People v. Hernandez CA2/4

Filed 10/27/20 P. v. Hernandez CA2/4
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B300227
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. LA074325)
v.
EDUARDO HERNANDEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles
County, Susan M. Speer, Judge. Affirmed.
Thomas Owen, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney
General, Scott A. Taryle, Supervising Deputy Attorney General, and
Colleen M. Tiedemann, Deputy Attorney General, for Plaintiff and
Respondent.
Defendant Eduardo Hernandez appeals from a judgment of
conviction after a jury convicted him of attempted willful, deliberate,
and premeditated murder (Pen. Code, §§ 664/187, subd. (a)),1 and found
true that he personally and intentionally discharged a firearm
(§ 12022.53, subd. (c)) causing great bodily injury (§ 122022.53, subd.
(d)), and committed the crime for the benefit of, at the direction of, or in
association with a criminal street gang (§ 186.22, subd. (b)).2 In a
bifurcated proceeding, defendant admitted he had suffered a prior
strike. The trial court later struck defendant’s prior strike (see People
v. Superior Court (Romero) (1996) 13 Cal.4th 497), sentenced defendant
to an overall term of 40 years to life imprisonment,3 and imposed
various fines, fees, and assessments.
On appeal, defendant contends: (1) his trial counsel rendered
ineffective assistance of counsel by failing to consult with or call to
testify an eyewitness identification expert; (2) the trial court erred in
excluding evidence showing that certain witnesses had “gang
tendencies;” (3) the prosecutor’s request that the court admonish
defendant for disrupting the trial violated defendant’s constitutional
1 Unspecified references to statutes are to the Penal Code.
2 A prior jury deadlocked on the charges, after which the court declared a
mistrial. This appeal follows the second jury trial.
3 The court sentenced defendant to 15 years to life for the attempted
premeditated murder, plus a consecutive 25 years to life for the section
12022.53, subdivision (d) enhancement. The court imposed and stayed a
consecutive 20 years for the section 12022.53, subdivision (c) enhancement.
2
rights as stated in Griffin v. California (1965) 380 U.S. 609 (Griffin);
(4) the errors were cumulative and resulted in an unfair trial; and
(5) the trial court abused its discretion by denying his motion for new
trial (§ 1181, subd. (5)).
We conclude that defendant has forfeited his contentions
regarding the exclusion of evidence and Griffin error, and in any event,
we disagree with his contentions. We also conclude that defense
counsel was not ineffective, and the trial court did not abuse its
discretion when it denied defendant’s motion for new trial. We affirm
the judgment.
FACTUAL BACKGROUND
I. Prosecution Evidence
This case arose from a gang-related shooting that took place on
June 2, 2012, outside the apartment complex where the attempted
murder victim, Efrain Hernandez, lived.4 At trial, all of the percipient
witnesses to the shooting—Efrain, his cousins Maribel Ochoa and Zaira
Rochin, and Efrain’s neighbor, Jazania Perez—largely denied
remembering anything about the shooting. As a result, much of the
prosecution’s evidence at trial consisted of prior statements about the
crime the witnesses made to the police, including audio recordings that
Los Angeles Police Detective Bryan Fox secretly made during
interviews he conducted with Ochoa, Rochin, and Perez two days after
4 For ease of reading, we refer to the victim by his first name.
3
the shooting (June 4, 2012), and an interview Fox conducted with
Efrain on July 25, 2012.
A. Police Officers’ Initial Response to the Shooting
Los Angeles Police Officer Michael Beyda testified that around
9:50 p.m. on June 2, 2012, he and his partner, Officer Keith Fischer,
responded to a radio call of a shooting. There were approximately 50 to
100 people congregating outside Efrain’s apartment complex. Beyda
located Efrain, who was lying face down in an alley behind the
apartment complex. After an ambulance arrived and transported
Efrain to the hospital, Beyda pulled Rochin aside to talk. Rochin told
Beyda that before the shooting, she had seen two male suspects walking
in the direction of Efrain as he stood outside his apartment. Efrain
appeared to have recognized the suspects. The suspects chased Efrain
to the alley located behind the apartment complex. Rochin then heard a
gunshot and saw the same two men running away. Rochin told Beyda
she recognized one of the men as “Eddie,” who she said was “possibly an
associate with 18th Street.”
Beyda also spoke to Perez at the scene. Perez told Beyda that she
had been in the back alley earlier in the night with Efrain and other
individuals when a burgundy sedan drove up. Someone in the car said
to Efrain, “Where you from?,” and he replied “Vineland,” before the car
drove away. Sometime thereafter, two of the men that were inside the
car chased Efrain from the front area of the apartment to the rear alley.
After Perez heard a gunshot, she saw one of the suspects and recognized
him as one of the men who had been sitting inside the burgundy car.
