Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. CC511478
RUSHING, P.J.
I. Statement of the Case
A jury convicted defendant Jamil Ahmad of first degree murder, assault with a semiautomatic firearm, and possession of a firearm by a felon and further found that he personally used a firearm, intentionally discharged a firearm causing death or great bodily injury, and personally inflicted great bodily injury. (Pen. Code, §§ 187, subd. (a), 189, 245, subd. (b), 1203, subd. (e)(3), 12021.1, subd. (a), 12022.53, subds. (b), (c), & (d), 12022.7, subd. (a).) Thereafter, the court found that defendant had a prior strike conviction and had served two prison terms. (Pen. Code, §§ 667, subds. (a), (b)-(i), 667.5, subd. (b), 1170.12.) The court sentenced him to an indeterminate term of 75 years to life plus a determinate term of 31 years, which included a concurrent term for possession of a firearm by a felon.
On appeal from the judgment, defendant claims there is insufficient evidence to support his convictions. He further claims the court erred in limiting the admission of exculpatory evidence; giving a flight instruction; and giving inadequate or flawed instructions on prior convictions, voluntary intoxication, and reasonable doubt. Last, he claims the court erred in imposing a concurrent term for possession of a firearm.
Defendant also filed a petition for a writ of habeas corpus. (H033529, In re Ahmad.) In it, he alleges that defense counsel rendered ineffective assistance in failing to investigate or offer evidence that was available to corroborate his testimony
II. Evidence
Shalisha Wiggins and defendant had a relationship for two years, and in 1988, Wiggins gave birth to their daughter W. Defendant and Wiggins separated when W. was two years old. Over the next 17 years, Wiggins saw defendant only when he came to pick up W. During that time, Wiggins had three more children—R., S., and T. By May 2005, Wiggins, 19-year-old W., 17-year-old R., 15-year-old S., and 11-year-old T. were living in an apartment on Renaissance Drive in San Jose along with Wiggins’s boyfriend, Richard Garza, who was not supposed to be living there. Wiggins and Garza used methamphetamines. The family’s finances were strained, and Wiggins received welfare and some money from her grandmother. Garza was unemployed and contributed nothing. The family was also the subject of a pending dependency case. Peggy Cathcart, their social worker, regularly visited Wiggins’s apartment from August 2004 to June 2005, frequently spoke to Wiggins on the phone, and counseled her. She also monitored the children’s safety and performance at school. Cathcart never met Garza, and until May 2005, no one had informed her that he was living in the apartment.
Cathcart testified that W. regularly complained about Garza and his presence in the apartment. W. did not like him or get along with him. She said that he inappropriately asserted authority, and partly because of him, there was never enough food for the children, who were suffering. As time went on, W. became more and more frustrated and vocal about Garza. R. also complained about Garza and his relationship with Wiggins. R. felt that Garza distracted Wiggins’s attention from her children, and he too complained that there was not enough food in the apartment. According to Cathcart, all of the children frequently expressed resentment that Garza had his own private refrigerator that Wiggins would stock and they could not touch.
At trial, W. confirmed that she complained to Cathcart about the lack of food, Wiggins and Garza’s use of money to buy food for themselves, and Wiggins and Garza’s use of drugs.
Cathcart testified that at a dependency hearing on Wednesday, May 4, 2005. County Counsel and Social Services Department recommended dismissing the case, which would result in Wiggins gaining legal custody. Dismissal would also end the court’s control over conditions in the apartment, including Garza’s presence, unless there was a new complaint. Cathcart spoke to R. and W. about this. R. was concerned about not having a backup plan after the case was closed. Ultimately, the hearing was continued to the next day, May 5.
At dinner time on May 4, Wiggins and R. got into a heated argument. R. was angry that Wiggins had brought home more food for her and Garza than for the children. R. was also mad because Wiggins had not repaid a loan from him and instead spent money on Garza, leaving the children with nothing to eat. Wiggins was angry at R. because he had received a bad report card and had used his grandfather’s credit card without permission to pay his cell phone bill. At one point, Wiggins hit R. in the mouth, took his cell phone, and threw the battery over the balcony. R. put Wiggins in a choke hold, turned over a table, and knocked down some curtains. W. called her Aunt Aisha, defendant’s older sister, but Wiggins grabbed the phone, hung up, and yelled at W. for talking about private family matters. R. then told Wiggins that he hated her. W., who was also angry about the food situation that night, said she was tired of Wiggins’s “bullshit,” and sometime after 10:00 p.m., R. and W. angrily left.
After leaving, R. and W. called around for a ride to their grandmother’s home. They also spoke to defendant and told him what had just happened. Defendant asked if they were okay and if Wiggins and Garza were still at home.
After speaking to defendant, R. and W. called Cathcart, who picked them up and took them to the grandmother’s home. At that time, they told Cathcart that Garza had been living at the apartment. According to Cathcart, R. was extremely angry about it and complained all the way to his grandmother’s house. He was trembling and hyperventilating and his stuttering became more pronounced. W. also was upset and said she had had enough. During the ride, W. was on her phone. After dropping them off, Cathcart called Wiggins and went to the apartment to make sure everything was okay. Garza was not there, and, after 15 minutes or so, she left.
Around 2:00 a.m., Wiggins and Garza went to bed. Later than night, they were suddenly awakened by booming noises. Wiggins got up and walked to the front door. It was wide open. A tall, muscular man with broad shoulders, wearing sunglasses and a “do rag” over his face, walked toward her, dipping his shoulders, especially his right side, in a “gangster kind of walk.” He pulled out a gun and said, “[Y]eah, wassup, wassup?” He then started shooting. Wiggins was at the bedroom door, and Garza was behind her. The first shot hit Wiggins in the chest. The man then kept firing, shooting around her at Garza. He then fled.
Carla Scruggs, a neighbor, heard gunshots around 3:00 a.m. Mary Randall, another neighbor, heard four or five loud kicks around 3:00 a.m. and later heard a car screeching away. Kimberly White, another neighbor, heard a loud boom, gunshots, screams of agony, and then the sound of someone running away.
After the shooter left, Wiggins called 911. She told the operator that the man knew exactly where her room was located in the apartment. When police arrived, they found the front door hanging loosely from the top hinge and the door jam shattered. There was a right shoe print on the lower panel of the door. It seemed that the shooter had mule-kicked the door open. There was one shell casing in the dining room, and the rest were in the back bedroom.
Garza was shot 11 times and died from multiple wounds. Wiggins was hit four times and taken to the hospital. There, she spoke to Officer Brian Spears and Lieutenant Tim Porter of the San Jose Police Department. Though in pain, she told Officer Spears that the shooter was a muscular, African-American, who walked with a “pimp walk.” She said she could not identify who he was, but she knew his voice. She did not believe it was R. Officer Spears asked whether the shooter might have been a relative of R.’s named James Jackson because R. had once threatened to “get his folks and shoot up everyone in there[.]” Wiggins said it could have been Jackson, but she did not want to “send another black man behind bars.” However, she did not describe Jackson as someone with a muscular build. Wiggins told Lieutenant Porter that the shooter was taller than she was—i.e., taller than five-seven or five-eight—and had broad shoulders and a muscular build. She could not identify him.
At trial, Wiggins was not certain who shot her, but she said the man was taller than she was, he walked and talked like an African-American, and he had a familiar voice.
Early that morning, after hearing about the murder, Cathcart called defendant. He was shocked but expressed anger and frustration at the dependency system for failing to protect W.’s interests.
Later that day, Lieutenant Porter spoke to W. She was very serious. She talked about R. and Wiggins’s fight and said that Garza had verbally intervened. She complained about Wiggins and Garza and the lack of food in the apartment. She said that Wiggins and Garza hoarded food in their room, they used welfare money that was meant for the children, Wiggins paid more attention to Garza than her children, and Garza did not contribute financially. She did not like the way Garza and Wiggins acted around each other. She said that when she left the apartment that night, she felt like never coming back because she had lost respect for Wiggins and thought that her use of illegal drugs had affected her behavior and harmed the family. W. also opined that defendant did not like Garza. When asked if she thought defendant was capable of the murder, W. said, “[Y]eah,” explaining, however, that defendant would not do it but would send somebody else. However, when she thought about it, she noted some similarity between how the shooter had apparently walked and how defendant walked when he was trying to be cool and impress his girlfriend “Puddin.’ ”
At trial, W. admitted telling the police that she had complained about food, but she denied that she disliked Garza or ever saying so. She also denied or could not remember saying that Wiggins and Garza hoarded food. W. admitted that she complained to the police that Wiggins shared family money with Garza, but she denied complaining to defendant about money or food. She explained that she was embarrassed to let others know about those things, although she admitted telling R.’s grandmother. W. admitted being upset that Wiggins had brought Garza into the apartment but denied saying she had lost respect for Wiggins. She did not think a transcript of her police interview would refresh her recollection of what she had said.
