.
Between Ruffinelli and O.J., who are you going to
believe? . . . Watch what I do with this one. Do you ‘Beleaze’ it?”
Again, this issue is forfeited. Counsel for Thomas neither
raised a specific objection nor sought a curative admonition.
Even if we were to find the issue not forfeited, the comments
were not misconduct of a nature that violates Thomas’s due
process rights. The comments were not directed at Thomas, and
the primary purpose was to discredit the testimony of Ritchie and
Lenoir, and tangentially that of Thomas.
3. Use of Argumentative Questioning
Thomas next asserts counsel for Cleveland repeatedly
posed argumentative questions to taint the jury and falsely imply
the existence of evidence.
In his cross-examination of Ritchie, counsel attempted to
cast Ritchie as a morally reprehensible person who, despite
having two daughters, worked as a pimp in Las Vegas. In an
effort to develop his theory that Ritchie came to Los Angeles to
jump Lenoir into the Eight Trey Gangster Crips, counsel for
Cleveland questioned Ritchie’s manhood by asking, “Because the
reality is you did come to put Mr. Lenoir on, but you are such a
coward you had to take drugs in order to do it; right?” Here, the
trial court sustained an objection lodged by counsel for Ritchie.
When counsel for Cleveland cross-examined Lenoir, he
asked, “And you are so excited about getting on Eight-[Trey], you
are in the car with the gun flashing gang signs and smiling all
44
big; right?” When Lenoir testified he had told the police he was
willing to take responsibility for the possession of a firearm,
counsel for Cleveland asked, “So you are willing to admit that you
shot the gun, but you are not willing to admit that you killed
somebody when you shot the gun?” The trial court sustained an
argumentative objection lodged by counsel for Lenoir.
Counsel for Thomas did not join the objections raised by
counsel for Ritchie and Lenoir. “Generally, failure to join in the
objection or motion of a codefendant constitutes a waiver of the
issue on appeal.” (People v. Santos (1994) 30 Cal.App.4th 169,
180, fn. 8, disapproved on other grounds in People v. Dalton
(2019) 7 Cal.5th 166.) As such, Thomas has forfeited this issue.
In any event, unlike Estrada, these argumentative questions
were not aimed at Thomas. Again, we fail to see how these
questions prejudiced Thomas.
4. Distortion of Prior Statements of Codefendants
Thomas claims counsel for Cleveland mischaracterized or
misquoted transcripts accusing the codefendants that they had
made admissions of certain criminal conduct before the trial.
Counsel for Cleveland asked Lenoir whether he admitted to
shooting at an inhabited dwelling when he spoke to the police at
the time of his arrest. In his statement to the police, Lenoir had
stated, “There wasn’t even no time for us to do nothing. When we
first did that, we pulled away a couple of blocks.” In another
question to Lenoir, counsel for Cleveland asked whether he had
told the detectives that Thomas was close to the decedent Ford at
the time of the shooting. The transcript showed Lenoir had
responded to a question of relative distance, that Thomas was
closer to Ford than Lenoir. Counsel for Cleveland asked Thomas
whether he had previously stated that Ritchie had brought the
45
gun, when, the transcript showed, Thomas had stated Lenoir had
brought the gun.
Thomas has forfeited these issues because he did not raise
an objection. Even if he had, these missteps by counsel for
Cleveland, whether done intentionally or because of sloppy
memory, did not prejudice Thomas because the comments did not
implicate him of criminality.
5. Arguing Facts Not in Evidence
During closing argument, counsel for Cleveland mentioned
facts not in evidence when he read portions of Thomas’s police
interview:
“Because I’m still going to jail . . . the same extent as him,
and that ain’t the fucking truth, man. I don’t know if he
shot the niggas or not. He ain’t shot shit out of my car,
period. [¶] I don’t give a fuck about him. I would have told
you, like, ‘Look, man, that nigger shot out my car. Nigger, I
don’t have nothing to do with it. Go take his ass to jail.’
Man, he didn’t shoot out my car, man. . . . [¶] I got family
all over L.A. and them niggers are shooters, but I ain’t seen
him do shit.”
The last sentence in the statement to the police was not
admitted as evidence during the trial. It was error for counsel for
Cleveland to read it. Thomas raised no objection and thus he
forfeited the issue. On the merits, the offending statement was
not prejudicial. It only tangentially impacted Thomas. By the
end of trial, he had admitted to gang membership as an Eight
Trey Gangster Crips. In his interview with law enforcement, he
also told the police that “people don’t ask where you’re from.
They just pull up and shoot you.” The offending statement added
little, if anything, to what Thomas had already informed the jury.
