People v. Cook CA2/4

Filed 2/3/22 P. v. Cook CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B300807
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA090822)
v.
TAVNER COOK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Upinder S. Kalra, Judge. Affirmed.
John A. Colucci, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Blythe J. Leszkay and Yun K. Lee, Deputy
Attorneys General, for Plaintiff and Respondent.
After he was arrested pursuant to a warrant, appellant
Tavner Cook was placed in a cell with two undercover agents and
made incriminating statements. The trial court granted
appellant’s motion to quash the arrest warrant, but denied his
motion to suppress the statements appellant made in the cell
because it found the arrest was independently supported by
probable cause. After holding an in camera hearing with the
investigating officer, the trial court also denied appellant’s
motions to disclose the identities of the two undercover agents.
Appellant, who was convicted of second degree murder and
gang and firearm enhancements, contends the court erred by
denying his motion to suppress his statements, holding an in
camera hearing without the undercover agents present, and
denying disclosure of the agents’ identities. He also argues that
the jury’s consideration of eyewitnesses’ level of certainty, as
prescribed by CALCRIM No. 315, violated his due process rights.
We reject appellant’s arguments and affirm the judgment. Law
enforcement had independent probable cause to arrest appellant,
the trial court did not err by holding an in camera hearing
without the agents present or denying appellant’s motion for
disclosure of the agents’ identities, and appellant forfeited his
instructional argument, which was also foreclosed by People v.
Lemcke (2021) 11 Cal.5th 644 (Lemcke).
PROCEDURAL HISTORY
An amended information charged appellant and Najee
Robinson with the March 8, 2015 murder of Delray Yarbrough
(Pen. Code, § 187, subd. (a)).1 The amended information further
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
alleged that the crime was committed for the benefit of, at the
direction of, and in association with a criminal street gang
(§ 186.22, subd. (b)(1)(C)), and that a principal personally used
and intentionally discharged a firearm, causing Yarbrough’s
death (§ 12022.53, subds. (b)-(e)(1)). The amended information
also alleged that appellant served a prior prison term (§ 667.5,
subd. (b)).
Appellant’s first trial ended in mistrial after the jury
hopelessly deadlocked. Prior to appellant’s second trial, the
parties extensively litigated the admissibility of appellant’s
statements, which were among the evidence not introduced at the
first trial. We discuss those proceedings more thoroughly below.
After the second trial, at which the statements were
admitted, the jury found appellant guilty of second degree
murder and found the gang and firearm allegations true. In a
bifurcated proceeding, the trial court found the prior conviction
allegation true. The trial court sentenced appellant to the
required term of 15 years to life for the murder (§ 190, subd. (a)),
plus a consecutive term of 25 years to life for the firearm
enhancement, which it expressly declined to strike. The trial
court struck the prison prior, thus imposing a total sentence of 40
years to life.2 Appellant timely appealed.
2 The trial court correctly recognized that the gang
enhancement “really doesn’t add anything” in this case, because
it required appellant to serve a minimum of 15 years on his
indeterminate term of 15 years to life before becoming eligible for
parole. (§ 186.22, subd. (b)(5).)
3
FACTUAL BACKGROUND
I. Prosecution Evidence
A. The Incident
On the evening of March 8, 2015, Denisa Williams was
sitting in her parked car on York Avenue in Hawthorne when she
saw two men, whom she later identified as appellant and
Robinson, walking up and down nearby driveways. Williams
testified that “it looked like they were aggressive and looking
anxious to do something.” They approached her car, and
appellant said, “Hey, bitch, where you from,” which Williams
understood to mean what gang was she from. Williams, a
grandmother, told them she did not “gang-bang.” Appellant then
walked away, towards a group having a barbecue outside a
nearby apartment building. Robinson told Williams they were
“looking for someone,” then followed appellant to the barbecue.
Williams responded that she was going to call the police.
Williams got out of her car and called the police, but hung
up before speaking to anyone. Shortly thereafter, Williams’s
brother, Yarbrough, came over and asked Williams about the
men. Williams told Yarbrough they were “gang-banging”; he told
her to be careful.
Shampon Beacham was attending a barbecue outside an
apartment building on York Avenue when he saw appellant and
Robinson enter the building’s courtyard. Appellant immediately
approached a fifteen-year-old boy and asked where he was from.
The teenager told appellant he was not from anywhere.
Appellant then approached a group of people playing dominoes. A
woman in the group asked appellant if he was the person who
had thrown a brick through her family’s apartment window a
week earlier. Appellant replied that he was, and said he would
4
do it again. Appellant then asked, “What kind of party is this?
It’s 118 hood.” No one responded; Beacham testified that “it got
quiet.” Appellant and Robinson left the barbecue soon thereafter.