At trial, R. testified that he liked Garza and denied ever saying otherwise. He denied that he was resentful and frustrated because Garza contributed nothing and was “another mouth to feed,” and he denied saying so to the police. He denied saying he was jealous of Garza because of the attention Wiggins gave him. He also denied saying he hated Wiggins because she let Garza hit him. He said that Garza never touched him. Concerning transcripts of his police interview showing contrary statements, R. claimed either that he did not remember saying what was recorded or that the transcript and recording were wrong.
The afternoon after the murder, Wiggins was released from the hospital and went to her grandmother’s house. Early that evening, defendant drove over. Before Wiggins mentioned anything about the incident, defendant informed her that the shooter did not intend to shoot her, but Garza was hiding behind her.
A few days later, defendant called Wiggins and asked about the murder investigation, what the police were saying, and if they were talking about him. She lied and said the police had not mentioned him. He told her that it was important to keep him posted. He called a second time and reiterated his request. According to Wiggins, defendant sounded nervous.
A few weeks later, Lieutenant Porter interviewed defendant. He described defendant as six-one, 190 pounds, and very muscular, with a broad chest and big shoulders. Defendant’s leg seemed injured, and he had a noticeable limp. Although Lieutenant Porter assured defendant that he was not in trouble, defendant noticeably perspired, fidgeted in his chair, and developed a nervous facial twitch. Defendant said that on the night of the incident, he drove his Cadillac to the EZ 8 Motel in Newark and never left. Defendant said that it “hurt my heart” that he had to bring food to W., and it hurt his feelings when W. said she was hungry. He felt responsible.
Lieutenant Porter checked the records at the EZ 8 and learned that defendant had rented a room on May 4, 2005, at 11:17 p.m. The registration listed his vehicle as a Chevrolet and noted a license number. However, the number was invalid.
Sometime after the incident, R. and W. revealed to Wiggins statements that defendant had made during their phone conversation the night of the incident. Wiggins related this information to the police, who relayed it to Lieutenant Porter, and on July 11, 2005, he spoke to Wiggins. By this time, Wiggins had stopped using drugs. She was less traumatized, thinking more clearly, and no longer in “denial.” Wiggins said she did not want to accuse anyone, but she said that defendant and the shooter were a similar size, and defendant’s way of walking reminded her of the shooter’s gait. She also related what R. and W. had said about their conversation with defendant.
Lieutenant Porter unsuccessfully sought to reinterview R. and W. On July 20, 2005, Lieutenant Porter spoke to Wiggins again and directly asked her if defendant had been the shooter. She could not say whether he was or not. He then arranged for Wiggins to make a secretly monitored call to R. and W. Lieutenant Porter testified that it was an emotional call, there was some yelling and crying, there were also normal moments, and at no time did Wiggins badger R. or W..
During the call, W. said that defendant had called her after R.’s fight with Wiggins but before the shooting. He was very mad and yelled at her for not calling him about the fight. W. explained to Wiggins that she had first called her Aunt Aisha, who had then spoken to defendant. W. said did not want to call defendant because “I know how he gets.” According to W., defendant wanted to know if Wiggins was all right and if Garza had touched R. He then asked numerous questions about where Garza was at that time and what room he was in. Defendant told her that he did not want anything to happen to Wiggins because of Garza and did not want anyone to get hurt. Then, before hanging up, defendant told her that their conversation “didn’t happen.” W. told Wiggins that defendant did not like Garza, and she could not convince him otherwise. W. did not think that what she said to defendant that night had caused him to do anything but she implied that it was possible and noted that defendant did not seem surprised to hear about the murder. W. said she did not think defendant would have done anything or sent someone else over. She could not think of anyone who would shoot Wiggins and Garza. She said she had not wanted anything to happen to Garza regardless of how she felt.
During the same monitored call, R. said that defendant had asked him if he was all right. Defendant sounded very angry and strange, and he kept asking where in the apartment Garza stayed. R. could not understand why defendant was so angry since he was not R.’s father.
At trial, despite records indicating several calls, W. could only recall talking to defendant once and did not think that reviewing the records would refresh her recollection. Concerning her monitored call with Wiggins, W. testified variously that she was unable to remember what she said, she did not say what was recorded, or what she said was not true. She said she lied because Wiggins was badgering her. W. acknowledged that although R. had heard her conversation, he did not try to correct any of her alleged falsehoods. Nevertheless, she testified that defendant did not make any of the incriminating statements she attributed to him during the call.
R. testified that he was unaware the call was being monitored and admitted that he was honest and told the truth to Wiggins. However, he could not recall specifically what he said to Wiggins; and, despite recorded statements to the contrary, he denied telling Wiggins that defendant sounded strange. He said he would not know what he meant if he had said it, and he opined that reading a transcript would not refresh his recollection. In similar fashion, R. denied telling Wiggins that defendant wanted to know Garza’s exact location in the apartment or said he was going to call a man named Vic. He also denied that defendant said those things. Despite testimony from Lieutenant Porter to the contrary, R. also denied saying that defendant was mad during the conversation and asked about Garza’s location. R. testified that although he was very angry after the fight that night, he was shocked about Garza’s murder and had not wanted him dead.
In November 2005, Lieutenant Porter reinterviewed defendant. Defendant reiterated that he went to the EZ 8 Motel the night of the incident and never left. However, this time, he said that his friend Terence had driven him there.
An analysis of cell phone tower records concerning defendant’s phone use between 11:00 p.m. on May 4, 2005, and 3:00 a.m. on May 5 revealed that defendant’s phone traveled across the Dumbarton Bridge to Palo Alto and then down the Peninsula to Sunnyvale and then San Jose. At 11:00 p.m., the phone was in the area of the EZ 8 Motel in Newark. At 2:16 a.m., it was in Palo Alto. At 2:30 p.m. it was in Sunnyvale. And between 2:45 a.m. and 2:56 a.m., it was in San Jose. Later calls indicated a return trip to Newark between 3:14 a.m. and 3:49 a.m.
William Bodziak, a former F.B.I. agent, testified as a forensic specialist in footwear impressions. He analyzed the shoe impression on the door of Wiggins’s apartment to determine the brand and size of the shoe. He also determined whether defendant’s foot would have fit inside such a shoe. He testified that defendant’s foot was a size 12 1/2 to 13 1/2 depending on the measuring device and other variables. He acknowledged that the original state criminalist had determined that the impression was from a size 10 1/2 to 11 shoe. However, his analysis led him to conclude that the shoe was a Nike Air Force One or a counterfeit of that shoe, and the shoe size that left the impression was between 111/2 and 12. He opined that defendant’s foot would easily fit inside the shoe that left the impression.
For the purpose of the charge of unlawful possession of a gun by a felon, the parties stipulated that defendant suffered a prior felony conviction.
The Defense
Lieutenant Michael Sterner of the San Jose Police Department testified that on July 5, 2005, Wiggins called. She was not at her apartment and seemed afraid. She indicated that she thought defendant was responsible for the murder, and she was now afraid for her life. She said she had new information about what defendant had said to R. and W. the night of the incident. However, she said that defendant “definitely” was not the shooter.
Defendant admitted that he had felony convictions for armed robbery, being a driver and permitting discharge of a firearm, infliction of corporal punishment on a spouse, and reckless evasion of a peace officer. He also admitted that he was on parole at the time of the shooting. He denied killing Garza or arranging for someone else to do so.
He testified that he and Wiggins did not get along, and between 2003 and 2005, they were involved in a custody dispute over W. He saw Wiggins regularly at her apartment and at W.’s school. He opined that she had no trouble recognizing him.
Defendant explained that in 2005, he and W. had a good relationship and spoke to each other often. Although he was the noncustodial parent, he could and did visit W. whenever he wished. He looked forward to the end of the dependency case and what he considered the meddling interference by social services.
Defendant said he met Garza in 2003, but they had no dealings with each other. He had no reason to dislike or harm him. He denied that W. complained about Garza. He did bring groceries to the apartment when W. or Cathcart reported that the children needed food. However, he did not blame the shortage on Garza or Wiggins; he blamed himself.