4
B. Officers Meet with Efrain and His Family at the Hospital
Officer Efren Angulo testified that around 10:30 p.m. the night of
the shooting, he and Officer Aldo Rodriguez went to speak with Efrain
at the hospital. Because Efrain was undergoing X-rays when they
arrived, the officers went into the waiting room and met with Efrain’s
family.
While in the waiting room, the officers were approached by Ochoa,
who told them she had witnessed the shooting. Standing in front of her
family, Ochoa told Angulo that defendant, who she identified as Eddie
Hernandez or “Menace,” had shot Efrain in the back. Ochoa recognized
defendant because she had grown up with him. Angulo informed the
gang unit of defendant’s identity, and in response, Rodriguez received a
photograph of defendant on his cell phone. According to Angulo, he
pulled Ochoa to the side so that Rodriguez could show her the picture.
Ochoa looked at the picture and identified defendant as the shooter,
though she was “unsure” because the shooting happened so fast.
After Efrain completed his X-rays, Angulo and Rodriguez spoke
with him. Angulo showed Efrain the same photograph he had shown
Ochoa, and Efrain responded, “‘Yes, that’s him, that’s the person that
shot me, Eddie.”5
5 Angulo noticed that Efrain “had a bunch of medical equipment on him”
when he spoke with the officers.
5
C. Unrecorded Interview of Efrain
Detective Fox was a member of the North Hollywood gang
detective unit tasked with investigating the shooting. Fox testified that
he had a conversation with Efrain at the hospital on June 4, 2012. Fox
did not record that conversation. According to Fox, Efrain appeared
“heavily sedated,” and said that a man named Menace, who Efrain later
identified as defendant, was involved in the incident preceding the
shooting. Efrain also told Fox that “Menace, Goblin, Ghost, Puppet or
Little Puppet, and somebody else that he didn’t know” from 18th Street
were involved.
D. Recorded Interviews of Ochoa, Rochin, Perez, and Efrain
Fox secretly recorded separate interviews of Ochoa, Rochin, and
Perez on June 4, 2012, and an interview with Efrain on July 25, 2012,
which were played for the jury. According to Fox, it was his practice to
hide a recording device during witness interviews for gang-related
crimes, because witnesses are generally hesitant to cooperate and may
recant their statements in the future.
1. Ochoa
In her trial testimony, Ochoa stated that she did not recall telling
the police that defendant shot her cousin, and did not recall identifying
defendant from the photograph shown to her at the hospital. Ochoa did
not remember the night of the shooting, and was “terrified” of being in
court and “[j]ust want[ed] to not remember” the shooting and
investigation.
6
During her interview with Fox, Ochoa stated that she, Efrain, and
other family members and friends were outside Efrain’s apartment near
the back alley sometime after 8:00 p.m. on June 2, 2012. At some point,
defendant and another man pulled up to the alley in a dark red car.
Wearing a white shirt, glasses, and blue jeans, defendant got out of the
car holding a gun, approached Efrain near the apartment carport, and
said, “Hey, you’re Chistoso, huh?” Ochoa recognized defendant because
she used to go to elementary and middle school with him. Defendant
told Efrain, “Yeah, you don’t—you might not remember. It’s me,
Menace. It’s Eddie.” Another man got out of the car, and defendant
said “18th Street.” Efrain jumped off of the car he had been sitting on,
kicked defendant, and ran back to his apartment. Ochoa watched as
defendant and the other man got into the car and left.
Approximately 10 minutes later, Ochoa and Efrain went outside to
the front stairway area near the street. Ochoa saw the same red car
pass by on the street, after which defendant and the same unknown
man approached the group. Everyone but Efrain and Ochoa ran inside
the apartment. Defendant and his cohort ran by Ochoa and followed
Efrain into the back alley; both men were carrying guns in their hands.
After she followed the men into the alley, Ochoa saw defendant fire
three shots from a dark revolver. Ochoa thought the second shot hit
Efrain in the back. When Efrain fell to the ground, Ochoa ran after the
men and watched as they got inside their car and drove away.
7
2. Rochin
Rochin testified that she could not remember telling officers that
defendant was involved in the shooting. She testified that she could not
have known that the shooter was defendant because she “was on the
other side of the wall” and saw nothing. Rochin admitted that before
she spoke with officers on June 4, 2012, she overhead her family
(including Ochoa) and friends talk about the suspects’ identities. She
agreed that overhearing that discussion had influenced her statements
to the police.
In her interview with Fox, Rochin stated that five men inside a
red car approached her and the others near the rear apartment carport
around 8:45 p.m. A man she identified as “Menace,” who wore blue
jeans, a white T-shirt, and glasses, got out of the car and asked Efrain,
“Where are you from?” and “we know who you are.” Another man got
out of the car and pulled a shank or other item from his pocket. Efrain
told Rochin and others to run before he jumped off of a car, kicked
Menace backwards, and ran inside the apartment.
