People v. Weir CA2/2

Filed 12/21/22 P. v. Weir CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B311555
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA098599)
v.
RANDALL WEIR,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Richard M. Goul, Judge. Affirmed.
Cliff Gardner, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
Randall Weir (defendant), whose first two trials ended in
hung juries, appeals from the judgment entered following his
conviction by a third jury of three counts of first degree murder
(Pen. Code, § 187, subd. (a)). As to all three counts, the jury
found that a principal was armed with a firearm (§ 12022, subd.
(a)(1)) and defendant personally and intentionally discharged a
firearm causing great bodily injury and death (§ 12022.53, subds.
(b)-(d)). The jury also found the multiple-murder special-
circumstance allegation (§ 190.2, subd. (a)(3)) to be true.
Defendant was sentenced to three terms of life without the
possibility of parole, plus 75 years to life.
The trial court also imposed a $300 restitution fine, a $30
criminal conviction assessment pursuant to Government Code
section 70373, and a $40 court security assessment pursuant to
Penal Code section 1465.8, subdivision (c). The minute order and
abstract of judgment reflect the imposition of only one
Government Code section 70373 assessment and only one Penal
Code section 1465.8 assessment.
We direct the trial court to amend the judgment to reflect
the imposition of a total of three Government Code section 70373,
subdivision (a) assessments and three Penal Code section 1465.8,
subdivision (a) assessments. We otherwise affirm the judgment.
BACKGROUND
Two groups had a violent dispute over a large quantity of
marijuana that went missing. One group consisted of defendant,
his codefendant Howard Williams,1 and Howard’s cousin, Tevin
1 Defendant Weir and his codefendant Howard Williams
were tried together. Because Howard Williams has the same
2
Lampart. The other group consisted of Narada Brooks, Laurent
Latty, Dwayne Cover, Courtney Murray, and Cleon Sterling.
Cover and Murray died inside their apartment from gunshot
wounds. Latty, who was also shot, died in the apartment
building stairwell.
At the trial, the prosecutor argued that defendant and
Howard committed the murders and that defendant was the
shooter. Defense counsel argued that Brooks was the killer and
that defendant had fired only in self-defense.
Evidence at trial2
Brooks’s testimony
Brooks testified that he, Latty, Cover, Murray, and Sterling
were close friends who purchased and sold large quantities of
marijuana together for profit. All five men were at Murray and
Cover’s apartment, along with Monique Apodaca, a friend of
Latty’s, on the evening of May 9, 2013.
Earlier that same day, Howard called Brooks and asked
him to obtain 50 pounds of marijuana. Howard and Brooks had
known each other for several years and had conducted several
marijuana transactions together in the past. After Brooks
obtained the marijuana, he told Howard to meet him at Murray
and Cover’s apartment.
Howard arrived approximately one hour after the
marijuana was delivered to the apartment. Brooks and others in
the apartment bagged and boxed the marijuana, some of which
surname as Damion Williams, a witness who testified at the trial,
we refer to each of them by their first names to avoid confusion.
2 Some of the evidence is summarized later in this opinion in
our discussion of the merits of defendant’s contentions on appeal.
3
was set aside for Howard. Howard then left the apartment,
leaving behind his portion of the marijuana. All of the marijuana
was placed in a bedroom before Brooks and the others left the
apartment to go clubbing. Defendant, Howard, and Lampart
were at one of the two clubs Brooks and his group visited that
night.
Early the following morning, Murray, Latty, Sterling, and
Apodaca returned to the apartment while Brooks and Cover
remained at the club. Approximately 20 minutes later, Murray
called Cover and Brooks and informed them that the marijuana
was missing. Brooks and Cover returned to the apartment, and
Brooks telephoned Howard to notify him that the marijuana was
gone.
Murray, Latty, Sterling, and Apodaca were at the
apartment when Brooks and Cover arrived. The marijuana was
gone and there were no signs of a forced entry.
Defendant, Howard, and Lampart arrived at the apartment
approximately 40 minutes later. Howard and defendant were
both angry and upset and started blaming Brooks and his group
for the missing marijuana. Tensions escalated, Howard said,
“this is where the friendship ends,” and left the apartment.
Brooks then saw defendant remove a small, black, semiautomatic
handgun from his waistband, point it at Murray’s head, and
shoot. Murray was approximately four feet away from defendant
at the time. Brooks fled the apartment and down the building
stairwell. He was aware of someone running close behind him
but did not see the person. Brooks removed a nine-millimeter
handgun from his waistband and fired at least two rounds at his
pursuer.