Defendant explained that his girlfriend, Jessica Johnson, lived in Santa Clara in the general vicinity of Wiggins and worked at a convalescent hospital in East Palo Alto. Johnson spent Wednesday and Thursday nights at the hospital, and defendant spent weekends at her place.
On Wednesday May 4, defendant brought dinner to the hospital Johnson. Later that night, he returned to ask her for money. Although he had his own mobile barber business, he was short and needed some extra money to buy drugs for the night. She did not have any money with her but said he could take money from her apartment and gave him the key. He testified that he did not go there immediately because he already had drugs and was high and did not know what his plans were for the night. He said that Johnson would have no personal knowledge of what he did after she gave him her key.
Defendant explained that at the time, he was living with his sister Aisha in Menlo Park and was not allowed to use drugs there. That night, he decided to rent a room at the EZ 8 Motel in Newark. He registered for two people to avoid being flagged as a parolee.
Defendant admitted that he obtained his cell phone using the fake name, Milford Delane. He also acknowledged phone records showing that between 1:30 a.m. and 2:45 a.m., he made six calls. He said that one of the numbers he called was that of an East Palo Alto drug dealer named Lawrence Williams. Defendant said he drove to see Lawrence to get drugs on credit, but Lawrence refused so, around 2:45 a.m., he drove to Johnson’s apartment and got $70. From there, he returned to East Palo Alto and bought the drugs. He explained that Johnson and Wiggins lived near each other, and he would use the same route to get to both places. Defendant acknowledged that at 2:56 a.m., he called himself and left a message.
Defendant testified that between 3:14 and 3:30 a.m., he called Williams a few times. He also called and received calls from two drug friends, Joanne Touks and Sabrina Dudley, who both lived in East Palo Alto, to see if they wanted to party with him. He could not recall making any specific call or what he said. However, he was certain that he called Williams to buy some cocaine.
Defendant testified that that night, he spoke to his sister and W. He could not recall how many times or whether he made the calls or received them. He said he was under the influence at the time. He could not recall W. being upset or hearing about a fight. However, when he learned that Cathcart was going to get W. and R., he got angry at W. for not calling a family member first. He felt that Cathcart would prolong the meddling by social services.
He recalled being concerned about R. but could not recall whether R. was upset or angry. Nor could he remember hearing complaints about food or asking any questions about Garza. He denied asking where Garza was or saying he was going to have somebody do something or was going to call a man named Vic. However, he did, in fact, try to call Vic, who lived upstairs from Wiggins. He denied being angry at R., Wiggins, or Garza. And he denied telling W. that their conversation never took place. He also said he was unaware that Garza was not supposed to be living in the apartment.
Defendant said that W. and Cathcart called him early the next morning before 7:00 a.m., and he was shocked about the murder.
Defendant testified that when police interviewed him on May 18, at his parole office, he was nervous when they asked him about May 4 and 5. He said he lied about driving to the motel in his Cadillac and not leaving because he did not want to go to back to jail for using drugs. Later, after he was arrested and in custody, he made up a story about a man named Terrence dropping him at the motel and reiterated that he had stayed there all night. Although police asked him about his girlfriend, he did not mention that she had given him the key to her apartment to get some money. He explained that since he had initially lied, he thought telling the truth would only make matters worse. However, he acknowledged that he could have explained about Johnson’s key without mentioning drugs. Defendant also admitted that at the motel, he wrote down a false license plate number and vehicle make to avoid the chance of having his car searched.
Jessica Johnson testified that she had known defendant for 15 years and was his girlfriend since 2003. Her nickname is “Puddin.” She said he stayed at her apartment on weekends but did not have a key. She worked at a home for the developmentally disabled, and on Wednesdays and Thursdays she stayed there overnight.
Johnson testified that on Wednesday, May 4, between 5:00 and 6:00 p.m., defendant brought her some food. He stopped by again later and persuaded her to lend him money. She gave him the key to her apartment so he could go there and get it. She spoke to him the next day, but he was “out of it” and “couldn’t even respond to me.” She returned to her apartment on Friday, May 6, and found that some money in a drawer had been taken, but nothing else was missing. Later, she went to defendant’s house, and he returned her key. She assumed that he had taken the money, but she did not know when he had done so or where he was any particular time after he had borrowed her key.
Johnson admitted telling an investigator from the district attorney that she gave defendant her key on Cinco de Mayo (May 5) but explained that she was mistaken about the day because she had been watching something about Cinco de Mayo on television when he came by. She did not know what day it was, but she was certain it was before the murder. She said she was confused during the interview because the investigator did not show her a calendar until the end of the interview. However, when shown a transcript of the interview, Johnson acknowledged having a calendar during the interview and admitted that she had corrected herself concerning whether Cinco de Mayo was on Wednesday or Thursday. She also admitted telling the investigator that she knew it was Cinco de Mayo because there were people partying outside. However, she testified that they were Samoans, who partied every night.
Johnson testified that she also spoke to a defense investigator. However, she had no recollection of the interview. She conceded that at that time, she told the truth, and events were fresher in her mind. She did not recall telling the investigator that defendant brought her some food on Thursday, May 5, and she did not think that seeing the investigator’s notes would refresh her recollection. She could not recall whether she mentioned that defendant had borrowed her key.
Johnson testified that in July 2005, defendant took her car without her permission, and she reported it to the police. Contrary to the incident report by the California Highway Patrol, Johnson denied saying her car had been stolen or taken without permission. She admitted that he crashed it but denied being mad at him. She denied that later, he asked her to say that he had not stolen her car. Johnson also denied that defendant had a distinctive way of walking to impress people.
John Bourke, supervising criminalist for the Santa Clara County District Attorney’s Office, also testified as an expert in footwear evidence. He handled the initial analysis in this case and concluded that the shoeprint on Wiggins’s door was left by a size 10 1/2 to 11 shoe.
John DiMaggio testified as an expert in forensic podiatry. He reviewed the evidence concerning the shoe impression and Mr. Bodziak’s report and also performed his own evaluation. Although he testified that defendant’s foot was larger than the shoe sizes suggested by the impression left on the door and Mr. Bodziak’s testimony, he conceded that defendant’s foot would fit inside them, and, therefore, defendant could not be excluded.
Defendant tried on size 10 1/2 and 111/2 Nike shoes. He could get his foot inside but testified that in the former, his feet were so cramped he could not stand or walk; and in the latter, his feet were uncomfortable.
Rebuttal
Valente Santana, an investigator for public defender’s office, testified that in July 2006, he interviewed Johnson to see if she had any information about what defendant did on May 4, 5, and 6, 2005, that could support an alibi. He did not have a calendar with him to help identify the days. He could not recall if Johnson mentioned that defendant had borrowed the key to her apartment to get money. However, he would have made note of it if she had. Johnson also did not say that she had spoken to defendant the night before the murder, and he did not ask her about that night. Nor did she mention returning home to find that he had stopped by to get money. Johnson had no information about defendant’s whereabouts on May 5. She did report that she saw Wiggins a few days after the murder. She also said that defendant had brought her food at around 6:00 p.m. on May 6. Johnson told him that later, defendant had stolen her car; however, she also said that he might have had permission to take it.
John Kracht, an investigator for the district attorney, conducted a recorded interview with Johnson in November 2007. At that time, Johnson told him that defendant brought her some food and picked up her key on “Cinco de Mayo night,” which she thought was a Wednesday. However, when shown a calendar, she said it must have been Thursday. She was certain and repeatedly insisted that he came by on Cinco de Mayo night because she heard people partying outside. She also said that defendant did not have her key on Wednesday night May 4. When asked whether defendant said the phrase “wassup, wassup,” Johnson indicated that he used it and mimicked how he said it. She also said that defendant was a “Nike” man.
III. Sufficiency of the Evidence
Defendant contends that there is insufficient evidence to support his convictions and, in particular, his identity as the shooter.
When considering a challenge to the sufficiency of the evidence to support a criminal conviction or enhancement, we determine whether there is substantial evidence—i.e., evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could make the necessary findings beyond a reasonable doubt. In making that determination, we do not reweigh the evidence, resolve conflicts in the evidence, or reevaluate the credibility of witnesses. Rather, we review the whole record in the light most favorable to the judgment, we draw all reasonable inferences in support of it, and we presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (Jackson v. Virginia (1979) 443 U.S. 307, 319-320; People v. Johnson (1980) 26 Cal.3d 557, 578; People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)
Viewing the evidence in the light most favorable to the verdict, we note that W. complained to the police about Garza and his presence in the apartment. She reported that defendant did not like Garza. She said that because of Garza, the children lacked enough food and were often hungry. She said Garza had a negative influence on Wiggins and abetted her use of drugs. She said that the money that Wiggins spent on him should have been used for the family. And she said that Garza stole Wiggins’s attention.