Appellant then encountered Williams and Yarbrough on
the street. Williams testified that appellant told Yarbrough, in
an “aggressive, anxious, [and] scary” tone of voice, “This is 118,
cuz,” and asked where he was from. After Yarbrough responded
that he did not gang-bang, appellant shook his hand and
returned to the barbecue. A few seconds later, appellant came
back and said, “That’s the bitch that said she was going to call
the feds.” Appellant kept walking away, however, until
Yarbrough said, “Let me know when you want that,” in his
direction. Williams understood Yarbrough’s words as a challenge
to fight.
Appellant said “get the car,” and Robinson ran away,
toward a nearby elementary school. Appellant then approached
Williams and Yarbrough. Williams stood between Yarbrough
and appellant, facing appellant. Yarbrough forcefully pushed her
out of the way and onto the ground. Seconds later, Williams
heard three or four gunshots and saw Yarbrough on the ground.
Beacham also heard four gunshots, approximately five minutes
after he saw appellant and Robinson leave the barbecue.
Williams saw appellant walk away, toward the elementary
school, and heard a car engine start. Yarbrough, who was
dragging himself onto the sidewalk, told her to get down “‘cause
they are turning around.” Williams saw a newer model metallic
blue Nissan Maxima or Altima make a U-turn and drive toward
them. The car stopped near them, and she heard the driver,
Robinson, say “Oh, shit” before the car “took off” toward 120th
Street.
5
Wesley Lett, a neighbor, saw and heard Williams and
Yarbrough talking to a man using “elevated” voices. He heard
someone say, “go get the car,” and saw another man walking up
the street toward a car. Lett then heard three or four gunshots
and ducked behind a parked car. When he peeked out, he saw
the man who had been talking to Williams and Yarbrough
walking briskly up the street; Yarbrough was crawling in the
street. Lett also saw a bluish, newer model Nissan Maxima or
Altima make a U-turn and drive slowly past Williams and
Yarbrough; it then “took off” down 120th Street, after someone
said “Oh, no.” Beacham, who had run inside when he heard the
gunshots, also reported seeing a “dark-colored car” drive slowly
down the street. Beacham went outside to help Yarbrough after
he heard Williams yell that he had been shot.
Paramedics transported Yarbrough to the hospital, where
he died. Yarbrough sustained two gunshot wounds, including one
to the left hip that fatally lacerated his femoral artery and vein.
The parties stipulated that the two bullets the medical examiner
recovered from Yarbrough’s body were fired from a single firearm
“consistent with a .380.”
B. Investigation
Hawthorne police quickly arrived on the scene. They
located three expended shell casings near where Yarbrough had
been. The parties stipulated that the three shell casings were
.380 caliber and were fired from a single firearm. Officer Jorge
Martinez interviewed Williams, who described the two men, her
interactions with them, and their car before leaving for the
hospital. Officer Jesus Ceniceros spoke to Lett, who also
described the men and their car.
6
While Williams was at the hospital, she received a text
message from her friend “Dove.” The message contained a
picture of a cellphone displaying a photograph of appellant. Dove
told Williams he had found the phone at the scene of the
shooting. Williams told Dove he should give the phone to the
police. When Williams returned to the scene around 11:00 p.m.,
she saw Dove; he told her that a man had given the phone to the
police. Williams also showed the photograph on her phone to
Officer Martinez and told him it depicted the shooter.
Officer Martinez testified that, while he was at the crime
scene, a man handed him a cell phone. Martinez opened the
phone’s case and saw that the phone was turned on and logged
into an Instagram account with the username “Ice2GC.”
Martinez scrolled through the Instagram account and saw
approximately 30 to 40 pictures of the same man; Martinez
identified the man as appellant in court. Sometime later, after
11:00 p.m. that evening, Williams approached Martinez, told him
she knew who the shooter was, and showed him the picture Dove
had sent her. Martinez testified that the man in the photograph
was the same man featured in the Instagram account he had
reviewed.
Later analysis and data extraction of the phone recovered
numerous photographs of appellant, many of which were
admitted at trial. It also showed records of messages and calls,
which aligned with T-Mobile records for a phone number
belonging to appellant.
7
Beacham met with Detective Ralph Hernandez of the Los
Angeles County Sheriff’s Department on March 17, 2015.3
Beacham gave a description of appellant, including his distinctive
neck tattoo. Beacham met with Hernandez again in July 2015,
and selected appellant’s photo from a six-pack photo array.
Beacham said he was “90 percent sure” appellant was the person
who came to the barbecue. Beacham also identified appellant in
court on multiple occasions, including at appellant’s second trial.
Beacham said there was no doubt in his mind that appellant was
at the barbecue.
Williams also met with a detective in July 2015. She was
unable to make an identification from a photo lineup. She
identified appellant as the shooter during several court
proceedings, however, including the second trial. She said she
relied on the tattoo on his neck, and there was no doubt in her
mind that he was the shooter. Appellant showed his neck tattoo
to the jury.