4
Brooks ran to a neighbor’s yard and hid his gun inside a
brick wall. He remained hidden in the yard until he saw
defendant and Howard drive away in a gray Ford Explorer.
Brooks then returned to the apartment to retrieve his car
keys and a bag containing his belongings. He saw Latty, who
appeared to be dead, lying on the floor in the stairwell. Brooks
retrieved his belongings from the apartment and then left the
scene in his car.
Brooks was arrested later that day. While in custody, he
was placed in a jail cell with an informant named Smith, who
was wearing a recording device. The device malfunctioned, and
the investigating detective asked Smith to memorialize his
conversation with Brooks immediately thereafter in a
handwritten note.
Sterling’s testimony
Sterling was at Murray and Cover’s apartment on May 9,
2013, when a marijuana delivery arrived late in the evening.
Murray, Cover, Latty, Brooks, Apodaca, and Howard were also
present. After Brooks, Murray, and Howard packaged the
marijuana, Howard left the apartment. Everyone else in the
apartment then left together to go to a club. Sterling saw Murray
lock the apartment door as they left. Sterling, Brooks, Murray,
and Cover drove to the club in one vehicle, and Latty and
Apodaca drove there in a separate vehicle.
At 4:00 or 5:00 the next morning, Sterling, Murray, Latty,
and Apodaca returned to the apartment. When they reached the
apartment door, Murray said, “Fuck. The door is wide open.”
They entered the apartment and discovered the marijuana was
gone. Murray called Cover and Brooks to let them know. After
5
Cover and Brooks arrived at the apartment, Brooks telephoned
Howard.
Howard, defendant, and Lampart arrived at the apartment
not long thereafter. Howard was upset. He said the friendship
was over and then stepped outside the apartment with defendant
for about five minutes. When they returned, defendant
whispered something in Howard’s ear. Sterling then saw
defendant raise his hand to his right, pointing toward Murray.
Sterling heard a gunshot and then heard Cover say, “What the
fuck.” Sterling heard more gunshots as he dropped to the floor
and crawled under a table to the apartment balcony. He could
hear more gunshots as he crouched on the balcony. From the
balcony, Sterling could see Howard walking down the hallway of
the apartment building. Sterling could also see Brooks running
across the street. When Sterling heard a car pull up, he jumped
off the balcony and ran away from the apartment.
Apodaca’s testimony
Apodaca testified that she and Latty were at an apartment
on May 9, 2013, with six or seven other men she did not know.
Latty introduced one of the men to Apodaca as Brooks.3 The men
were wrapping marijuana when she and Latty left the apartment
to go the mall. When Apodaca and Latty returned, the marijuana
was gone, and Apodaca did not see the marijuana again
thereafter.
Apodaca, Latty, and the others in the apartment left at
some point to go clubbing. Apodaca, Latty, and two of the men
3 Latty introduced Brooks as “Que.” Throughout the trial,
witnesses referred to defendant, Howard, the victims, and other
present at the crime scene by their monikers rather than their
given names.
6
later returned to the apartment and found the door ajar.
Someone called Brooks, who returned to the apartment 20 or 30
minutes later. While Brooks made a phone call, Apodaca saw a
silver and black handgun tucked into Brooks’s waistband.
Apodaca went into a bedroom where she remained until the
police arrived. Through the open bedroom door, Apodaca saw
defendant and Howard arrive. She recognized them as having
been at the club earlier that night. Someone said “somebody here
is a thief” and “the friendship is done.” Apodaca then heard
gunshots and dropped to the floor. She saw someone in black
pants run past the bedroom door, and then she saw Brooks with
his arms straight out in front of him walk past. Apodaca hid in
the closet when she heard more gunshots near the apartment
door. Later, she heard someone come up the stairwell and enter
the bedroom where she was hiding. She could not see that
person, who retrieved a carry-on sized bag and then exited
through the building stairwell.
Other evidence
Video recorded on surveillance cameras showed Sterling
crouching on the balcony of the apartment and subsequently
jumping off the balcony. Surveillance video also showed Brooks
running down the sidewalk away from the apartment building,
and a silver Ford Explorer driving away from the apartment
building after Sterling and Brooks had fled. Documents from a
rental car company showed that a silver Ford Explorer was
rented to Howard at the time of the crimes.