When the group went back outside, Rochin saw the same red car
drive by “really fast” before two men approached the group. Rochin ran
inside the apartment, but came out after she heard gunshots. Rochin
saw “the two guys that shot” Efrain. Despite identifying the men as
“Eddie and the other guy,” Rochin did not see either man holding a gun.
Following the shooting, Rochin spoke with an unknown man who told
her that Menace was defendant. Rochin responded, “Who’s
Menace? . . . I know him by Eduardo or Eddie.” “And that’s when we
went on Facebook, me and Marlene, and were looking for him to see if
8
we would find anything—like pants and anything, which we kind of did,
and she showed you.”6
3. Perez
Perez testified that her identification of defendant as a possible
suspect was made after she had spoken with Ochoa and the family at
the hospital, and was not based on her personal observations.
In her interview with Fox, Perez said that she was standing inside
the apartment garage door when a car stopped near the rear carport on
June 2, 2012. Perez saw a guy wearing a white T-shirt, jeans, and
sunglasses get out of the car. Perez did not see the man’s face and did
not hear if he had mentioned anyone’s name. Perez did not see anyone
else get out of the car. When Efrain jumped off of the car, everyone ran
inside the apartment.
Perez was also outside in the front apartment stairwell when she
saw the guy with the white T-shirt; she heard Efrain say “Oh, fuck.
Run.” Perez and others ran inside the apartment, and Efrain ran to the
back. While inside Efrain’s apartment, Perez heard gunshots. She ran
toward the back alley and saw the same man in the white T-shirt and
another man wearing a black shirt and jeans walking away. Despite
telling Fox that she did not know if defendant was the man in the white
T-shirt, Perez identified defendant from a six-pack photographic lineup
as the person in the white T-shirt.
6 Rochin did not specify who Marlene was, and whether she meant to say
Maribel (Ochoa).
9
4. Efrain
At various times during his trial testimony, Efrain stated that
defendant was not the shooter, that Efrain had not seen defendant the
night of the shooting, and that he did not know who had shot him in the
back. Efrain had told Fox “what other people thought they [had] seen,”
because he “was going by what everybody else was saying.” Ochoa had
told Efrain that defendant was the shooter, and if she “would have said
a different name, then I probably would have done the same too, that it
was that guy.” Moreover, Efrain testified that he had lied to
investigators because he wanted to “direct” the investigation toward the
18th Street gang, which at the time was a rival gang of Vineland.7 The
gunshot wound to his spinal cord left Efrain disabled.
During his interview with Fox on July 25, 2012, Efrain
summarized the incident preceding the shooting with substantially the
same facts as Ochoa, Rochin, and Perez. However, Efrain claimed that
did not remember what happened after he began to run to the back
alley. Efrain stated that he did not recognize the guy in a white T-shirt
and jeans until after the shooting, when one of his friends told him that
it “was Eddie. That was Menace.” According to Efrain, defendant and
“the other guys who [were] with him” knew Efrain’s home address.
7 Efrain admitted that he was a member of the Sun Valley Vineland
Boys street gang, and went by the names “Dough Boy” and “Chistoso.” Efrain
knew defendant as “Menace” from 18th Street.
10
E. The Gang Evidence
Officer Luis Urbina testified as the prosecution’s gang expert.
Urbina had met defendant and knew him as Menace from 18th Street, a
violent gang that had committed shootings, assaults with deadly
weapons, robberies, vandalisms in 2012. Based on a hypothetical
scenario based on facts identical to this case, Urbina concluded that the
crime had been committed for the benefit of, in association with, or at
the direction of a criminal street gang.
F. Cell Phone Analysis
Fox testified that defendant and Efrain lived in close proximity to
each other. Fox calculated the time it took to drive from defendant’s
residence to the alley behind Efrain’s apartment. Observing all traffic
and speed laws, Fox concluded that it took two minutes six seconds to
complete the drive.
Special Agent Michael Easter reviewed phone records for
defendant’s cell phone on June 2, 2012. Based on the phone’s
communication with various cell towers, Easter concluded that between
9:00 p.m. and 9:07 p.m., defendant’s phone was in the area of his and
Efrain’s apartment. Consistent with the witnesses’ statements that the
red car had driven away, defendant’s phone was positioned away from
the area at 9:32 p.m. Finally, around 9:52 p.m., when officers received
the radio call of a shooting, defendant’s phone was in the area of where
the shooting had occurred.
11
II. Defense Evidence
Testifying on his own behalf, defendant explained that he and
Efrain were best friends in elementary and middle school, but lost
contact after both joined rival gangs. Defendant chose the moniker
“Menace.” He knew Efrain belonged to the Vineland gang, used the
gang moniker “Chistoso,” and lived in Vineland territory.