Hawthorne police sergeant Kevin Keus obtained and
reviewed surveillance video from the elementary school near the
crime scene. The videos, which were played for the jury, showed
a dark-colored vehicle park near the school around 9:10 p.m. Two
men exited the car and walked down York Avenue. Around 9:15
p.m., a man ran to the car, entered the driver’s seat, and made a
U-turn with the car. As the car drove down York Avenue, the
other man tried to get in the car, but the car did not stop. That
man walked down 118th Street between 9:16 and 9:17 p.m.
3 Hernandez testified that the City of Hawthorne contacted
the Sheriff’s Department for assistance with the homicide
investigation.
8
C. Arrest and Perkins4 Operation
On July 9, 2015, at Hernandez’s direction, Los Angeles
County Deputy Sheriff Bryce Chalmers arrested appellant during
a traffic stop. Appellant was driving a gray Nissan Altima at the
time.
After his arrest, appellant was transported to jail and
placed in a cell with two civilian agents who had been briefed
about his case. Appellant’s conversation with the agents was
audio recorded, and excerpts were played for the jury. One of the
agents asked appellant, “They know?” Appellant replied, “Yeah,
they already got pretty much they, like . . . .” He continued, “they
talking about a cellphone. They say they have video and all this
other shit. Um, they say a K9 identified my car and shit like
that.” One of the agents asked if appellant dropped his phone,
and he said “Yeah.” The agent also asked if the police “got the
burner,” which Hernandez testified was slang for a gun.
Appellant said no; when the agent later asked if appellant had
gotten rid of the burner, appellant said, “Yeah,” and later said,
“everything gone.”
Appellant also said no one was with him, that the police
had refused to show him the video they claimed they had, and
“they have to pinpoint me, man.” Appellant further stated, “They
going to try to hit me with a deal.” When one of the agents asked
appellant if he thought he could “beat” the charge, appellant
responded, “Shit the phone—the phone is ugly. All this – shit, I
4Illinois v. Perkins (1990) 496 U.S. 292 (Perkins). In
Perkins, the Supreme Court held that statements a defendant
voluntarily makes to individuals he or she does not know are
associated with law enforcement are admissible at trial. (Perkins,
supra, 496 U.S. at p. 294.)
9
lost that motherfucker.” Appellant later reiterated that the “the
main thing” he was “worried about is just, like, the phone”; he
also noted that the police had swabbed him for DNA, and said,
“everything gonna be there.”
D. Gang Evidence5
At the time of the incident, York Avenue was claimed by
two rival gangs, the 118 Gangster Crips and the Acacia Blocc
Hustlers. The 118 Gangster Crips was actually an alliance of
three different gangs, the 118 Ryda Gangster Crips, the Maddass
Gangster Crips, and the Hawthorne Thug Family. The 118
Gangster Crips’s primary activities included felony tagging,
vehicle theft, drug sales, armed robberies, shootings, drive-by
shootings, and murder. Several 118 Gangster Crips suffered
criminal convictions in the years prior to the incident.
The 118 Gangster Crips’s symbols included the letter G and
a five-point star with the letter G in the middle; members often
wore clothing with sports logos that had five-point stars. In 2007,
appellant was stopped with two known Maddass Gangster Crips;
he was photographed wearing a hat that had a star with a G in
the middle. Other photographs showed appellant and others
throwing Gangster Crips signs and wearing Dallas Cowboys
clothing. Appellant’s older brothers were known 118 Ryda
Gangster Crips with the monikers “Ice” and “Baby Ice”;
appellant’s moniker was “Little Ice.” Hawthorne police detective
Bradley Jackson testified that the Instagram user name “Ice2GC”
was a reference to the moniker and the Gangster Crips. Jackson
opined that appellant was a member of the 118 Gangster Crips in
5 We summarize the gang evidence briefly, as it is largely
irrelevant to the issues presented.
10
2015.6 Based on a hypothetical that mirrored the facts of the
instant case, Jackson further opined that the March 8, 2015
shooting of Yarbrough was committed for the benefit of the gang.
II. Defense Evidence
A. Identification
Appellant called Detective Hernandez, who testified that he
interviewed Williams several hours after the incident. At that
time, she told him the shooter had been “completely” covered up
such that she did not see any tattoos. Hernandez did not arrange
a live line-up for identification purposes and did not investigate
any other potential shooting suspects. He did not show Beacham
or Williams a six-pack including appellant’s picture until after
appellant was arrested in July 2015; Hernandez included
appellant’s booking photo in the six-pack.
Hernandez testified that he interviewed Niarobi Nelson,
who was at the barbecue on March 8, 2015. An audio recording of
the interview was played for the jury. Nelson told Hernandez
that someone “banged on” her family at the barbecue and said he
was the same man who previously threw a brick through their
window. Hernandez showed Nelson a six-pack that included
appellant’s photo in position five; she said the person in position
six looked “real familiar.”
Appellant called several witnesses who testified about
various crimes committed by Shampon Beacham.