Police investigators recovered two types of expended nine-
millimeter bullet casings from the crime scene. A total of nine
Federal Cartridge brand casings were recovered, three inside the
apartment near Murray’s and Cover’s bodies; two in the hallway
7
leading to the apartment entrance; and three in the stairwell.
Three Winchester brand casings were also recovered, one in the
driveway, and two in the stairwell. No Winchester casings were
recovered from inside the apartment. Police investigators also
recovered from the apartment a nine-millimeter semiautomatic
pistol and an associated magazine. That gun had not been fired,
and none of the bullet casings or bullet fragments found at the
crime scene had come from that gun. Investigators determined
that only one gun was fired inside the apartment, and that two
different guns were fired in the stairwell and on the driveway.
In October 2013, police recovered a Smith and Wesson
nine-millimeter handgun with its serial number partially
scratched off (the Harbor gun) from a stolen vehicle in the Harbor
area. The gun was silver with a black frame.
A ballistics expert testified at the trial that the three
Winchester casings and four bullet fragments recovered from the
apartment driveway and stairwell at the crime scene were fired
from the Harbor gun. The nine Federal Cartridge casings were
fired from a single, different gun, which was never recovered.
Eleven bullet fragments, including fragments recovered from the
bodies of Latty and Cover, were also fired from a single gun that
was never recovered. None of the 11 bullet fragments or Federal
Cartridge casings were fired from the Harbor gun.
CONTENTIONS ON APPEAL
Defendant contends his conviction must be reversed for the
following reasons:
I. Trial counsel was ineffective by failing to request a
limiting instruction as to the testimony of witness Damion
regarding pretrial admissions made by Howard.
8
II. The trial court improperly excluded evidence that
Brooks had been involved in a shooting 30 days before the crimes.
III. The trial court improperly allowed an investigating
detective to testify about informant Smith’s handwritten
summary of a jailhouse conversation with Brooks.
IV. The trial court erred by instructing the jury with
CALCRIM No. 359 because the instruction improperly allowed
the jury to conclude that defendant was the shooter based solely
on his pretrial statements.
V. The cumulative errors require reversal.
DISCUSSION
I. Ineffective assistance of counsel
Defendant contends his counsel’s failure to request a
limiting instruction as to the testimony of Damion deprived him
of his Sixth Amendment right to effective assistance of counsel.
A. Proceedings below
1. First and second trials
Damion did not testify at defendant’s first trial in 2017. At
the second trial in 2018, the prosecutor said she intended to call
Damion to testify about admissions Howard had made to him.
During an Evidence Code section 401 hearing, defendant’s
counsel asked the prosecutor to explain the scope of Damion’s
testimony and pointed out that the testimony might not be
relevant or admissible as to defendant. In response to the trial
court’s request for an offer of proof, the prosecutor stated that
Damion and Howard had a phone conversation in which Howard
admitted being present at the crime scene and that his cousin
Lampart had been shot in the foot. Damion and Howard later
met in Florida where Howard said he had given the victims
9
marijuana to hold, the marijuana disappeared, and a shoot-out
ensued. Howard admitted that he shot first.
When the trial court asked if the testimony would be
limited to Howard, the prosecutor responded, “Correct.”
Defendant’s counsel asked for a limiting instruction consistent
with the prosecutor’s offer of proof, and the trial court agreed to
do so. Before Damion testified, the trial court instructed the jury
that the testimony was limited to Howard, “not to Mr. Weir at
all.”
Damion testified at the second trial that he met with
Howard at a park in Florida, where Howard told him he had
given the victims a hundred pounds of marijuana. The
marijuana was gone when Howard went to their apartment to
retrieve it. A heated argument ensued, and shots were fired.
Howard told Damion he started firing first, and the victims fired
back. Howard said he went to the apartment with two other
men, one of whom was Lampart, who was shot.
2. Third trial
At the third trial, the subject of this appeal, the prosecutor
asked the trial court to issue a material witness warrant for
Damion to ensure his presence to testify at trial about an
admission of guilt made by Howard. Defendant’s trial counsel
did not ask for a limiting instruction at that time, nor did he do
so at any time before, during, or after Damion’s testimony.
Damion testified at the third trial that Howard told him
that “[h]im [(Howard)] and the other person” started firing shots
at the people who stole the marijuana. “His [(Howard’s)] side
[shot] first,” and “three people got shot.” The people who were
shot lived in the apartment.