Cathcart testified that the dependency case was ending, and the court would be powerless to do anything about Garza’s presence in the apartment unless someone filed a new complaint. She also testified that both W. and R. regularly complained about Garza and his impact on the children and life in the apartment.
The night of the murder, R. had a bitter fight with Wiggins over food and other things, W. got involved, and Garza had tried to intervene. W. became enraged and fed up with Wiggins, and both she and R. stormed out of the apartment. Later, W. spoke to defendant about what had happened. He got very angry at her for not calling him sooner. She later told Wiggins she had not wanted to call him because she knew how he got and did not want him to get angry.
Last, defendant admitted that he was deeply upset that W. did not have enough food, and it hurt that he had to bring her food.
This evidence supports a finding that before May 4, defendant had good reason to be angry about circumstances at Wiggins’s apartment and their impact on W. and upset at Garza for contributing to those problems; and that on May 4, given the juvenile court’s imminent loss of jurisdiction over conditions at Wiggins’s apartment and his late night conversation with W. and R., defendant had good reason to do something about Garza.
Next, we note that during his conversation with W. and R., defendant wanted to know if Garza had touched R. and said that he did not want anything to happen to Wiggins and did not want anyone to get hurt. He also repeatedly asked where Garza was inside the apartment. He then told W., in essence, to act as if their conversation had not taken place.
An analysis of cell phone tower records revealed that around the time of the murder, defendant’s cell phone was in San Jose, where Wiggins’s apartment is located. At that time, a disguised man wearing shoes that defendant could have fit into forcefully kicked Wiggins’s apartment door off its hinges, leaving a shoe print. According to Wiggins, the man was African-American, his height and build were similar to defendant’s, and, like defendant, he moved with a gangster-type swagger. His voice was also familiar to Wiggins. The intruder used the phrase “wassup, wassup,” a phrase that defendant’s girlfriend had heard him use and that she mimicked at trial. The intruder immediately started firing his gun. He shot Wiggins and then fired around her and shot Garza several times. Wiggins told the 911 operator that the intruder knew exactly where she and Garza would be inside the apartment.
After the incident, defendant had a leg injury that caused him to limp. W. told Wiggins that defendant did not seem surprised about the murder. And although Wiggins said that she rarely saw defendant during the previous 17 years, he came by to see her within a day of the murder and somehow knew that the intruder did not intend to shoot her and that Garza was hiding behind her. A few days later, defendant called Wiggins. He seemed nervous and wanted to know about the police investigation and if they had asked about him. He asked her to keep him posted and called back to reiterate that request.
In sum, although the prosecution’s case was circumstantial, the number of incriminating circumstances was large. We find that together, the evidence of motive; defendant’s statements to W. and R. just hours before the murder, including questions about where Garza was inside Wiggins’s apartment; the shooter’s apparent knowledge about where Wiggins and Garza were in the apartment; the physical similarity between defendant and the shooter, including his size, gait, voice, and phrases; the prosecution’s expert testimony about the shoe print; and defendant’s statements to Wiggins after the murder about the shooter’s intent constitute sufficient, if not very strong, evidence that defendant was the perpetrator.
We acknowledge that Wiggins never said that defendant was the shooter and at one time said he was definitely not the shooter. However, she also told police that she believed that defendant was involved. Even W. suspected that he was. Moreover, at trial, Wiggins could not, and did not, exclude him as the shooter. Under the circumstances, we do not find that the inconclusive and at times contradictory nature of Wiggins’s statements and testimony and her inability to identify defendant at trial precluded the jury from finding that defendant was the shooter.
Defendant’s reliance on People v. Reyes (1974) 12 Cal.3d 486 is misplaced. There, the court affirmed a murder conviction against Reyes but reversed the conviction of his codefendant Venegas because of insufficient evidence. There was no credible evidence that the offense involved two perpetrators and no evidence implicating Venegas. According to the court, the evidence supported only a “bare suspicion” that Venegas was involved, which was not enough to support his conviction. (Id. at p. 500.)
Simply put, the evidence here raises more than a “bare suspicion” of defendant’s guilt. Rather, there was ample evidence of motive, opportunity, and identity.
IV. Limitation on the Admissibility of Johnson’s Testimony
Defendant contends that the court committed reversible error in conditioning the admission of Johnson’s testimony on additional alibi evidence. He claims that her testimony was relevant and admissible, and the court’s ruling violated his constitutional rights and denied him a fair trial.
Background
Prior to trial, the prosecutor indicated his intent to introduce the cell phone tower records to show that defendant’s phone was in the area of Wiggins’s apartment around the time of the homicide and thereby establish that he was present and thus had an opportunity to commit the offense. The prosecutor also noted that the evidence tended to contradict defendant’s statements to the police that he never left his motel room in Newark. The prosecutor then sought to exclude evidence that defendant had borrowed the key to Johnson’s apartment, which is near Wiggins’s apartment.
Before ruling, the court asked defense counsel for a specific offer of proof. According to counsel, Johnson would testify that she was defendant’s girlfriend. On Wednesday, May 4, around 9:00 p.m., she gave him the key to her apartment so he could get some money to buy drugs. Johnson returned to her apartment sometime on Friday, May 6, and saw that some money had been taken but no signs of burglary. Defense counsel argued that the evidence was admissible to show that defendant had an innocent explanation for being in the area around the time of the homicide.
The court opined that Johnson’s testimony was, in effect, being offered to establish an alibi—i.e., that defendant was at Johnson’s apartment at the time of the murder. The court noted, however, that Johnson did not personally know whether defendant went to her apartment; and if he did go there, she had no personal knowledge of when he went.
The court further noted that the cell phone evidence was being offered only to establish that defendant had an opportunity to commit the offense because he was in the area; it was not being introduced to show, and the prosecutor was not arguing, that that defendant’s only reason for being in the area was to commit the crime or that he had no innocent explanation for being there.
The court opined that if the prosecutor intended to make such an argument, then Johnson’s testimony would be admissible to rebut it.
Under the circumstances, the court found that Johnson’s testimony to be irrelevant. First, it did not tend to negate defendant’s “opportunity” to commit the murder. Tthat defendant had a key and could have gone to Johnson’s apartment did not show that he was not in the area, as he had implied to the police. And although it was possible that defendant could have been at the apartment while the murder was happening, the court found that such an inference from Johnson’s testimony was pure speculation and thus could not reasonably rebut opportunity or establish an alibi. However, the court opined that Johnson’s testimony would be relevant to support an alibi if there was other evidence that defendant was at Johnson’s apartment at the time of the murder. Accordingly, the court found her testimony irrelevant and inadmissible unless such evidence was offered.
In response to the court’s ruling, defense counsel said, “if that’s the court’s ruling, it’s very likely, in fact almost a certainty that [defendant] is going to testify.” After the prosecution completed its case in chief, defendant elected to testify as summarized above, and the court admitted Johnson’s testimony to corroborate his alibi.
Discussion
Defendant claims that Johnson’s testimony was relevant to establish an alibi and rebut the cell phone evidence showing opportunity. In particular, he argues that the testimony tended to show his presence at Johnson’s apartment when the murder occurred or at least provide an “innocent explanation” for his late night presence in the area.
For purposes of discussion, we accept defendant phrase “innocent explanation,” even though his alleged purpose in going to Johnson’s apartment was to get money to buy drugs.
Only relevant evidence is admissible, and all relevant evidence is admissible unless excluded by statute. (Evid. Code, §§ 350, 351.) Evidence is relevant if it has “any tendency in reason to prove or disprove any disputed fact that is of consequences to the determination of the action.” (Evid. Code, § 210.) “The test of relevance is whether the evidence tends “ ‘logically, naturally, and by reasonable inference’ to establish material facts such as identity, intent, or motive. [Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 177, implicitly overruled on another point in People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)
With these principles in mind, we examine the relevance of Johnson’s proposed testimony.
The prosecution offered the cell phone records as circumstantial evidence to help prove identity: i.e., that defendant was the perpetrator. The records were relevant because they tended to show that (1) defendant traveled from Newark to an area in San Jose near Wiggins’s apartment, (2) he was in that area around the time of the murder, and therefore (3) he had the opportunity to commit the murder.