46
6. Questions about Attorney-Client Privileged
Communications and Suggestion that Ritchie Testimony
was Coached
Counsel for Cleveland cross-examined Ritchie about his
testimony on direct examination that he left Los Angeles to get
away from gang life. He asked, “Is that why, or is that the
answer that [counsel for Ritchie] told you to say?” Counsel for
Ritchie objected. The trial court sustained the objection. Counsel
for Cleveland continued:
“[Counsel for Cleveland:] Did you and your attorney
discuss your testimony?
“[Mr. Ritchie:] No.
“[Counsel for Cleveland:] He didn’t- - you guys didn’t have
a conversation about what is going to be said?
“[Mr. Ritchie:] No.
“[Counsel for Cleveland:] He didn’t prepare you in any way
for this?
“[Mr. Ritchie:] No.
“[Counsel for Cleveland:] Do you wish he had?
“[Counsel for Ritchie:] Argumentative. Here we go again.
“The Court: I’m going to sustain that.
“[Counsel for Thomas:] This is also attorney-client
privilege.
“The Court: I don’t know about that, but anyway it is
sustained.”
Here, counsel for Thomas objected which preserved the
issue on appeal, although no request for a curative admonition
was made. This set of questions, aimed at eroding a witness’s
credibility, is standard and routine when defense counsel is cross-
examining a witness. It is, however, problematic when posed to a
47
defendant who is represented by counsel. It is error to do so.
However, here, the question was not posed to Thomas, but
instead, to Ritchie. Thomas fails to show how this error impacted
his own ability to receive a fair trial. This misconduct did not
impair Thomas’s Fourteenth Amendment right to due process.
7. Questions About Lying and Vouching for
Officer Credibility
Thomas contends counsel for Cleveland committed
misconduct by asking him and Lenoir if police officers and other
witnesses lied.
When Thomas testified, counsel for Cleveland asked
whether the police testimony which differed from his testimony
on which side the gun had been thrown was a lie. The trial court
sustained its own objection and noted, the question was improper
and for the jury to disregard it. Thomas was also asked whether
witness Cousins was lying. Again, the trial court sustained its
own objection.
Lenoir testified the Glock handgun was not loaded when he
was arrested. This differed from police testimony that when the
Glock handgun was recovered, it was fully loaded with one live
round in the chamber. In cross-examination, counsel for
Cleveland asked what Lenoir thought about the police testimony.
Counsel for Ritchie objected which the trial court sustained.
In both instances, the trial court sustained its own or the
objection raised by counsel. The trial court admonished the jury
to disregard the question posed to Thomas. While the questions
were improper, no prejudice resulted because Thomas admitted
having lied to the jury on two occasions – first, about seeing
Cleveland exiting a gay bar and second, about seeing Cleveland
wearing a thong.
48
Thomas also complains that in closing argument, counsel
for Cleveland vouched for the credibility of the police officers who
had collected the physical evidence. He cites a recent California
Supreme Court decision that held “the prosecutor’s arguments
that the officers would not lie because each would not put his
‘entire career on the line’ or ‘at risk’ constitute impermissible
vouching.” (People v. Rodriguez (2020) 9 Cal.5th 474, 481.) The
rationale is that “[t]he prosecutor’s career-related arguments
‘convey the impression that evidence not presented to the jury,
but known to the prosecutor, supports the charges against the
defendant and can thus jeopardize the defendant’s right to be
tried solely on the basis of the evidence presented to the jury.’
[Citation.]” (Ibid.)
This claim was forfeited by counsel for Thomas’s failure to
object. In any event, Thomas was not prejudiced by this
comment to the jury. The danger of prosecutorial vouching does
not exist, or, if it does, minimally so, when defense counsel makes
the argument. Defense counsel normally has no special or on-
going professional relationship with police officers since usually,
perhaps always, the two are professional adversaries and do not
share the common goal of prosecuting those accused of having
committed crimes.
8. Ineffective Assistance of Counsel
In section III(C) of this opinion, we set out the standard for
ineffective assistance of counsel. The same applies here.
Similar to the previous contention of prosecutorial
misconduct, Thomas contends the failure of his trial counsel to
object was ineffective representation in violation of the Sixth
Amendment right.
49
Again, appellant bears the burden to establish ineffective
assistance on both deficient performance and prejudice.
(Strickland, supra, 466 U.S. at p. 690.) Of the seven claims of
misconduct by counsel for Cleveland, counsel for Thomas objected
once and did not join in any other objections raised by
codefendants’ counsel. We reiterate, a silent record does not
establish either prong of the Strickland test unless there cannot
simply exist a satisfactory explanation. (People v. Mendoza Tello,
supra, 15 Cal.4th at p. 266.) However, satisfactory explanations
abound. Of the seven complaints raised against counsel for
Cleveland, five did not involve Thomas.