10
During cross-examination, defendant’s counsel elicited
Damion’s testimony that Howard identified only himself and
Lampart as being present at the crime scene. Counsel asked
Damion if Howard “told you that he went there with himself and
[Lampart].”4 Damion answered, “Well, he didn’t’ tell me how he
got there or who he went there with, just tell me who was there,
but another person was there too.” Counsel then asked, “So the
only names he gave you were himself and [Lampart]; correct?”
Damion responded, “Yeah.”
B. Applicable law and standard of review
The Sixth Amendment right to assistance of counsel
includes the right to the effective assistance of counsel.
(Strickland v. Washington (1984) 466 U.S. 668, 686-694
(Strickland).) It is the defendant’s burden on appeal to
demonstrate that trial counsel was inadequate and that prejudice
resulted. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
“‘[I]t is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable. [Citation.] A fair
assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the
time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
4 Damion referred to Lampart as “Shaka.”
11
“might be considered sound trial strategy.”’” (People v. Ochoa
(1998) 19 Cal.4th 353, 445-446.)
“If the record on appeal sheds no light on why counsel acted
or failed to act in the manner challenged, an appellate claim of
ineffective assistance of counsel must be rejected unless counsel
was asked for an explanation and failed to provide one, or there
simply could be no satisfactory explanation.” (People v. Carter
(2003) 30 Cal.4th 1166, 1211.)
C. No ineffective assistance
Defendant fails to meet his burden of demonstrating that
his trial counsel’s failure to request a limiting instruction
deprived defendant of his Sixth Amendment right to counsel.
Defendant’s counsel was not asked to explain why he did not
request a limiting instruction concerning Damion’s testimony,
and the record does not support defendant’s claim that counsel
had no rational tactical purpose for not requesting such an
instruction.
Defendant’s counsel could have concluded that a limiting
instruction was unnecessary because Damion’s testimony did not
implicate defendant. Damion testified that Howard said “[h]im
[(Howard)] and the other person” started shooting, and that
Howard’s “side” shot first. Damion did not testify that Howard
identified defendant as “the other person.” During Damion’s
cross-examination, defendant’s counsel clarified that the only
people Howard identified by name on his “side” at the crime
scene were Howard himself and Lampart.
Contrary to defendant’s assertion, Damion’s testimony does
not clearly implicate defendant as the “other person” who started
shooting. Damion testified on cross-examination that the only
two people Howard identified by name were Howard himself and
12
Lampart. Counsel could reasonably have concluded that a
limiting instruction was unnecessary because Howard did not
identify defendant as the shooter or even having been present at
the crime scene.
D. No prejudice
Defendant also fails to establish that his counsel’s allegedly
deficient performance resulted in prejudice. Prejudice is shown
by “‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’” (Strickland, supra, 466 U.S. at p. 694.) Here,
there was overwhelming evidence that defendant was the
shooter. Two eyewitnesses, Brooks and Sterling, testified that
they saw defendant point a gun at Murray and shoot. Both
Brooks and Sterling fled the apartment and heard multiple
gunshots as they were fleeing.
Although defendant sought to convince the jury that Brooks
committed the murders, the physical evidence contradicted this
theory. The evidence showed that none of the shots fired inside
the apartment came from Brooks. Ballistics evidence confirmed
that the “Harbor gun” linked to Brooks was fired only in the
apartment building stairwell and on the driveway. It was not
discharged inside the apartment. That evidence supported
Brooks’s testimony that he did not shoot until he was outside the
apartment and running away from someone pursuing him.
Bullet casings and bullet fragments recovered inside the
apartment and from the bodies of Latty and Cover were not fired
from the Harbor gun but from a second nine-millimeter gun that
was never recovered.
That defendant’s first two trials ended in hung juries and
the third in his conviction does not persuade us that his counsel’s
13
failure to request a limiting instruction as to Damion’s testimony
during the third trial was the cause of his conviction. We decline
to speculate as to why the first two juries were unable to reach a
verdict.
Defendant fails to establish that his counsel’s failure to
request a limiting instruction deprived him of his Sixth
Amendment right to counsel or that he was prejudiced by his
counsel’s allegedly deficient performance.
II. Exclusion of prior shooting incident
The trial court’s preclusion of evidence that Brooks fired a
gun 30 days before the subject crimes was not an abuse of
discretion and did not violate defendant’s constitutional rights to
due process or to present a defense.
A. Proceedings below
At a pretrial proceeding, defense counsel sought to present
evidence that Brooks had fired a gun in a parking lot
approximately 30 days before the subject crimes. The defense
theory was that Brooks had started the shooting in the
apartment and that he killed Murray, Cover, and Latty. Defense
counsel argued that evidence of Brooks’s prior aggressive conduct
was admissible to prove that Brooks shot first and that defendant
fired only in self-defense.