On the other hand, it is undisputed that Wiggins’s and Johnson’s apartments were in the same general area. Thus, Johnson’s testimony supported an inference that defendant had a reason to be in the area other than to assault Garza. Moreover, Johnson’s testimony that money was gone when she returned to her apartment further supported an inference that defendant did, in fact, go to Johnson’s apartment to get the money she had offered. Thus, at a minimum, Johnson’s proposed testimony had a reasonable tendency to rebut the circumstantial evidence and incriminating inference that defendant came to the area for a nefarious purpose.
Furthermore, we disagree with the trial court’s view that Johnson’s testimony supported only speculation that he was at Johnson’s apartment when the murder occurred. In our view, evidence that defendant went to Johnson’s apartment sometime between the evening of May 4 and the morning of May 6 together with the cell phone records showing that defendant was in the area around the time of the murder had some tendency, admittedly not a strong tendency, to show that he was at Johnson’s apartment—or on his way to or from there—and not at Wiggins’s apartment when the murder took place. At the very least, Johnson’s testimony was capable of raising a reasonable doubt concerning whether defendant was the intruder at Wiggins’s apartment.
Thus, just as the cell phone records had some tendency to prove identity in that they showed presence and opportunity, so too Johnson’s testimony was relevant to disprove identity because it tended to rebut evidence of nefarious purpose and provide an alibi.
We acknowledge that the California Supreme Court has repeatedly stated that trial courts have broad discretion in determining the relevance of evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1166; People v. Heard (2003) 31 Cal.4th 946, 972; People v. Scheid (1997) 16 Cal.4th 1, 14; People v. Crittenden (1994) 9 Cal.4th 83, 132; People v. Babbitt (1988) 45 Cal.3d 660, 681.) Thus, we analyze the trial court’s exercise of discretion.
We are, of course, bound by the court’s pronouncement. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) However, we respectfully question whether the determination of relevance truly involves an exercise of discretion. Relevance requires the application of a legal standard set forth in Evidence Code section 210: Does evidence have some tendency in reason to prove or disprove a disputed, material fact. This test appears to be objective—i.e., could a rational person draw an inference from the evidence that helped prove or disprove a disputed material fact. In our view, trial courts are in no better position than reviewing courts to make such a determination. Moreover, the application of a legal standard to undisputed facts (or facts found by the trial court and supported by substantial evidence) is generally viewed as a task that poses a question of law, subject to independent review, not deferential review for abuse of discretion. (People v. Saunders (2006) 38 Cal.4th. 1129, 1134 [“whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review]; e.g., People v. Salazar (2005) 35 Cal.4th 1031, 1042 [determination of whether evidence is material in Brady claim]; People v. Ramos (2004) 34 Cal.4th 494, 505 [determination of whether search or seizure was unreasonable]; People v. Ayala (2000) 24 Cal.4th 243, 279 [determination of whether facts establish probable cause]; People v. Ochoa (1998) 19 Cal.4th 353, 401-402 [determination of whether person is in custody purposes Miranda claim]; People v. Ledesma (1987) 43 Cal.3d 171, 217-218 [whether defense counsel’s conduct was unreasonable].)
Because, as discussed, the cell phone records and Johnson’s testimony supported an inference that defendant was elsewhere when the murder occurred, Johnson’s testimony was relevant and admissible. Consequently, it was unreasonable for the court to condition admissibility on additional evidence showing that defendant was elsewhere when the murder occurred. Furthermore, the court’s ruling seems to be arbitrary. The cell phone records were no more relevant on the issue of identity than Johnson’s proposed testimony, and therefore, we perceive no legal basis for the disparate treatment—i.e., allowing the phone records to prove identity without requiring additional foundation to show relevance but imposing such a requirement on Johnson’s testimony to disprove identity. Indeed, given the circumstantial nature of both the phone records and Johnson’s testimony, the court’s ruling was patently unfair, if not biased toward the prosecution.
Finally, even though Johnson’s lack of personal knowledge about whether defendant actually went to her apartment and, if so, when he was there limited the exculpatory value of her testimony, her testimony was nevertheless relevant. In general, we believe the trial court should have resolved any questions it had about its relevance in favor of allowing her to testify without limitation and letting jurors to determine the weight, if any, her testimony deserved. Indeed, our Supreme Court has advised trial courts that in exercising discretion, they should give defendants the benefit of any reasonable doubt. (People v. Wright (1985) 39 Cal.3d 576, 584.)
In sum, we conclude that the court abused its discretion because its determination of relevance and the limitation on the admission of Johnson’s testimony were unreasonable, arbitrary, and unfair. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10 [an abuse of discretion occurs when ruling is arbitrary, capricious, or results in a miscarriage of justice].) However, although we find error, we do not further find that it compels reversal.
Although Johnson’s testimony was sufficiently relevant to be admissible without further foundation, its exculpatory value was not particularly strong for a number of reasons. First, as evidence that defendant had an “innocent” reason to be in the area at the time of the murder, Johnson’s testimony tended to reaffirm the prosecution’s claim that he had he had the opportunity to commit the crime. Moreover, because, as the trial court observed, Johnson did not have any personal knowledge about when, if ever, defendant went to her apartment, the inference that defendant was at her apartment at the time of the murder was extremely weak.
We further note that had the court permitted Johnson to testify without further foundation, the limited exculpatory benefit of her testimony would have been undermined, as it ultimately was at trial. Johnson had an obvious reason to be biased toward defendant and to protect him: she was his long-time girlfriend. Moreover, when the defense investigator asked her about defendant’s activity the night of the murder, seeding evidence that might support an alibi, Johnson did not even mention that he had borrowed her key or may have gone to her apartment to get money. Furthermore, and contrary to Johnson’s trial testimony, she told the defense investigator that defendant brought her food on May 6, which was after the murder; she also said that he had stolen her car. Finally, we note that although Johnson related her story about defendant borrowing her key to the prosecutor’s investigator, she insisted that he did so on Cinco de Mayo—i.e. May 5—which also was after the murder occurred.
In sum, given the limited exculpatory value of Johnson’s direct testimony and the rebuttal evidence undermining it; given the strong evidence of defendant’s motive; given defendant’s incriminating statements to W. before the murder about not wanting Wiggins to get hurt, asking where Garza was, and warning W. to forget that the conversation took place; given the similarities between defendant and the shooter; given defendant’s statements to Wiggins shortly after the incident, in which he revealed information about the incident before Wiggins had told him anything about it; given defendant’s lies to the police, his false registration at the motel, and his failure to offer any alibi about going to Johnson’s house or buying drugs, even after he was accused of the murder—given all of this evidence, we do not find it reasonably probable that defendant would have obtained a more favorable result had the court allowed Johnson to testify without additional foundational evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Defendant claims that the court’s ruling compels reversal because, as a result of it, he testified and was impeached with his prior convictions. He argues that once jurors learned of his criminal background, jurors would be unable to resist finding that he was simply a parolee who went on a wild, violent, drug-induced rampage to avenge his daughter.
We acknowledge that after the court’s pre-trial ruling, defense counsel announced that it was “almost a certainty” that defendant would testify. And, after the prosecution presented its case in chief, defendant did so. However, by doing so, defendant was able to deny the murder and present a complete alibi. He was able to counter evidence of motive and the incriminating statements he made during his conversation with W. and R. He was able to explain why he lied to the police instead of telling them that he was at Johnson’s apartment when the murder occurred. And he was able to not only demonstrate but also explain why his feet did not fit shoes of the size that left a print on Wiggins’s apartment door. Moreover, he was able to have Johnson testify as well. In short, by choosing to testify, defendant added concrete and essential explanatory detail to what otherwise would have been a meager alibi defense had only Johnson testified. Simply put, the exculpatory benefit of defendant’s testimony far exceeded the limited exculpatory benefit he would have derived had only Johnson testified.
Defendant’s claim of prejudice, on the other hand, is unpersuasive. No witness, including a defendant who testifies, is entitled to a false aura of veracity. (People v. Chavez (2000) 84 Cal.App.4th 25, 28.) Defendant does not claim that the court abused its discretion in admitting his priors for impeachment; nor does he claim he was prejudiced by the jury’s proper and appropriate consideration of priors in determining his credibility. Rather, defendant claims prejudice from the possibility that jurors would improperly and inappropriately consider his priors as evidence of a bad character and propensity toward violence and convict him based on his criminal record rather than the evidence presented at trial.