Appellant also called an expert on eyewitness memory and
suggestibility, Dr. Mitchell Eisen, Ph.D. Dr. Eisen testified that
memory is not like a camera but is changeable and malleable.
6Another Hawthorne police detective, Keith Chaffin,
opined that Robinson was a member of the Maddass Gangster
Crips.
11
Additionally, not all incidents are committed to long-term
memory; gaps in memory are filled with inferences. Memories
fade over time. Each time a memory is retrieved, new
information may be added, and memory is “reconstructed and
updated”; post-event information can thus lead to a change in
memory. Traumatic stress affects the ability to process
information, and can interfere with accurate identifications.
“Witness conformity” may also occur when people discuss an
event and their memories conform to one another.
Dr. Eisen testified that the six-pack identification process
can be suggestive. If the process is suggestive, quick and
confident selection of a suspect is not associated with accuracy.
“Post-identification feedback effect” can also cause witnesses to
become more confident in their identifications over time.
Additionally, it is not uncommon for witnesses to pick a photo
resembling a perpetrator without actually recognizing him or her.
In some cases, witnesses may be “100 percent certain” they are
picking the right person, but are proven wrong by physical
evidence.
Given a hypothetical in which a witness received a photo of
a person alleged by a friend to be the perpetrator right after the
crime, Dr. Eisen opined that the witness’s identification would be
affected by witness conformity. Given a hypothetical in which a
witness described the perpetrator as having a neck tattoo and
was then shown a six-pack in which only one person had a neck
tattoo, Dr. Eisen opined that the lineup would be suggestive.
B. Homeboy Industries and Gang Disengagement
Father Gregory Boyle, the founder of gang rehabilitation
program Homeboy Industries, testified that appellant was a “core
12
worker” at Homeboy Industries “a number of years ago.” In 2014,
appellant traveled with Boyle to Washington, D.C. to give talks.
Mary Ellen Burton was the chief of work readiness and
training at Homeboy Industries. She testified that appellant
entered Homeboy’s 18-month program in the summer of 2011 and
successfully completed the program. Appellant was employed at
Homeboy Industries until his July 2015 arrest. Burton testified
that disengaging from a gang is a process, the goal of which is to
stop criminal activity and find legal employment. Severing social
ties with gang members is not absolutely required, and occasional
social contact with gang members is not necessarily a concern.
Christy Juarez, a case manager at Homeboy Industries,
worked one-on-one with appellant from 2012 through 2015.
Appellant participated in classes, education, and therapy.
Appellant worked the morning of March 9, 2015, and had regular
attendance at work until July 10, 2015.
Mary Nalick, a mental health clinician at Homeboy
Industries, testified that everyone at Homeboy Industries was
involved in the gang disengagement process. The organization
provided therapy to those who wanted it, but participation was
not required. Nalick was appellant’s therapist from January
2013 through June 2015. Appellant attended consistently.
People who are disengaging from gangs may still socialize with
gang members, wear gang colors, or throw gang signs; Nalick
said the gang signs may be the “last to go.”
Kimi Lent, a gang intervention specialist, testified about
the “life cycle” of gang membership, from enrollment to inactivity,
and different life events that can “push” or “pull” people out of
gangs. People can become “inactive” in a gang and still socialize
with gang members and identify with the gang.
13
DISCUSSION
I. Motion to Suppress
A. Background
Appellant was arrested pursuant to a “Ramey warrant”
issued prior to the filing of a complaint and based upon probable
cause. (People v. Ramey (1976) 16 Cal.3d 263; Goodwin v.
Superior Court (2001) 90 Cal.App.4th 215, 218; § 817.) The
warrant was supported by an affidavit detailing an investigation
into an unsolved 2009 murder in which appellant was a suspect.
Though the affidavit was signed days before appellant’s arrest in
July 2015, it made no mention of the March 2015 Yarbrough
murder. Appellant moved to traverse the affidavit, quash the
warrant, and suppress the statements he made during the
Perkins operation as fruit of the poisonous tree. The prosecution
filed a written opposition.
At a hearing on the motion, affiant Detective Hernandez
testified that law enforcement decided to seek an arrest warrant
based on the 2009 murder because they had a Perkins operation
set up and “wanted to stimulate conversation about the 2009
murder.” Hernandez also previously testified, during an in
camera hearing that ultimately was disclosed to the defense, that
“we also felt that we had PC for the ’09 murder, and we figured
why arrest him on the 2015 and start the clock. Let’s see what
we can get, and then keep ticking and continue our
investigation.” The “face page” of the resultant arrest warrant
stated that it was for “MURDER, 187 P.C., a felony”; it did not
specify either the 2009 or the 2015 murder. Hernandez testified
that the face page was the only page of the warrant transmitted
to the gang surveillance unit that ultimately arrested appellant
during a traffic stop on July 9, 2015. The deputy who arrested
14
appellant told appellant he was being arrested for the 2015
murder, which led Hernandez and other officers to “change[ ]
[their] strategy” and question appellant exclusively about the
2015 murder.