The prosecutor responded that Brooks had been arrested
for the prior shooting incident but was released with no charges
filed against him. The prosecutor argued that the prior incident
had nothing to do with the case and would result in “a trial
within a trial” to determine whether Brooks had been the
aggressor during the prior incident. The prosecutor further
argued there was no evidence that defendant or Howard knew
14
about the prior shooting incident. The trial court deferred ruling
on the issue until after Brooks’s direct testimony.
After the prosecution completed its direct examination of
Brooks, defense counsel renewed their request to present
evidence of Brooks’s prior shooting incident. Defense counsel
argued the prior shooting incident was admissible to show that
Brooks had been the aggressor during the subject crimes and to
refute Damion’s testimony that Howard had admitted his side
fired the first shots.
The prosecutor argued the prior incident would be
admissible for self-defense purposes only if Howard and
defendant knew about the incident at the time of the crimes. The
prosecutor further argued there was no indication that Brooks
had been the initial aggressor in the prior incident. The
prosecutor explained that according to a witness’s statement in a
police report about the incident, Brooks and another customer
had argued inside a club. When Brooks and his companion
walked outside, the customer approached and fought with them.
The customer then ran to get his friends, and the group
approached Brooks. Brooks reached into his car, retrieved a blue
steel semiautomatic gun, pointed it at the group, and then fired
two rounds into the air. Everyone then left. The prosecutor
argued there was also no evidence that Brooks had used the same
gun in the prior incident and at the crime scene.
Defendant’s counsel argued that Brooks’s possession of
another firearm during the prior incident was relevant because
the murder weapon in this case had never been recovered. The
trial court denied the request to present evidence of the prior
incident, reasoning as follows:
“The proper evidence does not show that Mr. Brooks
was the aggressor in that prior incident. Case law is
15
clear. Prosecutor can’t introduce evidence of a
defendant having firearms on some other occasion
unless there’s proof that the prior possession of
firearms are the firearms involved in the prosecution
that the D.A. wishes to use the evidence for. So just
turn that around and what’s good for the prosecutor
is good for the defense as well.”
The trial court further ruled that the probative value of the
evidence concerning the prior incident was substantially
outweighed by its potential prejudice and consumption of time.
B. Applicable law and standard of review
Only relevant evidence is admissible. (Evid. Code, § 350.)
Relevant evidence is evidence “having any tendency in reason to
prove or disprove any disputed fact that is of consequence to the
determination of the action.” (Evid. Code, § 210.) Evidence is
relevant if it “tends ‘logically, naturally, and by reasonable
inference’ to establish material facts such as identity, intent, or
motive.” (People v. Garceau (1993) 6 Cal.4th 140, 177,
disapproved on another ground in People v. Yeoman (2003) 31
Cal.4th 93, 117.) When a defendant asserts a claim of self-
defense, evidence of a victim’s violent character is admissible
under Evidence Code section 1103 to show the victim was the
aggressor at the time of a killing. (People v. Minifie (1996) 13
Cal.4th 1055, 1070.)
A trial court “in its discretion may exclude evidence if its
probative value is substantially outweighed by the probability
that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing
the issues, or of misleading the jury.” (Evid. Code, § 352.)
Evidence Code section 780 makes admissible any evidence
relevant to prove that a witness is credible unless the evidence is
16
made inadmissible under some other statute or is precluded by a
trial court ruling under Evidence Code section 352.
A trial court has broad discretion to exclude impeachment
evidence on collateral matters, particularly when such evidence
may create undue prejudice or confusion. (People v. Lavergne
(1971) 4 Cal.3d 735, 741-744.) A trial court’s ruling on the
admissibility of evidence is reviewed for abuse of discretion.
(People v. Cox (2003) 30 Cal.4th 916, 955, disapproved on another
ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
C. No abuse of discretion and no constitutional
violation
The record discloses no abuse of discretion. Brooks’s
possession of another firearm, and his involvement in a separate,
prior shooting that resulted in no injuries and in which there was
no evidence he had initiated the conflict, was a collateral matter
that had minimal bearing, if any, on the case. (See People v.
Gurule (2002) 28 Cal.4th 557, 619.)