Defendant testified that the day before the shooting, he was with
a woman (Gina). The next day, defendant met with another woman
(Lola), and attempted to arrange a sexual liaison among Gina, Lola, and
himself. Around 9:04 p.m., defendant messaged his girlfriend (Cynthia)
and said, “All right, Ima go on a trip, some shit just happened, you
know what time it is, girl.” Defendant used that message “when I don’t
want to deal with any female’s B.S.”
Around 9:32 p.m., defendant walked with Lola and his male friend
to a smoke shop to pick up a pipe. Defendant provided no explanation
for why his cell phone was in Vineland territory at that time, as opposed
to the area near the smoke shop. Nevertheless, defendant testified that
he and Lola returned to her apartment, located in close proximity to his
own apartment, where he remained all night.
DISCUSSION
I. Defense Counsel Did Not Render Ineffective Assistance of Counsel
Defendant contends his trial counsel rendered ineffective
assistance of counsel, because she did consult with or call to testify an
eyewitness identification expert who could describe “the ill-effects of an
influenced group identification.” We disagree.
12
A. Relevant Proceedings
Following the verdict, and represented by new counsel, defendant
moved for a new trial, arguing (among other things) that his trial
counsel was ineffective for failing to consult with and call an eyewitness
identification expert. He argued that such an expert would have
“benefited” the jury by demonstrating how Rochin’s supposed
suggestion to the other witnesses that defendant was the shooter might
have influenced the witness’ out-of-court identifications. He also
suggested that the expert would discuss “‘Rochin’s ‘tip’” to the
investigating officers, which led the officers to show a single photograph
of defendant to the witnesses.8
At the hearing on defendant’s motion, defense trial counsel
testified that despite consulting with eyewitness identification experts
in the past, she did not do so in this case because the eyewitnesses
“were a jumbled mess and they didn’t want to testify, and when they
did testify . . . it was a mess.” Trial counsel confirmed that she
understood the issues created by the susceptibility of the witnesses’
identification by the suggestion from others that defendant was a
possible suspect. She had also researched suggestive show-ups and had
“went into detail about that suggestive single photo show up” during
trial.
8 Defendant’s argument was premised on police reports that had been
generated the night of the shooting. The reports, which were never admitted
into evidence at trial, did not mention anyone other than Rochin who had
identified defendant as a possible suspect.
13
The court found that trial counsel did not render ineffective
assistance. Given the danger of wasting substantial time, the court
reasoned that it would have excluded the expert from testifying. It also
agreed that trial counsel had adequately cross-examined each witness
and addressed the theories during argument and with jury instructions,
including CALCRIM No. 315.9
B. Governing Law
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.) “‘In assessing claims of ineffective
assistance of trial counsel, we consider whether counsel’s representation
fell below an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine
confidence in the outcome. [Citations.]’” (People v. Gamache (2010) 48
Cal.4th 347, 391 (Gamache).)
9 The jury was instructed with CALCRIM Nos. 226 (credibility of
witnesses), 302 (evaluating conflicting evidence), and 315 (eyewitness
identification). The instructions provided that the jury “alone must judge the
credibility or believability of the witnesses,” and provided two non-exclusive
lists of factors to evaluate the witnesses’ testimony and identification. Those
factors include whether the “witness’s testimony [was] influenced by a factor
such as bias or prejudice, a personal relationship with someone involved in
the case, or a personal interest in how the case is decided”; whether “the
witness [was] asked to pick the perpetrator out of a group”; and whether “the
witness ever change[d] his or her mind about the identification.”
14
Defendant bears the burden of establishing ineffective assistance
of counsel. (Gamache, supra, 48 Cal.4th at p. 391.) We indulge every
“‘presumption that counsel’s performance fell within the wide range of
professional competence and that counsel’s actions and inactions can be
explained as a matter of sound trial strategy.’” (Ibid.)
C. Analysis
Defendant has failed to prove deficient performance or resulting
prejudice in this case. The decision to call an expert witness to testify
about the psychological factors impacting witness identification is a
tactical matter for counsel to decide. (E.g., People v. Lewis and Oliver
(2006) 39 Cal.4th 970, 995; People v. McDonald (1984) 37 Cal.3d 351,
377 (McDonald), overruled on another ground in People v. Mendoza
(2000) 23 Cal.4th 896.) Despite her familiarity with eyewitness
identification experts, defense counsel did not utilize one in this case
because the witnesses’ testimony was “a jumbled mess” that did not
warrant expert testimony. Affording this tactical decision the deference
it is due under the available facts (People v. Hinton (2006) 37 Cal.4th
839, 876), counsel’s decision was reasonable.
Rochin, Perez, and Efrain testified that their out-of-court
identifications of defendant as a possible suspect had been influenced by
statements or discussions that Ochoa had with them or other family
members. Efrain highlighted the significance to him of Ochoa’s
statements: he testified that he “probably would have” identified
another person as the shooter if Ochoa had told him a different name.