The trial court granted appellant’s motion to quash the
arrest warrant. It also found “there is no good faith.”7 At a
subsequent hearing, the court considered whether there was “an
independent probable cause basis separate and apart from the
warrant.” The parties stipulated that the court, which had
presided over appellant’s first trial, could consider testimony
from that trial “regarding what evidence existed prior to
[appellant’s] arrest.” The parties did not present any further
evidence, but both orally argued the issue.
The court concluded that the arrest was supported by
independent probable cause. It explained that its first
consideration was whether “this is objective versus subjective.”
Citing Whren v. United States (1996) 517 U.S. 806, 813 (Whren),
the court determined that officers’ subjective intentions are not
relevant, so long as the circumstances, viewed objectively, justify
the action. The court accordingly concluded that its finding that
the officers lacked good faith in obtaining the arrest warrant “has
no application for this analysis[,] . . . whether there was [sic]
independent objective facts known to law enforcement collectively
to support a finding of probable cause that Mr. Cook was guilty of
the 2015 homicide in question . . . .”
The court then summarized the facts known to law
enforcement at the time appellant was arrested in July 2015.
These included eyewitness descriptions of the perpetrator that
7We quote the court’s oral statement; a written order to
which the court also referred is not in the appellate record.
15
matched appellant’s appearance; surveillance video and
eyewitness descriptions of a getaway car that was the same
model as the car appellant was driving at the time of his arrest;
the cell phone obtained near the crime scene that contained
numerous photographs of appellant; the photograph of appellant
Williams received from Dove and showed to Martinez on the
night of the crime; and Williams’s assistance in preparing a
composite drawing of the perpetrator that resembled appellant.
Considering the “totality of those facts together,” the court was
“convinced that those facts constitute a fair probability; in other
words, the person of reasonable caution would entertain a belief
Mr. Cook was the killer.” The court accordingly concluded that
“the People have met their burden, established probable cause for
the felony arrest [of] Mr. Cook in 2015. This is independent
probable cause separate and apart from the arrest warrant that
this court quashed.” The court therefore denied appellant’s
motion to suppress the statements he made to the Perkins agents
in the jail cell.
B. Analysis
Appellant contends the trial court misapplied Fourth
Amendment case law and erroneously denied his motion to
suppress. He argues that “the independent source rule does not
save the arrest,” the arrest “cannot be saved because the officers
could have gotten a proper warrant,” “Whren does not save the
arrest and the subjective belief of the officer for making the
arrest is relevant,” and the “flagrant ruse of the illegal warrant
mandates reversal.” Respondent argues that the court properly
denied the motion to suppress because the arrest was supported
by probable cause independent of the quashed arrest warrant.
16
“‘The standard of appellate review of a trial court’s ruling
on a motion to suppress is well established. We defer to the trial
court’s factual findings, express or implied, where supported by
substantial evidence. In determining whether, on the facts so
found, the search or seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment.’” (People v.
Redd (2010) 48 Cal.4th 691, 719.) We consider the correctness of
the trial court’s ultimate ruling on the motion, not the correctness
of the trial court’s reasons for making the ruling. (People v.
Letner and Tobin (2010) 50 Cal.4th 99, 145.)
“The Fourth Amendment protects ‘[t]he right of the people
to be secure in their persons, . . . against unreasonable searches
and seizures.’ Because arrests are ‘seizures’ of ‘persons,’ they
must be reasonable under the circumstances.” (District of
Columbia v. Wesby (2018) 138 S.Ct. 577, 585-586.) Arrests must
be supported by either a valid arrest warrant or probable cause.
(People v. Celis (2004) 33 Cal.4th 667, 673.) “Probable cause
exists when the facts known to the arresting officer would
persuade someone of ‘reasonable caution’ that the person to be
arrested has committed a crime.” (Ibid.) The arresting officer’s
subjective state of mind is not relevant to the existence of
probable cause. (Devenpeck v. Alford (2004) 543 U.S. 146, 153;
see also Whren, supra, 517 U.S. at pp. 812-813.) Moreover, the
crime supported by probable cause need not be the crime for
which the person was arrested. “The fact an officer may place a
person under arrest for the wrong offense does not invalidate the
arrest and require exclusion of evidence seized incident to the
arrest, if the officer nevertheless had probable cause to arrest the
person for another offense.” (In re Donald L. (1978) 81
Cal.App.3d 770, 775.) “[T]here is no requirement that the offense
17
upon which the police make an arrest be ‘related’ to the offense
for which probable cause to arrest is found to exist.” (People v.
Rodriguez (1997) 53 Cal.App.4th 1250, 1254 (Rodriguez).)