As to defendant’s constitutional claims, our Supreme Court
has held that “not every restriction on a defendant’s desired
method of cross-examination is a constitutional violation. Within
the confines of the confrontation clause, the trial court retains
wide latitude in restricting cross-examination that is repetitive,
prejudicial, confusing of the issues, or of marginal relevance.”
(People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on
another ground by People v. Doolin, supra, 45 Cal.4th at p. 421,
fn. 22.)
III. Admission of Detective Romero’s testimony
The trial court’s admission of investigating Detective Luis
Romero’s testimony about informant Smith’s handwritten notes
17
on Smith’s jail conversation with Brooks did not violate
defendant’s due process right to a fair trial.
A. Proceedings below
Brooks was arrested on the day of the murders. While in
custody, he was placed in a cell with an informant named Smith,
who was wearing a hidden recording device. Because the device
malfunctioned, an investigating detective had Smith memorialize
his conversation with Brooks immediately after the operation.
Smith’s handwritten note was admitted into evidence.
Smith’s note states in pertinent part that Brooks said he
was in jail for a triple murder, that the shooting had occurred
because “they tried to play him out his dope” and “he had to
handle his business.” The note further states, “murder weapon
was 9 . . . mill;” and “says he got rid of murder weapon.”
Smith testified at trial that he knew he was participating
in a murder investigation, and he assumed Brooks was the
suspected killer. Smith explained that his handwritten notes
were not verbatim quotes of what Brooks had told him but were
his interpretation of Brooks’s statements. Smith testified that
Brooks did not actually say “they tried to play him out his dope,”
but instead “that it was something like a distribution of drugs.”
As to his notes concerning the murder weapon, Smith testified
that Brooks did not admit to murdering anyone but said he had
possessed a firearm, and Smith assumed Brooks was referring to
the murder weapon.
During his testimony at trial, Brooks denied telling Smith
that he had killed three people or that the shooting occurred
because “they tried to play him out his dope.” Brooks also denied
saying that he had to “handle his business.”
18
Detective Romero testified that during his investigation of
the murders in May 2013, the police could not at that time
eliminate Brooks as a suspect. After Brooks’s arrest, Romero had
him placed in the same jail cell with informant Smith, who wore
a recording device that malfunctioned. Romero testified that
when he first reviewed Smith’s notes summarizing his jail
conversation with Brooks, Romero had no reason or evidence to
question those notes. When the prosecutor asked Romero
whether his opinion regarding Smith’s notes subsequently
changed, defendant’s counsel objected that Romero was
“[v]ouching.” The trial court overruled the objection, stating, “It’s
just to describe the course of the investigation, not as to the truth
of what the detective believes the culpability of different people
are. Not for that.”
Romero then testified that his opinion about the value of
Smith’s notes changed as the murder investigation progressed
“because I was comparing what was written to the physical
evidence.” Romero further testified that he did not question
Brooks in March 2014 about the contents of Smith’s handwritten
notes because the police at that point had identified defendant
and Howard as suspects and “had the gun analyzed.” Defense
counsel again objected that Romero was “vouching” and that his
personal beliefs were not relevant.
The trial court overruled the objection, stating, “the
opinions of the detective are being allowed by me just to describe
the course of his investigation why he did things, why he didn’t
do things. It’s not for the truth of it.” The court then addressed
the jury: “You, the jury, decide the culpability, not the detective.”
19
B. No error and no due process violation
A witness’s lay testimony about the veracity of another
witness’s statements is inadmissible because it is not relevant to
the issue of the statement’s credibility and because it invades the
province of the jury to determine the facts. (People v. Zambrano
(2004) 124 Cal.App.4th 228, 239; People v. Melton (1988) 44
Cal.3d 713, 744.) We review the admission of witness testimony
under the abuse of discretion standard. (People v. Kovacich
(2011) 201 Cal.App.4th 863, 902.)
The record does not support defendant’s assertion that
Romero’s testimony was erroneously admitted to establish the
veracity of Smith’s handwritten notes. Rather, the record shows
that the trial court admitted Romero’s testimony solely for the
purpose of describing the course of his investigation. The trial
court expressly instructed the jury that Romero’s statements
were not to be considered to assess the truth of Smith’s written
statements and that the jury alone was to determine culpability.
The trial court also instructed the jury pursuant to
CALCRIM No. 226 that “[y]ou alone must judge the credibility or
believability of the witnesses” and CALCRIM No. 200, which
states: “You must decide what the facts are. It is up to all of you,
and you alone[,] to decide what happened . . . .” We presume the
jury understood and followed those instructions. (People v. Smith
(2007) 40 Cal.4th 483, 517-518.)