15
Because the witnesses themselves undercut the reliability of the out-of-
court identifications, it is not at all clear what additional exculpatory
inferences could have been drawn if an expert had testified. (See
McDonald, supra, 37 Cal.3d at p. 367 [expert testimony should be
excluded “when it would add nothing at all to the jury’s common fund of
information”].)
Moreover, the trial court’s additional basis for denying the motion
for new trial (i.e. that it would have excluded the expert from testifying)
further suggests trial counsel’s decision was not ineffective. (See People
v. Thompson (2010) 49 Cal.4th 79, 122 [“[c]ounsel is not ineffective for
failing to make frivolous or futile motions”].) To the extent defendant
disagrees with the trial court’s reasoning, he has failed to provide any
cogent legal argument. (See People v. Bryant, Smith and Wheeler
(2014) 60 Cal.4th 335 [court may deem matter waived if party’s briefs
do not provide legal argument and citation to authority].)
The cases that defendant has relied upon, Caro v. Woodford (9th
Cir. 2002) 280 F.3d 1247 (Caro) and Dugas v. Coplan (1st Cir. 2005) 428
F.3d 317 (Dugas), are readily distinguishable. (See Caro, supra, at
pp. 1254–1255 [defense counsel declared he had no strategic reason for
failing to investigate the physiological effect of exposure to
neurotoxicants]; Dugas, supra, at pp. 329–330 [counsel had never tried
an arson case, lacked any knowledge of arson investigation, and could
not rebut the prosecutor’s own arson expert at trial].)
Aside from defendant’s failure to prove deficient performance, we
conclude no prejudice exists on this record; it is not reasonably probable
16
that a result more favorable to defendant would have been reached had
the expert witness testified. (People v. Watson (1956) 46 Cal.2d 818,
836.) We reach this conclusion for three reasons.
First, the trial involved “vigorous cross-examination, protective
rules of evidence, and jury instructions on both the fallibility of
eyewitness identification and the requirement that guilt be proved
beyond a reasonable doubt.” (Perry v. New Hampshire (2012) 565 U.S.
228, 233; accord, People v. Sanders (1995) 11 Cal.4th 475, 510.) Trial
counsel discussed theories of bias and influence through group
identification and the suggestiveness of the single photograph during
opening argument, cross-examination, and closing argument. The jury
was also instructed to consider bias and influence when determining
credibility of witness testimony and identification. We presume the
jury followed those instructions. (People v. Sanchez (2001) 26 Cal.4th
834, 852.)
Second, the out-of-court eyewitness identifications of defendant as
the shooter (through Ochoa and Efrain) and possible suspect (through
Rochin and Perez), though introduced through the witnesses’ prior
statements to the police, were compelling, and were corroborated by
evidence that afforded them independent reliability. (McDonald, supra,
37 Cal.3d at p. 377.) Defendant messaged his girlfriend at 9:04 p.m.—
around the time of the initial confrontation with Efrain—that he was
going somewhere after the occurrence of something that had “just
happened.” As established by his cell phone records, defendant was
around Efrain’s apartment during the initial confrontation and the
shooting.
17
Finally, the theory defendant sought to establish through an
expert witness—that Rochin had suggested to the others that defendant
was the shooter—is unsupported by any citation to the record, and
appears incorrect. Though Rochin was the first person to identify
defendant as a possible suspect, she never specified if he was the
shooter, and she could not do so because she did not witness the actual
shooting. The statements precipitating the single photograph were
made by Ochoa—the only witness (other than Efrain) who had seen the
shooting. Having failed to establish deficient performance and
prejudice, defendant’s claim fails.
II. Evidence of the Witnesses’ Gang Affiliation
Defendant challenges the trial court’s exclusion of evidence that
Ochoa, Rochin, and Perez had “gang tendencies.” It is not at all clear
from defendant’s appellate briefs what evidence he claims was
erroneously excluded. Having reviewed the record, it appears the
excluded evidence includes (1) a purported Facebook photograph of
Ochoa posing with an assault rifle alongside alleged gang members, and
(2) defendant’s opinion that Ochoa, Rochin, and Perez were “gang
affiliates.” We conclude that the issue is forfeited, and meritless in any
event.
A. Relevant Proceedings
Prior to opening statements, the prosecution moved to exclude a
Facebook photograph of Ochoa holding what was alleged to be an
assault rifle alongside gang members. Though defense counsel could
18
not specify when the photograph was taken, she argued that the
photograph had been admitted in the prior trial and tended to prove
Ochoa was “an associate” of a gang. The court excluded the photograph.
Even assuming the photograph had been taken around the time of the
shooting, the court found the photograph was irrelevant to any issue at
trial.