There also is no requirement that the arresting officer
personally have specific knowledge of the nature and extent of
the probable cause. (People v. Ramirez (1997) 59 Cal.App.4th
1548, 1555.) “It is well settled in California officers can make
arrests based on information and probable cause furnished by
other officers.” (Id. at p. 1553.) “[W]hen police officers work
together to build ‘collective knowledge’ of probable cause, the
important question is not what each officer knew about probable
cause, but how valid and reasonable the probable cause was that
developed in the officers’ collective knowledge.” (Id. at p. 1555.)
Here, the deputy who arrested appellant told appellant he
was being arrested for the 2015 murder. The facts as found by
the trial court—which the parties essentially stipulated were
supported by substantial evidence—support a finding of probable
cause to arrest appellant for that crime. The Hawthorne Police
Department and the Sheriff’s Department collectively knew at
the time that Williams and Beacham had seen and described a
perpetrator matching appellant’s description, including the neck
tattoo described by Beacham. The car appellant was driving
matched witness descriptions and surveillance video of the car
seen at the crime scene. The cell phone turned into law
enforcement depicted numerous photographs of appellant, and
one of the photographs on the phone was the same as the
photograph sent to Williams and identified by her as the shooter.
These facts would persuade someone of reasonable caution that
appellant committed the Yarbrough shooting.
18
We reject appellant’s argument that the arrest was invalid
because officers could have gotten a “proper warrant.” Probable
cause, not the ability to obtain a warrant, is the relevant
touchstone here. “When the arresting officer has probable cause
to arrest for a felony, and the arrest is not made inside a
residence, the arrest is valid even though made under an invalid
arrest warrant.” (People v. Wright (1990) 52 Cal.3d 367, 392,
disapproved on another ground by People v. Williams (2010) 49
Cal.4th 405, 459.) We also reject appellant’s assertion that the
court erred because it erroneously applied the “independent
source doctrine,” which “allows admission of evidence that has
been discovered by means wholly independent of any
constitutional violation.” (Nix v. Williams (1984) 467 U.S. 431,
443.) We review the trial court’s ruling, not its rationale. (People
v. Letner and Tobin, supra, 50 Cal.4th at p. 145.)
Appellant further contends that “the subjective belief of the
officer for making the arrest is relevant,” and it is an
“overstatement to say that what is in the mind of an arresting
officer is wholly irrelevant.” Yet Whren explicitly states that
“[s]ubjective intentions play no role in ordinary, probable-cause
Fourth Amendment analysis.” (Whren, supra, 517 U.S. at p.
813.) Appellant urges us to instead apply the “apt precedent” of
Agar v. Superior Court (1971) 21 Cal.App.3d 24, which he
accurately asserts “held that it must first be established that the
police officer believes the crime has been committed before the
issue of probable cause. . . arises.” Agar’s continuing validity
after Whren has been called into question. (Rodriguez, supra, 53
Cal.App.4th at pp. 1265-1266.) But even assuming Agar remains
valid, it is inapplicable here: the deputy who arrested appellant
told appellant he was being arrested for the 2015 murder,
19
thereby demonstrating his own belief that the 2015 murder had
been committed.
Relying on a different People v. Rodriguez (2006) 143
Cal.App.4th 1137, appellant also argues that the “flagrant ruse of
the illegal warrant mandates reversal.” In People v. Rodriguez,
evidence adduced at the defendant’s motion to suppress hearing
suggested that the police officers who stopped his car may have
fabricated the reason for the stop. (People v. Rodriguez, supra,
143 Cal.App.4th at p. 1141.) Because the officers searched the
defendant’s car pursuant to an outstanding arrest warrant, the
trial court denied the motion to suppress without making any
factual findings about the reason for the stop or the officers’
credibility. (Id. at p. 1142.) The court of appeal reversed and
remanded with directions for the trial court to determine whether
the asserted reason for the stop, a broken brake light, was
credible. It further directed that “if the trial court finds the
officers’ justification for stopping defendant’s car was a ruse it
must suppress the evidence of the drugs obtained in the
subsequent search.” (Id. at pp. 1148-1149.) The court
emphasized that there was “credible evidence the officers may
have invented a justification for the traffic stop in order to have
an excuse to run warrant checks on the driver and passenger,”
and more troublingly and flagrantly, may have perjured
themselves in court by testifying otherwise. (Id. at pp. 1143-
1144.)
Appellant asserts that People v. Rodriguez controls here,
because “the police were found to have lied.” Appellant provides
no record citation for this finding, which does not appear in the
appellate record. The appellate record states only that the trial
court “granted the motion to quash the search [sic] warrant” and
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found “there is no good faith.” Even if the police did lie in
connection with their efforts to obtain the arrest warrant for the
2009 murder, there is no indication that they lied, fabricated
evidence, or used any ruses in connection with the 2015 murder.
To the contrary, Detective Hernandez testified he shifted the
focus of the Perkins operation from the 2009 murder to the 2015
murder after the arresting officer told appellant he had been
arrested for the 2015 murder. As discussed above, the trial court
properly found that probable cause supported the arrest for the
2015 murder, notwithstanding any deficiencies in the arrest
warrant. People v. Rodriguez accordingly is distinguishable.