Defendant has demonstrated no error and no due process
violation.
IV. CALCRIM No. 359
Defendant contends the trial court erred in instructing the
jury with CALCRIM No. 359 because the instruction erroneously
permitted the jury to conclude he was the killer based on his out-
20
of-court statements alone, thereby reducing the prosecution’s
burden of proof and undermining the presumption of defendant’s
innocence.
A. Proceedings below
1. Defendant’s pretrial statements
a. Statements to Donna Jones
Donna Jones testified that she and defendant were dating
in May 2013. On the morning of May 10, 2013, Jones picked up
defendant after he called asking her for a ride. While they were
in the car together, Jones received a phone call from a friend
asking about defendant and “Que”5 and if they were both okay.
Jones then handed the phone to defendant, and she heard
defendant say he was good. Jones then heard defendant say
“Que.” Jones asked defendant what the call was about, and he
told her it was not her business.
The prosecutor asked Jones if she remembered defendant
saying something to the effect of Que got away. When Jones said
she did not remember, the prosecutor presented Jones’s prior
testimony, which included the following exchange:
“Question: When you talked to the detectives a
couple of years ago, if you told them that
[defendant][6] said—[defendant] said quote ‘Fuck.
Que got away.’ Would that have been the truth?
“Answer: Yeah.”
5 Several witnesses referred to Brooks as “Que.”
6 Jones knew defendant as “Craig” and referred to him by
that name throughout her testimony.
21
After hearing the prosecutor read the prior testimony,
Jones admitted, “If you have it there, that’s what I told the
detective.”
b. Statements to Detective Romero
A few days after defendant was arrested for the subject
murders, he told Detective Romero that he had never been to
Murray and Cover’s apartment. Defendant said he was familiar
with Murray, Cover, and Latty and had seen them at a club the
day before the murders. Defendant said he later left the club and
returned home alone. He had no information about the murders.
2. CALCRIM No. 359
The trial court instructed the jury with CALCRIM No. 359
as follows:
“A defendant may not be convicted of any crime
based on his out-of-court statements alone. You may
rely on a defendant’s out-of-court statements to
convict him only if you first conclude that other
evidence shows that the charged crime was
committed.
“That other evidence may be slight and need
only be enough to support a reasonable inference that
a crime was committed.
“This requirement of other evidence does not
apply to proving the identity of the person who
committed the crime. If other evidence shows that
the charged crime was committed, the identity of the
person who committed it may be proved by the
defendant’s statement alone.
“You may not convict a defendant unless the
People have proved him guilt[y] beyond a reasonable
doubt.”
22
B. Forfeiture
Defendant forfeited any objection based on alleged
instructional error because his defense counsel did not object to
CALCRIM No. 359. “Failure to object to instructional error
forfeits the issue on appeal unless the error affects defendant’s
substantial rights.” (People v. Anderson (2007) 152 Cal.App.4th
919, 927.) Even absent any forfeiture, we find no instructional
error and consequently no violation of defendant’s rights.
C. No instructional error
Defendant cites People v. Rivas (2013) 214 Cal.App.4th
1410 (Rivas) as support for his argument that the trial court’s
instruction was both erroneous and contradictory because it
informed the jury that a defendant may not be convicted of any
crime based solely on his out-of-court statements, but also stated
that the identity of the person who committed the crimes could be
proved by the defendant’s statement alone. The court in Rivas
found a previous version of CALCRIM No. 3597 to be deficient
7 CALCRIM No. 359 in effect at the time of the Rivas court’s
decision stated:
“The defendant may not be convicted of any
crime based on (his/her) out-of-court statement[s]
alone. You may only rely on the defendant’s out-of-
court statements to convict (him/her) if you conclude
that other evidence shows that the charged crime [or
a lesser included offense] was committed.
“That other evidence may be slight and need
only be strong enough to support a reasonable
inference that a crime was committed.
23
because “the reference to identity in CALCRIM No. 359 presents
a risk of confounding the jury by telling jurors that a defendant’s
inculpatory extrajudicial statements, taken alone, do not suffice
to allow the jury to convict the defendant of a charged crime—
and yet those statements, again taken alone, are entertainable to
prove the defendant’s ‘identity [as] the person who committed the
crime’ (CALCRIM No. 359, 3d par.), which to any juror can only
mean the defendant’s identity as the perpetrator, i.e., the guilty
party. The instruction requires reconsideration.” (Rivas, at
p. 1429.)