During his testimony at trial, defendant stated that Ochoa was
gang affiliated. When his counsel asked “[w]hat does that mean?,” the
prosecutor objected. At a sidebar conference, defense counsel argued
that defendant’s opinion was based on viewing photographs of Ochoa on
Facebook “with gangsters making gang signs.” Counsel asserted the
photographs were relevant because they contradicted Ochoa’s testimony
that she was afraid of gangs. The prosecutor questioned the
authenticity of the photograph. The court questioned whether
defendant’s opinion of Ochoa’s gang affiliation was based on his
personal knowledge. Defense counsel replied that defendant had
personal knowledge because he and Ochoa “hung out together.” The
prosecutor responded by calling the court’s attention to defendant’s
testimony moments before, wherein defendant stated “I never had a
conversation with [Ochoa] with the exception, I went to the beach with
this family on one occasion [around age 11] and . . . yeah, I conversated
[sic] with her that day and that day only.” The court tabled the issues,
and requested that defendant testify on other matters so the parties
could discuss the evidentiary issues outside the jury’s presence.
During a break in the proceedings, outside the presence of the
jury, the court referred to defendant’s prior testimony that he believed
19
Ochoa was gang affiliated, and questioned whether defendant intended
to expand on that testimony. Defense counsel responded that defendant
sought to introduce his own testimony as to Ochoa’s “continuing
presence . . . in the gang” in junior high or middle school.
The court questioned defendant on his understanding of Ochoa’s
gang affiliation. Defendant responded that Ochoa was “still gang
affiliated to this day, all the witnesses are.” By “affiliated,” defendant
meant that each witness “kick[ed] it with gang members. When they
were relocated, they didn’t leave to another spot, they moved into—
deeper into the heart of their neighborhood. Their family members are
gang members. [¶] All this stuff about being gang activity—Zaira
Rochin, her husband is a gang member.” The defendant noted he had
“pictures of them throwing up gang signs, all of them.” Besides the
photographs, defendant noted that Ochoa’s family and ex-boyfriend
were gang members.
Having heard defendant’s offer of proof, the court excluded
defendant’s opinion about the witnesses’ gang affiliation because it
lacked a proper a foundation, and was based on hearsay and Facebook
photographs, which were not authenticated. The court also noted the
opinion was irrelevant, as Urbina had already testified that gang
members do not cooperate with police or during trial for fear of
retaliation. Finally, if the court were “wrong in all of that, I’m
excluding it under 352 as time consuming and more prejudicial than
probative and would cause confusion to the jurors.”
20
B. Analysis
On appeal, defendant contends the court erred in excluding the
evidence, because it would have undermined the credibility of the
witnesses “who testified they were scared . . . frightened women and
therefore uncooperative at trial, and to show an incentive for them to
finger [defendant], a rival gang member, for the shooting.”
Defendant has forfeited any challenge to the exclusion of evidence
that was intended to “show an incentive” for the witnesses to identify
defendant, “a rival gang member, for the shooting.” Defendant never
argued in the trial court that the evidence was relevant for this
purpose. (See Evid. Code, § 354, subds. (a), (c); In re Mark C. (1992) 7
Cal.App.4th 433, 444, citing Helfend v. Southern Cal. Rapid Transit
Dist. (1970) 2 Cal.3d 1, 17–18.) Moreover, defendant has not addressed
the court’s independent bases for excluding the evidence as
inadmissible hearsay and without foundation. (Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784–785 [“When an appellant fails
to raise a point . . . we treat the point as waived”]; see also People v.
Stanley (1995) 10 Cal.4th 764, 793).10
Even assuming defendant has not forfeited the contention, we
conclude that the court did not abuse its discretion in excluding the
evidence. (See People v. Sanchez (2019) 7 Cal.5th 14, 54.)
With regard to the Facebook photograph of Ochoa, defendant has
failed to establish an adequate foundation for its admission.
10 The only law that defendant has cited in his appellate briefs is
Evidence Code section 352, a case defining “prejudice” under section 352, and
the applicable standard of review of the exclusion of evidence.
21
“Authentication of a writing, including a photograph, is required before
it may be admitted in evidence. ([Evid. Code,] §§ 250, 1401.)
Authentication [requires] ‘the introduction of evidence sufficient to
sustain a finding that it is the writing that the proponent of the
evidence claims it is’ or ‘the establishment of such facts by any other
means provided by law’ (§ 1400).” (People v. Goldsmith (2014) 59
Cal.4th 258, 266; see Evid. Code, § 403, subd. (a)(3).) Evidence to
authenticate a photograph may be provided by the person taking the
photograph, a person who witness the event being recorded, other
witness testimony, circumstantial evidence, content and location, and
“‘any other means provided by law,’” including a statutory presumption.
(People v. Goldsmith, supra, at p. 268.) Defendant never attempted—at
trial or in this appeal—to establish an evidentiary basis regarding any
specific photograph, such as who had taken the photographs, when and
where they were taken, and who (other than Ochoa) was in the
photographs.