II. Agents’ Identities and In Camera Hearing
A. Background
Appellant filed a motion requesting disclosure of the
Perkins agents’ identities pursuant to section 1054.1 and Brady v.
Maryland (1963) 373 U.S. 83, both of which require the
prosecution to disclose exculpatory information to the defense. At
a pretrial hearing, the trial court concluded that appellant had
made a prima facie showing that disclosure was warranted, and
said it would conduct an in camera hearing with law
enforcement. The court overruled appellant’s objections that
neither his counsel nor the agents would be present at the
hearing. The court permitted appellant’s counsel to prepare
written questions for the court to ask during the hearing; counsel
submitted 79 questions.
After reviewing the Perkins recordings and transcripts, the
trial court concluded that most of appellant’s proposed questions
were not relevant to exonerating appellant or showing that the
agents were material witnesses. The court nevertheless gave
appellant’s counsel an opportunity to highlight the issues and
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discuss her questions in camera. The trial court then held the in
camera hearing with Detective Hernandez, after which it found:
“The People have rebutted the prima facie showing made by the
defense that the informants were material witnesses. In
particular, the court notes that the informants did not participate
in the alleged crime, were not percipient witnesses to the alleged
crime, and they do not otherwise have evidence that would aid
the defense. [¶] In other words, disclosure is not essential to a
fair trial. [¶] Accordingly, the court will sustain the privilege
asserted by law enforcement regarding the identity of the
informants utilized in the Perkins operation.”
Appellant’s counsel renewed her request for disclosure of
the agents’ identities during trial, asserting it was “more
material than they were before.” The trial court again denied the
request.
B. Analysis
Appellant contends the trial court erred by holding an in
camera hearing without the agents present. He further suggests
the hearing should not have been conducted in camera, because
the agents “had direct contact” with him during the Perkins
operation and thus were not “confidential.” Appellant requests
that we review the transcript of the in camera hearing to
determine if the trial court erred in denying disclosure.
Respondent agrees that we may review the transcript; it offers no
further argument on the issue.
Section 1054.18 requires the prosecution to disclose to the
defense certain categories of evidence in its possession, including
8Although the court’s ruling suggests it considered the
matter under Evidence Code sections 1040 through 1042, which
address a public entity’s privilege to refuse disclosure of
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“[t]he names and addresses of persons the prosecutor intends to
call as a witness at trial,” “[s]tatements of all defendants,” “[t]he
existence of a felony conviction of any material witness whose
credibility is likely to be critical to the outcome of the trial,” and
“[a]ny exculpatory evidence.” (§ 1054.1, subds. (a), (b), (d), (e).)
“That discovery obligation is qualified, however, by section
1054.7, which authorizes a trial court to deny, restrict or defer
such disclosure on a showing of good cause.” (People v. Thompson
(2016) 1 Cal.5th 1043, 1105.) “‘Good cause’ is limited to threats
or possible danger to the safety of a victim or witness, possible
loss or destruction of evidence, or possible compromise of other
investigations by law enforcement. [¶] Upon the request of any
party, the court may permit a showing of good cause for the
denial or regulation of disclosures, or any portion of that showing,
to be made in camera. A verbatim record shall be made of any
such proceeding.” (§ 1054.7.) If the court grants the relief
requested by the prosecution, “the entire record of the showing
shall be sealed.” (Ibid.)
“‘We generally review a trial court’s ruling on matters
regarding discovery under an abuse of discretion standard.’
[Citations.] The proper exercise of a trial court’s discretion under
section 1054.7 does not violate a criminal defendant’s
confrontation or due process rights.” (People v. Thompson, supra,
1 Cal.5th at p. 1105.)
We have reviewed the transcript of the Perkins operation
and the sealed transcript of the in camera hearing contained in
informants’ identities, appellant does not cite these provisions.
He instead frames the issue exclusively as one of discovery under
section 1054.1; he makes no contention that the court erred in
any application of the Evidence Code.
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the appellate record. The trial court properly exercised its
discretion here.
Appellant cites People v. Ruiz (1992) 9 Cal.App.4th 1485(Ruiz) in support of his assertion that the agents’ presence at the
hearing was “essential,” but that case is inapposite. In Ruiz, the
defendant sought disclosure of the identity of a confidential
informant who witnessed the drug transaction at issue in the
case. (Ruiz, supra, 9 Cal.App.4th at p. 1487.) While
acknowledging that “there is no general requirement that an
informant must be present or testify at an in camera hearing on a
motion to disclose the informant’s identity,” the court concluded
the informant’s testimony “was essential in this case because
defendant had established the CI was an eyewitness to the
alleged drug transaction.” (Id. at p. 1489.) The agents here were
not percipient witnesses to the shooting incident. They also were
not confidential informants of the sort discussed in Ruiz; the
record indicates that law enforcement provided them with
information relevant to the case, not the other way around.