On the other two, Thomas fails to establish prejudice.
First, as to commenting on a portion of Thomas’s police interview
not admitted as evidence (“I got family all over L.A. and them
niggers are shooters, but I ain’t seen him do shit.”), the comment
added little to Thomas’s admitted testimony that he was a
member of Eight Trey Gangster Crips, and that, “Where we’re
from people don’t ask where you’re from. They just pull up and
shoot.” Second, on counsel for Cleveland’s improper “who is
lying” questions posed to Thomas, the trial court sustained its
own objection and admonished the jury to disregard them.
Nothing in the record establishes the jurors’ unwillingness or
inability to follow this admonition. Thomas fails to show
prejudice.
V. The Severance Motion Denial
Thomas contends, while the trial court’s denial of his
severance motion may have been within the bounds of the court’s
discretion based on what was known at the time the motion was
heard, the joint trial ultimately resulted in a violation of his due
process right. We disagree.
50
A. Relevant Proceedings
Thomas made two motions to sever on the same grounds –
that he and Cleveland would present conflicting defenses, and
that fear of Cleveland may prevent Thomas from testifying. The
trial court denied both motions.11 In denying the second motion,
the trial court explained its view that the two reasons cited by
Thomas were insufficient to overcome the preference for joint
trials, and that, “if there’s ever a case that needed joint trials, it’s
the conduct that occurred here where all these events . . . all four
defendants are present and involved in[.]”
B. Legal Principles
Section 1098 provides in relevant part, “[w]hen two or more
defendants are jointly charged with any public offense, whether
felony or misdemeanor, they must be tried jointly, unless the
court order separate trials.” “Section 1098 establishes a clear
legislative preference for joint trials where . . . multiple
defendants are charged with the same crimes against the same
victims. [Citations.]” (People v. Gamache (2010) 48 Cal.4th 347,
381.)
Separate trials may be appropriate “in the face of an
incriminating confession, prejudicial association with
codefendants, likely confusion resulting from evidence on
multiple counts, conflicting defenses, or the possibility that at a
separate trial a codefendant would give exonerating testimony.”
(People v. Massie (1967) 66 Cal.2d 899, 917, fns. omitted.)
11 The first severance motion was heard on May 17, 2018
during jury selection of the joint trial before the trial was
continued because of late discovery by the prosecution. The
second severance motion was heard on July 16, 2018, again
during jury selection of the joint trial.
51
Mutually antagonistic defenses, however, are not per se
prejudicial. (People v. Daveggio and Michaud (2018) 4 Cal.5th
790, 819 (Daveggio and Michaud).) On the contrary, severance is
required for antagonistic defenses only when “ ‘ “the conflict is so
prejudicial that [the] defenses are irreconcilable, and the jury will
unjustifiably infer that this conflict alone demonstrates that both
are guilty.” ’ ” (Coffman and Marlow, supra, 34 Cal.4th at p. 41.)
“If the moving party's guilt can be established by sufficient
independent evidence, ‘it is not the conflict alone that
demonstrates . . . guilt,’ and severance is not required.” (People v.
Winbush (2017) 2 Cal.5th 402, 456 [213 Cal.Rptr.3d 1, 387 P.3d
1187], quoting Coffman and Marlow, at p. 41.) A trial court’s
denial of a severance motion is reviewed under the abuse of
discretion standard, based on the facts at the time of the trial
court’s ruling. (Coffman and Marlow, at p. 41.) However, “[w]e
have held that even if a trial court’s ruling on a motion to sever is
correct at the time it was made, a reviewing court still must
determine whether, in the end, the joinder of counts or
defendants for trial resulted in gross unfairness depriving the
defendant of due process of law. [Citations.]” (People v. Rogers
(2006) 39 Cal.4th 826, 851.)
C. Analysis
Thomas appears to concede the trial court’s denial of his
severance motions were within the bounds of discretion based on
facts known at the time the motions were made. He focuses not
on the denials, but instead, on the alleged prejudice that resulted
from the failure to sever, as the basis of relief. We therefore
address the contention that the joint trial ultimately resulted in a
denial of due process.
52
“[Defendant] bear[s] the burden of establishing that the
trial was grossly unfair and denied [him] due process of law, and
‘a judgment will be reversed on this ground only if it is
“reasonably probable that the jury was influenced [by the joinder]
in its verdict of guilt.” ’ [Citation.]” (Daveggio and Michaud,
supra, 4 Cal.5th at p. 821.)