Defendant also failed to establish an adequate foundation for his
opinion that Ochoa, Rochin, and Perez were gang affiliated. A
defendant may provide an opinion only on things “[r]ationally based on”
his own perception, and “[h]elpful to a clear understanding of his
testimony.” (Evid. Code, § 800.) “‘By contrast, when a lay witness
offers an opinion that goes beyond the facts the witness personally
observed, it is . . . inadmissible.’ [Citation.]” (People v. Jones (2017) 3
Cal.5th 583, 602.) Defendant never established that he personally
observed Ochoa, Rochin, or Perez engaging in “gang affiliated” activity.
Because his opinion was based on things he had learned from others
22
(either directly or through Facebook), his opinion was properly
excluded. (Compare ibid. [lay opinion that defendant had left gang
membership was inadmissible; witness’s discussions with defendant,
gang members, and other people constituted inadmissible hearsay].)
Finally, the court did not abuse its discretion in excluding the
evidence under Evidence Code section 352. A trial court may exclude
evidence if its probative value is substantially outweighed by the
probability that its admission will necessitate undue consumption of
time, or create substantial danger of confusing the issues or misleading
the jury. (Evid. Code, § 352; see People v. Wheeler (1992) 4 Cal.4th 284,
296 [trial courts have broad discretion to rule under Evid. Code, § 352].)
Even assuming it was potentially relevant (Evid. Code, § 780, subd. (f)),
the evidence was cumulative of other less inflammatory evidence
establishing witness bias. Defendant had already stated his opinion
that Ochoa was gang affiliated, and the court did not strike that
testimony. The witnesses also established that through Efrain, they
were either affiliated or familiar with the Vineland gang, a rival of 18th
Street, and might have had a motive to identify a rival gang member as
the perpetrator. The court did not err in concluding that evidence of the
witnesses’ supposed relationships with other Vineland gang members
was cumulative and would necessitate undue consumption of time. (See
People v. Hamilton (2009) 45 Cal.4th 863, 946 [courts may “‘prevent
criminal trials from degenerating into nitpicking wars of attrition over
collateral credibility issues’”].)
23
III. Griffin Error
Defendant contends the prosecutor “lashed out at [defendant] and
challenged him in front of the jury to testify,” in violation of his
constitutional rights as stated in Griffin, supra, 380 U.S. at pages 614–
615. Defendant forfeited this contention on appeal by failing to raise it
at trial. Regardless, the contention lacks merit.
A. Relevant Proceedings
During her cross-examination of Efrain, defense counsel inquired
whether he had been shown a six-pack photographic lineup of the
suspects. As Efrain testified, defendant interjected and said, “He’s not
talking about the six pack, he’s talking about the . . . picture.” Efrain
agreed with defendant that he was only shown the single photograph,
at which point defendant stated “[t]hat’s the actual picture.” During
redirect examination, the prosecutor showed Efrain the single
photograph and inquired if he recognized defendant. After defense
counsel objected, the prosecutor (apparently referring to a comment
made by defendant) stated: “I would ask the court to admonish the
defendant to stop speaking loudly. He’s--you know, he has a lawyer
there to speak for him. If he wants to testify, he can take the stand and
he shouldn’t be speaking in court.” The prosecutor continued his
redirect examination of Efrain.
Later that day, the trial court admonished the jury as follows:
“Before lunch a comment was made by one of the
prosecutors that I missed, focusing on the testimony of the
witness. So I just want to give you an admonition at this
time.
24
“As I explained to you before the trial, the defendant
has an absolute right not to testify. This is guaranteed to
him by the Fifth Amendment.
“But, however, a defendant cannot testify or attempt to
provide evidence for the benefit of the jurors from counsel
table. He actually has to take the witness stand and be
sworn under oath and be cross-examined. Okay?
“However, having said that, a prosecutor is not allowed
to comment on a defendant’s right to testify or to remain
silent or to challenge the defendant to testify.
“So if you heard any comments about that from the—
one of the prosecutors, you should disregard it, not let it
enter your deliberations in any way.”
After the People’s case, and outside the jury’s presence, the
prosecution advised defendant of his right to testify.11 In response,
defendant stated, “Yes, sir, I think I have to testify.” The prosecutor
replied, “Well, sir, you don’t have to testify. The burden is always on
the People to prove our case beyond a reasonable doubt, so it’s not that
you have to testify, this is--it must be your election to testify.”
Defendant stated, “No, it’s my decision, I’m choosing to testify.” He
stated again that it was his decision to testify, and that no one promised
or threatened him to testify. Defendant wanted to testify of his own
free will because it was in his “best interest in the defense.” Defense
counsel concurred in defendant testifying.
11 The prosecutor advised defendant that the “right to testify” was “yours
and yours alone and no one can force you and no one can challenge you to do
it, this is totally up to you.” The prosecutor continued: “I can’t use it against
you, the jury cannot use it against you, no one can use it against you if you
elect not to testify. [¶] However, you also have an absolute constitutional
right to testify on your own behalf. Is it your desire to take the stand today?”