However, the court specifically instructed the jurors that they could consider prior convictions only in evaluating defendant’s credibility. Moreover, we note that although some of the priors involved firearms, the evidence did not include any details about the underlying conduct, and the nature of the priors is not so inherently inflammatory that jurors could not be expected to follow the limiting instruction. Moreover, the record does not indicate that jurors were unable to do so. Under the circumstances, we presume that jurors are able to, and here did, follow the court’s instruction. (People v. Lindberg (2008) 45 Cal.4th 1, 26; People v. Hovarter (2008) 44 Cal.4th 983, 1005; see People v. Williams (2000) 79 Cal.App.4th 1157, 1171 [presume juries follow limiting instructions]).) Accordingly, we conclude that the instruction adequately protected defendant from any unfair and improper inferences of bad character and violent disposition that jurors might be tempted to draw from his prior convictions. (E.g., People v. Catlin (2001) 26 Cal.4th 81, 147 [instruction limiting use of prior convictions rendered instructional error and potential juror confusion therefrom harmless beyond a reasonable doubt]; People v. Panah (2005) 35 Cal.4th 395, 492 [same].)
The court instructed the jury, “If you find that a witness has been convicted of a felony, you may consider that fact only in evaluating the witness’s credibility. [¶] The fact of a conviction does not necessarily destroy or impair a witness’s credibility. It’s up to you to decide the weight of that fact and whether that fact makes the witness less believable.” (Italics added.)
Furthermore, separate and apart from defendant’s testimony and impeachment with prior convictions, the jury learned from other witnesses that he had suffered a prior conviction. And even if he could have testified without being impeached with his prior convictions, his veracity and credibility were independently compromised by evidence that he provided false information on the motel registration and twice lied to the police.
Thus, even though defendant testified and was impeached with his prior convictions, we reiterate, it is not reasonably probable he would have obtained a more favorable result had the court permitted Johnson to testify without further foundational evidence. (People v. Watson, supra, 46 Cal.2d at p. 836.)
We further reject defendant’s claim that the court’s ruling violated his federal constitutional rights and, therefore, must be reviewed under the harmless-beyond-a-reasonable-doubt standard established in Chapman v. California (1967) 386 U.S. 18.
“ ‘As a general matter, the “[a]pplication of the ordinary rules of evidence... does not impermissibly infringe on a defendant’s right to present a defense.” [Citations.]’ [Citation.] Because the trial court merely rejected some evidence concerning a defense, and did not preclude defendant from presenting a defense, any error is one of state law and is properly reviewed under People v. Watson, supra, 46 Cal.2d at page 836.... [Citation.]” (People v. McNeal (2009) 46 Cal.4th 1183, 1203, quoting People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 ; see People v. Benavides (2005) 35 Cal.4th 69, 91; People v. Cunningham (2001) 25 Cal.4th 926, 999; People v. Hawthorne (1992) 4 Cal.4th 43, 58.)
In People v. Fudge, supra, 7 Cal.4th at page 1103, the court explained, “Although completely excluding evidence of an accused’s defense theoretically could rise to this level, excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense. [Citation.] If the trial court misstepped, ‘[t]he trial court's ruling was an error of law merely; there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerning the defense.’ [Citation.] Accordingly, the proper standard of review is that announced in People v. Watson (1956) 46 Cal.2d 818, 836..., and not the stricter beyond-a-reasonable-doubt standard reserved for errors of constitutional dimension (Chapman v. California (1967) 386 U.S. 18, 24....”
As discussed above, Johnson’s testimony showed that he had an “innocent” reason to be in the area; it also had some tendency, albeit minimal, to show that he was elsewhere when the murder took place. However, the qualified exclusion of her testimony did not prevent, or even substantially impair, defendant’s ability to present other evidence supporting an alibi defense. Indeed, he was able to present a complete alibi defense. Moreover, the court’s ruling had no potential impact on his ability to challenge the prosecution’s case through cross-examination and presentation of his own witnesses, including his own expert.
This brings us to defendant’s claim that the court’s ruling forced him to testify as a condition for the admissibility of Johnson’s testimony and thereby violated his Fifth Amendment right not to testify.
The Fifth Amendment to the United States Constitution provides, in relevant part, “No person shall be... compelled in any criminal case to be a witness against himself....”
The court did not expressly say that defendant had to testify. Rather, the court ruled that defendant had to present some additional foundation evidence to establish the relevance of Johnson’s testimony. Although at that time, defense counsel announced that it was “almost a certainty” that defendant would testify, that comment indicates that the ultimate decision had not as yet been made. Indeed, the court’s ruling took place before trial. Thereafter the prosecution presented its case, which included strong evidence of motive, defendant’s highly incriminating statements to W. and R. before the incident and to Wiggins after the incident, indisputable evidence of that he was in the area at the time of the murder, and evidence that he had lied to police and had registered at a motel in a false name.
In our view, only defendant could have rebutted this evidence, explained his statements, and thereby negated, or at least diminished, their substantial incriminating probative value. We further note that the inferences from Johnson’s proposed testimony would have confirmed the cell phone evidence indicating defendant’s presence in the area but indicated that he had an “innocent” reason for being there. However, it did not necessarily preclude a finding that he went to both apartments. Moreover, because Johnson did not know for certain whether defendant went to her apartment, and if so, when he might have been there, any inference that he was at her apartment when the murder occurred was very weak.
Certainly the court’s pretrial ruling informed defendant’s final decision concerning whether to testify and face impeachment with his prior convictions. However, given the incriminating evidence outlined above that only defendant could directly rebut, defendant had other equally compelling reasons to testify besides ensuring the admission of Johnson’s testimony. Accordingly, we question whether defendant would have elected not to testify but for the court’s ruling. In our view, it is equally reasonable to conclude that when the prosecution finished presenting its case, defendant made a voluntary and strategic decision to rebut incriminating evidence and also present a complete and detailed alibi, a decision that was based on the totality of the circumstances and not just the court’s erroneous evidentiary ruling. Indeed, before defendant took the stand, defense counsel did not indicate that the court’s ruling was the only reason defendant was testifying. As the Attorney General aptly notes, “A defendant must weigh the danger of impeachment by introduction of prior convictions for every witness he calls for the defense. The fact that the witness may also happen to be the defendant makes the choice more difficult but a denial of due process does not emerge from the circumstances.” (See Chaffin v. Stynchcombie (1973) 412 U.S. 17, 31-36 [defendants are often forced to make difficult choices concerning whether to testify]; People v. Foreman (1985) 174 Cal.App.3d 175, 181 [same].) Under the circumstances, therefore, we do not find that the court’s erroneous evidentiary ruling unfairly forced defendant to choose between offering an alibi and avoiding impeachment with his prior convictions.
Defendant’s reliance on People v. Neal (2003) 31 Cal.4th 63 is misplaced. There, the court violated the defendant’s right not to testify by erroneously admitting two involuntary confessions. In finding the error prejudicial, the court noted that the confessions were the centerpiece of the prosecution and impelled the defendant to testify. (Id. at p. 87.)
Neal does not establish that a violation of defendant’s rights in this case. There, the violation was the admission of involuntary confessions and not the fact that after they were admitted, the defendant felt impelled to testified. Here, by contract, the error, if any, was simply the qualified exclusion of evidence that was relevant but had limited probative value.
Defendant’s also relies on State v. Gaines (1997) 937 P.2d 701, United States v. Bay (9th Cir. 1984) 762 F.2d 1314, and People v. Shields (1981) 81 A.D.2d 870. In each of these cases, the defendant sought to physically display himself to a prosecution eyewitness in an effort to undermine his or her identification; and in each instance, the court erroneously ruled that the defendant could display himself only if he personally testified subject to cross-examination. (State v. Gaines, supra, 937 P.2d at pp. 702-704; United States v. Bay, supra, 762 F.2d at pp. 1315-1316; People v. Shields, supra, 81 A.D.2d at pp. 870-871.)
Cases from lower federal courts are not binding on us. (People v. Burnett (2003) 110 Cal.App.4th 868, 882.) Nor are cases from other state jurisdictions. (Lebrilla v. Farmers Group, Inc. (2004) 119 Cal.App.4th 1070, 1077.) Moreover, these cases are distinguishable. In each, the court’s ruling expressly required the defendant to testify. Here, the court generally required defendant to offer additional foundation evidence of any kind. Moreover in those cases, the erroneous rulings impaired the defendants’ ability to cross-examine an eyewitness concerning his or her identification of the defendant as the perpetrator. Here, defendant did not seek to display himself to a witness; and the court’s ruling did not unfairly interfere with cross-examination of any witness, impair his effort to impeach an eyewitness’s identification, or otherwise implicate his right to confront the witnesses against him.