Thomas argues the joint trial was grossly unfair because of
the trial court’s instructional error on accomplice testimony and
the misconduct of counsel for Cleveland. He posits each
contention independently violated Thomas’s rights, but
collectively resulted in depriving him due process of law.
We have already addressed the underlying contentions and
found no error as to the accomplice testimony instructions, and,
no misconduct in most of the allegations against counsel for
Cleveland, and, where there was misconduct, no prejudice.
Thomas has failed to establish gross unfairness.
VI. Exclusion of Lay Opinion on Gang Territory
Thomas contends the trial court abused its discretion by
excluding Shannon Ruffinelli’s potential testimony on gang
territory. We disagree.
A. Relevant Proceedings
The prosecution’s gang experts, Detective Marlon
Prodigalidad and Officer Michael Barragan of the Los Angeles
Police Department, testified the location of the shooting near the
corner of Budlong and 70th Street, was Neighborhood Crips’
territory. Both opined that Eight Trey Gangster Crips and
Hoovers are allies and consider Neighborhood Crips a mutual
enemy. Prodigalidad further opined that Thomas, Lenoir and
Cleveland are members of Eight Trey Gangster Crips and
Ritchie, a member of Hoovers. The prosecutor argued the motive
53
for the shooting at Beverly’s home was to further the reputation
of Eight Trey Gangster Crips gang.
Thomas sought to counter the prosecution’s gang experts
through calling his own witnesses. First, he called Alex Alonso, a
professor who wrote his master’s thesis on the territoriality of
African American gangs in Los Angeles. Alonzo testified the area
of Budlong and 70th Street in Los Angeles is claimed by the
Eight Trey Gangster Crips, not the Neighborhood Crips. Thomas
also looked to introduce the testimony of Shannon Ruffinelli as
lay opinion on gang territory. Ruffinelli lived with Beverly at the
home where the shooting occurred and would have testified the
area is claimed by Eight Trey Gangster Crips.
The trial court conducted a motion in limine to determine
the foundation for her lay opinion:
“[Counsel for Thomas:] And was there a specific gang that
you knew when you were living there that claimed that territory?
“[Ms. Ruffinelli:] Yeah.
“[Counsel for Thomas:] Which gang was that?
“[Ms. Ruffinelli:] Eight-Trey Gangsters.
“[Counsel for Thomas:] And how did you know that?
“[Ms. Ruffinelli:] It’s pretty much a family oriented block.
A lot of people knew each other on [sic] in that area. So this is
how I know that.
“The Court: All right. That is not going to be good enough.
So what is the reason that you came up with, that it is Eight-Trey
Gangster Crips? How did you reach that opinion?
“[Ms. Ruffinelli:] That is that area. That is the best I can
give as good as I can.
“[Counsel for Thomas:] Did you know people who were
members of or associated with the Eight-Trey Gangster Crips?
54
“[Ms. Ruffinelli:] Not personally, no.
“[Counsel for Thomas:] Okay. Was it for safety reasons?
Is it more to know whether a gang claims a territory that you are
living in?
“[Ms. Ruffinelli:] Repeat that again?
“[Counsel for Thomas:] For your own safety, is it important
to know whether a gang claims a territory?
“[Ms. Ruffinelli:] Oh, no. No. Not for my safety. I can care
less.
“[Counsel for Thomas:] And did you ever see graffiti that
was associated?
“[Ms. Ruffinelli:] Not on the street that I lived, but
surrounding that neighborhood, yes.
“[Counsel for Thomas]: And when you say surrounding
that neighborhood - -
“[Ms. Ruffinelli:] Like grocery store, liquor stores, you
know, corner of Florence and Normandie. That’s about it.”
The trial court ruled, “I’m going to bring the hearing to a
close. I have heard enough. She doesn’t have a sufficient
foundation to give an opinion.”
During Ruffinelli’s cross-examination, the trial court again
conducted a motion in limine, outside the presence of the jury, to
determine whether a proper foundation existed for her opinion:
“[Counsel for Cleveland:] You know that neighborhood to
be an Eight-Trey Gangster Crip neighborhood?
“[Ms. Ruffinelli:] Yeah.
“[Counsel for Cleveland:] Has anyone told you this is
Eight-Trey?
“[The Prosecutor:] Objection. Leading.
55
“The Court: It is leading. Sustained. Just ask her why she
thinks that.
“[Counsel for Cleveland:] Why do you think that?