25
In his motion for new trial following the verdict, defendant
asserted the prosecutor’s request for an admonition constituted Griffin
error because it challenged defendant to testify. At the hearing on
defendant’s motion, defense counsel conceded that defendant may have
spoken directly to Efrain during redirect examination so that defendant
could clarify the prosecutor’s question. Defense counsel also stated that
defendant chose to testify because he wanted to tell his story.
Defendant never told counsel that he felt challenged by the prosecutor.
The court found no Griffin error. It reasoned that the prosecutor’s
request for an admonition was warranted, as defendant had spoken out
frequently during trial, which may not be fully reflected in the trial
transcripts.
B. Analysis
Defendant has forfeited this issue by failing to object to the
prosecutor’s statements during Efrain’s testimony. (People v. Valdez
(2004) 32 Cal.4th 73, 127 (Valdez); People v. Mitcham (1992) 1 Cal.4th
1027, 1050.) Nor did raising the issue in a motion for new trial revive it
for appellate review. (People v. Williams (1997) 16 Cal.4th 153, 254.)
To avoid forfeiture, defendant now contends his counsel was
ineffective for failing to object. However, defendant did not raise an
ineffective assistance claim on this issue in his opening brief, and
waited to assert ineffective assistance in his reply brief. Defendant has
forfeited the claim by his failure to raise it in his opening brief. (People
26
v. Rangel (2016) 62 Cal.4th 1192, 1218; People v. Duff (2014) 58 Cal.4th
527, 550, fn. 9.)
In any event, there was no Griffin error, which requires “‘comment
by the prosecution on the accused’s silence or instructions by the court
that such silence is evidence of guilt.’” (United States v. Robinson
(1988) 485 U.S. 25, 30 (Robinson), quoting Griffin, supra, 380 U.S. at
p. 615.) Viewing the prosecutor’s request for an admonition, and the
court’s subsequent admonition in context, it is clear that both were fair
responses to defendant’s disruptive behavior during trial. (Robinson,
supra, at p. 32.) Defendant had no right to personally examine the
witnesses or testify from counsel table during the People’s case-in-chief.
(See Evid. Code, § 710; Faretta v. California (1975) 422 U.S. 806, 819,
835.) Defendant violated those prohibitions by interjecting over counsel
and making statements about the facts during Efrain’s testimony. The
prosecutor’s comments and the court’s admonition did not suggest a
failure to testify would be evidence of defendant’s guilt. (Compare
People v. Gomez (1967) 252 Cal.App.2d 844, 855–856 [admonition that
defendant’s “‘opportunity to talk in this case has expired. He could
have taken the stand and testified. He elected not to do so. Therefore,
he must remain silent. He can tell his attorney what he wants to tell
him’” did not constitute Griffin error], disapproved on another ground in
People v. Tribble (1971) 4 Cal.3d 826, 832.) And, obviously, because
defendant chose to testify—and did so for reasons having nothing to do
27
with the prosecutor’s comment—there was no danger that the jury
might infer guilt based on a failure to testify.12
4. Cumulative Error
There being no errors to accumulate, defendant’s assertion that
cumulative error resulted in an unfair trial necessarily fails. (Valdez,
supra, 32 Cal.4th at p. 139.)
5. Motion for New Trial
As discussed, defendant filed a motion for new trial following the
verdict, and argued inter alia that trial counsel rendered ineffective
assistance by failing to consult with or call an eyewitness identification
expert, and that the prosecutor’s request to admonish defendant
constituted Griffin error.13 The People opposed the motion, and
12 The single case on which defendant relies, People v. Guzman (2000) 80
Cal.App.4th 1282, is readily distinguishable. In Guzman, the prosecutor in a
hit-and-run and assault case tried to support the victim’s credibility by
emphasizing that, while the defendant tried to flee the crime scene, the
victim cooperated with the police and came to court to testify. (Id. at
pp. 1285–1286.) The prosecutor repeatedly mentioned the victim’s
willingness to testify during his rebuttal argument, and had used a
demonstrative chart to further his point. (Id at p. 1286.) In finding Griffin
error, the court noted that the prosecutor had “repeatedly and flagrantly”
focused on defendant’s right to remain silent by consistently drawing the
jury’s attention to the fact he had not taken the stand. (Id. at pp. 1289–1290;
see id. at p. 1290 [“This is not a case where a single isolated comment may
have indirectly touched on the defendant’s failure to testify”].)
13 Defendant also raised eight other claims of ineffective assistance of
counsel. Defendant has not raised those claims this appeal.
28
defendant filed a motion in reply. The trial court denied the motion for
new trial.
Defendant contends the trial court erred in denying the new trial
motion based on the first three claims he has asserted in this appeal.
Our prior analysis of these contentions disposes of defendant’s
additional claim that the trial court erred in denying the motion for a
new trial on these grounds.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
29