Finally, given defendant’s claim of prejudice, we would find any violation of defendant’s right not to testify harmless beyond a reasonable doubt. (See Chapman v. California, supra, 386 U.S. at p. 24.) As noted, defendant claims reversible prejudice because the prior convictions used to impeach him “produced an overly strong tendency [for jurors] to believe [he] committed the charged offenses for no reason beyond drug-induced rage (as the prosecutor claimed) and criminality.” According to defendant, “ ‘once prior convictions are introduced, the trial is, for all practical purposes, completed and the guilty outcome follows as a matter of formality.’ [Citation.]” (Quoting United States v. Burkhart (10th Cir. 1972) 458 F.2d 201, 204.)
First, we reject the view that admitting prior convictions invariably, inevitably, and unfairly, spells doom for a defendant. If that were the case, then prior convictions that had probative value would not properly be admissible to impeach credibility (Evid. Code, § 788; People v. Castro (1985) 38 Cal.3d 301, 313-317); and evidence of the conduct underlying prior convictions would not properly be admissible to establish material facts (Evid. Code, § 1101, subd. (b)) and, in some cases, a propensity to commit certain types of offenses (Evid. Code, §§ 1108, 1109).
We do not intend to suggest that such evidence can never be prejudicial, limiting instructions automatically eliminate any potential prejudice, or trial courts should not exercise care in determining whether its probative value outweighs any potentially prejudicial impact. (See Evid. Code, § 352; People v. Antick (1975) 15 Cal.3d 79, 98, disapproved on other grounds in People v. McCoy (2001) 25 Cal.4th 1111, 1123; People v. Bracamonte (1981) 119 Cal.App.3d 644, 650-651, disapproved on other grounds in People v. Calderon (1994) 9 Cal.4th 69, 79-80.)
Second, as noted above, the evidence of prior convictions lacked any inflammatory detail and was not itself so inflammatory that jurors could not be expected to follow the court’s limiting instruction. Moreover, the record does not suggest that they were unable to do so, and, therefore, we may presume that jurors confined their consideration of the evidence to its proper purpose.
Furthermore, the evidence of defendant’s prior convictions did not suggest that defendant committed the underlying offenses in a rage or that he was under the influence when he committed them. Thus, the evidence had no tendency to suggest that defendant murdered Garza in a “drug-induced rage.” Indeed, the evidence of defendant’s drug use was an essential component of his alibi defense.
In short, therefore, even assuming error, we would find beyond a reasonable doubt that the court’s ruling did not contribute to the verdict in that the jury did not disobey the court’s instruction and base its verdict on his past criminal conduct.
In light of our discussion of the court’s ruling, we also reject defendant’s claim that the court’s ruling resulted in gross unfairness at trial.
V. Instruction on Flight
Defendant contends the court erred in giving a flight instruction. He argues that the instruction was factually unwarranted because the evidence showed only that the perpetrator departed from the scene after the murder.
The court gave CALCRIM No. 372, the standard flight instruction. As given, the court stated, “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it’s up to you to decide the meaning and importance of that conduct. [¶] However, evidence that the defendant fled cannot prove guilt by itself.”
In People v. Bradford (1997) 14 Cal.4th 1005, the court explained that “ ‘[m]ere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt....” (Id. at p. 1055; e.g., People v. Pensinger (1991) 52 Cal.3d 1210, 1244 [merely leaving the scene is not flight supporting an inference of consciousness of guilt].) However, a flight instruction is proper “where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.” (People v. Ray (1996) 13 Cal.4th 313, 345; accord, People v. Bonilla (2007) 41 Cal.4th 313, 328.) “[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.” (People v. Crandell (1988) 46 Cal.3d 833, 869, overruled on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; accord, People v. Abilez (2007) 41 Cal.4th 472, 521-522.)
Here, a disguised man suddenly burst into Wiggins’s apartment, proceeded directly toward her and Garza, shot them both, and immediately left. Kimberly White, a neighbor, testified that after the shooting, she heard someone running away. Mary Randall, another neighbor, testified that sometime after hearing loud kicks, she heard a car screeching away. This evidence supports an inference that the perpetrator’s departure was urgent and swift. The EZ 8 Motel records further reveal that that defendant stayed away from his home from the night of May 4, and he had his motel room until May 7.
The manner of defendant’s departure from the scene and his return to a motel in Newark rather than his sister’s home where he lived reasonably support an inference that defendant sought to avoid being observed and arrested, that is, a consciousness of guilt. (E.g., People v. Turner (1990) 50 Cal.3d 668, 695 [substantial evidence of flight existed where physical evidence suggested the defendant’s departure from scene occurred “with particular haste”]; People v. Carter, supra, 36 Cal.4th 1114, 1182 [flight instruction proper where defendant left California for Las Vegas a few days after the crimes]; People v. Smithey (1999) 20 Cal.4th 936, 982 [flight instruction proper where “defendant drove to another town instead of summoning help”]; People v. Bradford, supra, 14 Cal.4th at p. 1055 [flight instruction proper where defendant left the apartment where he killed the victim, went to another apartment, packed his belongings and asked for a ride out of town].) Therefore, it was not error to instruct on flight.
VI. Limiting Instruction on Prior Convictions
Defendant contends the court erred in failing to instruct jurors that the evidence of his prior convictions may not be considered evidence of a bad character or criminal propensity.
The California Supreme Court has long held that “in general, the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct.” (People v. Collie (1981) 30 Cal.3d 43, 64, fn. omitted.)
Nevertheless, as noted, the court here instructed the jurors that they could consider the evidence of prior convictions “only in evaluating the witness’s credibility.” (Italics added.) This instruction is proper and accurate. As previously noted, absent persuasive evidence to the contrary, we presume that jurors understand and follow instructions limiting the use of prior convictions. Moreover, we note that the prosecutor did not argue, or suggest, that defendant’s prior convictions showed that he was a bad person or had a propensity for violence. He argued only that the jury could consider his priors in deciding whether he was lying. Defense counsel, on the other hand, warned that a main reason that innocent defendants are convicted is that they have criminal records. Defense counsel emphasized, however, that the jurors must presume that defendant was innocent. In response, the prosecutor argued that it was entirely proper for the jurors to consider defendant’s prior convictions “in evaluating whether this defendant is telling the truth.”
Given the court’s simple, direct, and unequivocal direction limiting prior convictions to the determination of credibility and the arguments of counsel, we reject defendant’s claim that the court implicitly invited or permitted jurors to infer from defendant’s prior convictions that he had a bad character or propensity for violence. Simply put, we do not find a reasonable likelihood (or even a reasonable possibility) that jurors might have thought they could consider the prior convictions to show bad character or propensity. (See Estelle v. McGuire (1991) 502 U.S. 62, 72; Boyde v. California (1990) 494 U.S. 370, 378-381; People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277.) Under the circumstances, therefore, we conclude that the trial court did not err in failing to amplify sua sponte its limiting instruction. (E.g., People v. Hinton (2006) 37 Cal.4th 839, 875 [rejecting similar claim].)
Defendant’s reliance on People v. Brown (1993) 17 Cal.App.4th 1389 is misplaced. There, the court erred in (1) admitting statements to a police officer in which the defendant admitted uncharged acts of sexual molestation and (2) instructing jurors they could consider the evidence to prove identity and bolster the credibility of the police officer. The court also allowed the victims of uncharged acts to testify about the molestation. On appeal, the court noted that the uncharged acts were similar to the charged offenses. The court found an undue risk that the jurors would consider the uncharged acts as evidence of bad character even though the court gave a limiting instruction prohibiting such use. (Id. at pp. 1395-1398.)
Brown is distinguishable. Defendant’s prior convictions were not erroneously admitted for the dubious purpose of bolstering the credibility of a prosecution witness; they were properly admitted to impeach his credibility. (E.g., People v. Johnson (1991) 233 Cal.App.3d 425, 459 [in prosecution for murder, prior murder properly admitted for impeachment]; People v. Muldrow (1988) 202 Cal.App.3d 636, 646-647 [proper to admit six priors, three identical to charged offense]; People v. Stewart (1985) 171 Cal.App.3d 59, 65-66 [no abuse of discretion in ruling three prior robbery convictions admissible to impeach robbery defendant].) Moreover, the evidence was highly probative of defendant’s credibility, and his credibility was a crucial issue. There is nothing unusually inflammatory about defendant’s priors and nothing extraordinary about the facts of the case to convince us that the otherwise proper and appropriate admission of priors for impeachment nevertheless posed an undue risk that jurors would disregard the court’s limiting instruction.