“[Ms. Ruffinelli:] You see them riding around the
neighborhood. Like I said, I grew up in Los Angeles, California.
You know the area. You know, I know every area I step into, and
like I said earlier, if you go over to that liquor store on Florence
and Normandie you will see Eight-Trey hit up there a lot and
that is just that area. [¶] You know, I don’t know how to explain
either way. I never had anybody come up to me or gang bang on
me or anything like that in that area. But that is the only way I
know that that is just that area. Just like I know where Six-o’s
are. I know where 40 Avenues are. I know where Bloods are. I
know where all that is. I was born and raised in Los Angeles. I
know where I’m at.
“[Counsel for Cleveland:] You know those are the gangs
because you’ve lived in those neighborhoods?
“[Ms. Ruffinelli:] That and I know that is what is over
there. You can look at the writing on the wall.
“[Counsel for Cleveland:] After two years of living in that
neighborhood, something must have taught you that Eight-Trey
is in that neighborhood?
“[Ms. Ruffinelli:] Just look at the writing on the walls.
“The Court: All right, anyway, I think that is - - I heard
enough. You already have a 402 hearing.”
The trial court again denied the request to admit her
opinion.
B. Analysis
“[A]n apellate court applies the abuse of discretion
standard of review to any ruling by a trial court on the
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admissibility of evidence. [Citations.]” (People v. Waidla (2000)
22 Cal.4th 690, 717.) “Under the abuse of discretion standard, ‘a
trial court’s ruling will not be disturbed, and reversal of the
judgment is not required, unless the trial court exercised its
discretion in an arbitrary, capricious, or patently absurd manner
that resulted in a manifest miscarriage of justice.’ ” (People v.
Hovarter (2008) 44 Cal.4th 983, 1004 [81 Cal.Rptr.3d 299, 189
P.3d 300].)
Admissibility of lay opinion is governed by Evidence Code
section 800.12 To be admissible, such opinions must be
“[r]ationally based on the perception of the witness.” (Evid. Code,
§ 800, subd. (a).) “A nonexpert witness may testify as to [her]
opinion only if that opinion is based on [her] own perception.”
(People v. Ogg (1968) 258 Cal.App.2d 841, 846.)
Ruffinelli failed to adequately show personal knowledge
Beverly’s home was located in Eight-Trey Gangster Crips’
territory. When asked either by counsel or by the trial court for
the basis of her personal knowledge, she gave conclusory
responses such as: 1) “It’s pretty much a family oriented block,”
and 2) “Like I said, I grew up in Los Angeles, California. You
know the area.” Ruffinelli did not personally know or associate
with any members of Eight-Trey Gangster Crips. She did not
acquire the information for personal safety reasons or because
someone had “gang bang[ed] on me.” Ruffinelli’s personal
12 Evidence Code section 800 states:
“If a witness is not testifying as an expert, his testimony in
the form of an opinion is limited to such an opinion as is
permitted by law, including but not limited to an opinion that is:
(a) Rationally based on the perception of the witness; and
(b) Helpful to a clear understanding of his testimony.”
57
knowledge was limited to observations of gang graffiti, but she
specifically noted, “Not on the street that I lived.” But the street
where she lived was the pertinent location. This was not a close
call. The trial court’s exclusion was entirely proper.
VII. Cumulative Error
Thomas lastly contends even if the individual errors were
harmless, “the errors all worked in concert” and “[t]heir
cumulative effect rendered the trial so fundamentally unfair as to
deny due process.” We disagree.
Under the “cumulative error” doctrine, “a series of trial
errors, though independently harmless, may in some
circumstances rise by accretion to the level of reversible and
prejudicial error.” (People v. Hill (1998) 17 Cal.4th 800, 844.)
“The ‘litmus test’ for cumulative error ‘is whether defendant
received due process and a fair trial.’ ” (People v. Cuccia (2002)
97 Cal.App.4th 785, 795 [118 Cal.Rptr.2d 668].)
“Lengthy criminal trials are rarely perfect, and this court
will not reverse a judgment absent a clear showing of a
miscarriage of justice.” (People v. Hill, supra, 17 Cal.4th at
p. 844.) This trial was no exception. While the SB 1437 error
requires reversal of the murder conviction, we have determined
no other error occurred except for a few minor misconducts by
counsel for Cleveland. These, even when combined, have not
deprived Thomas due process of law.
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DISPOSITION
The judgment is reversed in Count 1. The trial court is
instructed to set aside its order denying the motion for a new
trial and enter an order granting it as to Count 1. In all other
respects, the judgment is affirmed.
OHTA, J.*
We concur:
BIGELOW, P. J.
STRATTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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