The court in People v. Rosales (2014) 222 Cal.App.4th 1254(Rosales) disagreed with the Rivas court’s conclusion that
CALCRIM No. 359 incorrectly stated California law. The court in
Rosales noted that California law requires that some evidence
independent of a defendant’s out-of-court statements must be
introduced to prove the corpus delicti, or commission of the crime
itself. (Rosales, at p. 1260.) The court further noted that
California law permits use of a defendant’s inculpatory out-of-
court statements to establish his identity as the perpetrator of a
crime. (Ibid.) The court in Rosales found no confusion of these
two principles in CALCRIM No. 359:
“The corpus delicti rule is stated in the first two
paragraphs of CALCRIM No. 359. The law
concerning proof of identity by a defendant’s
“The identity of the person who committed the
crime [and the degree of the crime] may be proved by
the defendant’s statement[s] alone.
“You may not convict the defendant unless the
People have proved (his/her) guilt beyond a
reasonable doubt.”
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extrajudicial statements is correctly stated in the
third paragraph. There is no danger a jury will be
unable to separate the two rules any more than in
CALJIC No. 2[.]72,[8] which has been approved by our
Supreme Court . . . . CALCRIM No. 359 correctly
states the law. [Citations.] There was no reasonable
likelihood the jury was confused and misapplied the
instruction. Finally CALCRIM No. 359 reminds the
jury that the accused may not be convicted unless the
prosecution proves guilt beyond a reasonable doubt.”
(Rosales, at pp. 1260-1261.)
We agree with the Rosales court’s conclusion that
CALCRIM No. 359 is a correct statement of California law. We
further conclude there was no reasonable likelihood the jury in
this case was confused and misapplied the instruction.
CALCRIM No. 359, moreover, was modified after the Rivas
court’s decision to address the concerns raised by the court in
that case. (CALCRIM No. 359 (2018 rev.).) The modified
instruction was given by the trial court in this case.
We find no instructional error and no reasonable likelihood
of jury confusion or misapplication of the trial court’s
instructions.
V. Alleged cumulative error
We reject defendant’s contention that the cumulative effect
of the claimed errors identified in his appeal deprived him of due
8 CALJIC No. 2.72, similar to CALCRIM No. 359 allows use
of an out of court statement to establish a perpetrator’s identity:
“The identity of the person who is alleged to have committed a
crime is not an element of the crime . . . . The identity . . . may be
established by [a] [an] [confession] [or] [admission].” The
California Supreme Court in People v. Foster (2010) 50 Cal.4th
1301, 1344-1345, approved the use of CALJIC No. 2.72.
25
process of law and a fair trial. Because we have found none of
the claimed errors to constitute individual errors, they cannot as
a group constitute cumulative error. (People v. Richardson (2008)
43 Cal.4th 959, 1036, abrogated on other grounds by statutory
repeal as stated in People v. Nieves (2021) 11 Cal.5th 404, 509;
People v. Lopez (2021) 73 Cal.App.5th 327, 348.)
VI. Modification of judgment
Government Code section 70373, subdivision (a) requires
that a $30 assessment be imposed on every conviction for a
criminal offense. Penal Code section 1465.8, subdivision (a)
similarly requires that a $40 assessment be imposed on every
conviction for a criminal offense. Defendant was convicted of
three counts of first degree murder, but the sentencing minute
order and abstract of judgment reflect the imposition of only one
Government Code section 70373 assessment and only one section
1465.8 assessment. The omission of such assessments and
penalties may be corrected for the first time on appeal. (People v.
Castellanos (2009) 175 Cal.App.4th 1524, 1530.)
The Attorney General contends the judgment should be
corrected to reflect the imposition of three $30 Government Code
section 70373, subdivision (a) assessments and three $40 Penal
Code section 1465.8, subdivision (a) assessments. Defendant
does not argue otherwise. We therefore direct the trial court to
amend the judgment, the sentencing minute order, and abstract
of judgment accordingly.
DISPOSITION
We direct the trial court to amend the judgment,
sentencing minute order, and abstract of judgment to reflect the
imposition of three $30 Government Code section 70373,
26
subdivision (a) assessments and three $40 Penal Code section
1465.8, subdivision (a) assessments. In all other respects, the
judgment is affirmed.
CHAVEZ, Acting P. J.
We concur:
HOFFSTADT, J.
BENKE, J.*
* Retired Associate Justice of the Court of Appeal, Fourth
Appellate District, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
27