Appellant’s reliance on Crane v. Kentucky (1986) 476 U.S.
683 and People v. Lanfrey (1988) 204 Cal.App.3d 491 is similarly
misplaced. Appellant did not confess to the crimes during the
Perkins operation, and nothing in the lengthy audio recordings
and transcript suggested a reasonable possibility that the agents
could give evidence on the issue of guilt that might result in
appellant’s exoneration.
III. CALCRIM No. 315
A. Background
The identity of Yarbrough’s shooter was a key issue at trial.
Both Williams, who was unable to identify appellant in a photo
array, and Beacham, who selected appellant’s photo with “90
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percent” certainty, testified that they had “no doubt” appellant
was the shooter. Appellant, who presented a defense of mistaken
identity, introduced evidence that barbecue attendee Nelson was
unable to identify him and expert testimony that witnesses who
claim to be certain of a perpetrator’s identity may nevertheless be
incorrect.
The trial court instructed the jury with CALCRIM No. 315,
“Eyewitness Identification,” which provided the jury with 15
questions to consider when evaluating eyewitness testimony
identifying appellant as the perpetrator, including “How certain
was the witness when he or she made an identification?” The
instruction also stated, “The People have the burden of proving
beyond a reasonable doubt that it was the defendant who
committed the crime. If the People have not met this burden, you
must find the defendant not guilty.” Appellant did not object to
or request modification of the instruction.
B. Analysis
Appellant now contends CALCRIM No. 315 violated his due
process rights. He argues that recent scientific research has
shown that a witness’s level of certainty is not predictive of the
witness’s accuracy, and instructing the jury to consider the
witnesses’ levels of certainty “gave the State an unfair advantage
and thus made Appellant’s trial fundamentally unfair.”
Respondent contends this argument is forfeited due to appellant’s
failure to object, and was rejected on the merits in Lemcke, supra,
11 Cal.5th 644. Appellant, who requests that we excuse his
forfeiture, replies that Lemcke is distinguishable.
“A claim of instructional error is reviewed de novo.
[Citation.] An appellate court reviews the wording of a jury
instruction de novo and assesses whether the instruction
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accurately states the law. [Citation.] In reviewing a claim of
instructional error, the court must consider whether there is a
reasonable likelihood that the trial court’s instructions caused
the jury to misapply the law in violation of the Constitution.
[Citations.] 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 an impermissible manner.’ [Citation.]” (People v.
Mitchell (2019) 7 Cal.5th 561, 579.)
We agree with respondent that appellant forfeited his claim
of instructional error by failing to object below. (People v.
Sánchez (2016) 63 Cal.4th 411, 461-462; People v. Rodriguez
(2019) 40 Cal.App.5th 194, 199-200.) We further agree that the
claim is foreclosed by Lemcke.
In Lemcke, supra, 11 Cal.5th 644, the Supreme Court
rejected the precise argument appellant raises here. It held that
“nothing in CALCRIM No. 315’s instruction on witness certainty .
. . operates to ‘lower the prosecution’s burden of proof.’” (Lemcke,
supra, 11 Cal.5th at p. 657.) It further concluded that “the
instruction does not direct the jury that ‘certainty equals
accuracy,’” or direct the jury to presume an identification is
accurate if a witness is certain about it. (Ibid.) “Instead, the
instruction merely lists the witness’s level of certainty at the time
of identification as one of 15 different factors that the jury should
consider when evaluating the credibility and accuracy of
eyewitness testimony. The instruction leaves the jury to decide
whether the witness expressed a credible claim of certainty and
what weight, if any, should be placed on that certainty in relation
to the numerous other factors listed in CALCRIM No. 315.”
(Ibid.)
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The Lemcke court also found that any correlation between
certainty and accuracy suggested by the instruction was
ameliorated by the defendant’s presentation of expert testimony
refuting that inference. (Lemcke, supra, 11 Cal.5th at pp. 657-
658.) Appellant presented similar testimony by the very same
expert. (See id. at pp. 650-652 [summarizing Dr. Eisen’s
testimony], 658.) The court also instructed the jury with the
same “[a]dditional instructions” that the Supreme Court
concluded “undercut [the] contention that the certainty language
lowered the prosecution’s burden of proof” (ibid.): those directing
the jury “that it was required to consider the testimony of the
expert witness, that the prosecution retained the burden to prove
[appellant’s] identity . . . beyond a reasonable doubt, and that
witnesses sometimes make honest mistakes.” (Id. at p. 647.)
CALCRIM instructions on all those topics were given in this case.
(See CALCRIM Nos. 220 [Reasonable Doubt], 226 [Witnesses],
315 [Eyewitness Identification], 332 [Expert Witness
Testimony].) Appellant’s assertion that Lemcke is
distinguishable on unspecified grounds is not persuasive.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
WILLHITE, ACTING P.J. CURREY, J.
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