VII. Instruction on Voluntary Intoxication
Defendant contends that the court’s instruction on voluntary intoxication was inadequate. We disagree.
The court gave CALCRIM No. 625, the standard instruction on voluntary intoxication. As given the instruction stated, “You may consider evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by willingly using any intoxicating drug, drink or other substance knowing that it could produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] You maynot consider evidence of voluntary intoxication for any other purpose.” (Italics added.)
Defendant claims that the instruction is flawed because it advises jurors only that they “may” consider all of the evidence concerning intoxication in determining whether he had the requisite mental states and does not instruct that they must consider it. Defendant’s reading of the instruction is strained.
The use of “may” in the instruction does not reasonably suggest that jurors are free to decide whether they want to consider the evidence of voluntary intoxication. “ ‘May’ ” is a common grammatical term encompassing multiple meanings, including an expression of ‘ability’ or ‘power’ as well as ‘permission.’ [Citation.]” (People v. Ledesma (1997) 16 Cal.4th 90, 95.) In the context of the entire instruction, the use of “may” together with “only” conveys a restricted permission or authorization—i.e., when you consider the evidence, you are permitted to do so only for the specific purpose of deciding whether defendant possessed the requisite mental state and for no other purpose. (See Webster’s 3d New Internat. Dict. (1993) p. 1396 [“may” connotes permission].) Indeed, substituting “must” for “may” in CALCRIM No. 625 would render the instruction awkward and not change its meaning.
Furthermore, in closing argument to the jury, neither the prosecutor nor defense counsel suggested that jurors could disregard the evidence or need not consider it. On the contrary, both parties urged jurors to consider it. Moreover, the instruction expressly calls the jury’s attention to the evidence and the issues to which it was relevant. (See People v. Castillo (1997) 16 Cal.4th 1009, 1017.) Finally, the court expressly instructed the jurors that in determining whether the prosecution proved its case beyond a reasonable doubt, they “must” consider all of the evidence. (See CALCRIM No. 220.)
Under the circumstances, we find no reasonable likelihood that jurors misunderstood the instruction to permit them to ignore the evidence of voluntary intoxication. (See Estelle v. McGuire, supra, 502 U.S. at p. 72; Boyde v. California, supra, 494 U.S. at pp. 378-381; People v. Dieguez, supra, 89 Cal.App.4th at pp. 276-277.)
Defendant’s reliance on People v. Stevenson (1978) 79 Cal.App.3d 976 is misplaced. There, the reviewing court concluded that the trial court had erroneously limited consideration of evidence of voluntary intoxication to a generalized mental state rather than each particular mental state that intoxication could negate. In dicta for purposes of a retrial, the court also opined that a proper instruction should advise jurors that they must consider evidence of intoxication rather than that they should. (Id. at p. 987.)
Stevenson did not analyze or involve a limiting instruction similar to CALCRIM No. 625, and therefore, the Stevenson dicta does not convince us that CALCRIM No. 625 is flawed or inadequate.
VIII. Instruction on Reasonable Doubt
Defendant contends that the court’s definition of reasonable doubt and other instructions on considering the evidence were flawed and denied him due process, a fair trial, and a right to a proper determination of the issues.
Defendant notes that the court gave CALCRIM No. 220, the standard instruction. As given, the court stated, “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
Defendant also notes other instructions telling jurors that they must decide the facts based only on the evidence presented to you in this trial, which included the testimony, exhibits, and stipulations. (See CALCRIM Nos. 200, 222, 223, 3550.)
Noting that the instructions required jurors to decide the facts based only on the evidence presented at trial, defendant argues that the instructions erroneously prevented jurors from basing a reasonable doubt on gaps and absences in the evidence. Defendant further claims that the phrase “abiding conviction” is archaic and erroneously conveyed “an insufficient standard of proof akin to clear and convincing evidence and going only to jurors’ duration of belief in guilt, not their degree of certainty.”
This court has previously analyzed and rejected identical claims. (People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119.) So have numerous other courts. (People v. Zavala (2008) 168 Cal.App.4th 772, 780-781 [Fifth Dist.]; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1508-1510 [Fourth Dist., Div. 1]; People v. Zepeda (2008) 167 Cal.App.4th 25, 28 [Third Dist.]; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238 [Second Dist., Div. 2]; People v. Ramos (2008) 163 Cal.App.4th 1082, 1087-1090 [First. Dist., Div. 1].)
Here, it is enough to say that we again reject these claims.
IX. Concurrent Term for Possession of a Firearm
Defendant contends that the imposition of a concurrent term for possession of a firearm (Pen. Code, § 12021, subd. (a)) violated the proscription against multiple punishment in Penal Code section 654 (Section 654).
“Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct.” (People v. Deloza (1998) 18 Cal.4th 585, 591.) The purpose of the statute is “to prevent multiple punishment for a single act or omission, even though that act or omission violates more than one statute and thus constitutes more than one crime. Although the distinct crimes may be charged in separate counts and may result in multiple verdicts of guilt, the trial court may impose sentence for only one offense—the one carrying the highest punishment.” (People v. Liu (1996) 46 Cal.App.4th 1119, 1134.) The protection of the statute also extends to cases in which a defendant engages in an indivisible course of conduct comprising different acts punishable under separate statutes. (People v. Harrison (1989) 48 Cal.3d 321, 335.) Thus, “ ‘[i]f all of the offenses were merely incidental to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once.’ ” (People v. Palmore (2000) 79 Cal.App.4th 1290, 1297.) Conversely, multiple punishment is permissible notwithstanding section 654 if the defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other. (People v. Braz (1997) 57 Cal.App.4th 1, 10.)
“A defendant’s criminal objective is ‘determined from all the circumstances and is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support it.’ [Citation.]” (People v. Braz, supra, 57 Cal.App.4th at p. 10; see People v. Hicks (1993) 6 Cal.4th 784, 789.) We view the evidence in a light most favorable to the court’s factual determination and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. McGuire (1993) 14 Cal.App.4th 687, 698.)
In People v. Venegas (1970) 10 Cal.App.3d 814, the defendant shot a friend in a bar. No witnesses saw where the gun came from, and the gun was found on the floor after the shooting. (Id. at p. 818.) The court stated, “Whether a violation of section 12021, forbidding persons convicted of felonies from possessing firearms concealable upon the person, constitutes a divisible transaction from the offense in which he employs the weapon depends upon the facts and evidence of each individual case. [Citation.] Thus where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. [Citations.] On the other hand, where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of the firearm has been held to be improper where it is the lesser offense.” (Id. at p. 821, italics added.) Since the evidence in that case showed possession only at the time of the shooting, the court held that imposition of a sentence for both assault and possession of a firearm was multiple punishment prohibited by section 654. (Ibid.)
In People v. Bradford (1976) 17 Cal.3d 8, the defendant wrested a gun from an officer and used it to shoot at him. (Id. at p. 13.) Quoting People v. Venegas, supra, 10 Cal.App.3d 814, the Bradford court concluded that because the defendant’s possession of the officer’s revolver was not antecedent and separate from his use of the revolver in assaulting the officer, section 654 barred punishment for both possession of a firearm and assault with it. (People v. Bradford, supra, 17 Cal.3d at pp. 22-23.)
In People v. Ratcliff (1990) 223 Cal.App.3d 1401, the defendant used a firearm to commit two robberies. He was arrested within 30 minutes and still had the gun. The court opined that “[f]rom [People v. Bradford, supra, 17 Cal.3d 8 and People v. Venegas, supra, 10 Cal.App.3d 814], we distill the principle that if the evidence demonstrates at most that fortuitous circumstances put the firearm in the defendant’s hand only at the instant of committing another offense, section 654 will bar a separate punishment for the possession of the weapon by an ex-felon.” (Id. at p. 1412.) The court upheld multiple punishment, finding, “A justifiable inference from this evidence is that defendant’s possession of the weapon was not merely simultaneous with the robberies, but continued before, during and after those crimes. [Citation.]” (Id. at p. 1413.)
In People v. Jones (2002) 103 Cal.App.4th 1139, the defendant and friends stopped at a house to speak with a resident, left, and drove by again, at which time the defendant fired shots into the house. (Id. at pp. 1141-1142.) On these facts that court upheld multiple punishment for possession and firing into a dwelling because “the evidence shows that the defendant arrived at the scene of his or her primary crime already in possession of the firearm.” (Id. at p. 1145.) The defendant’s subsequent “use of the weapon after completion of the crime of possession of the firearm thus comprised a ‘separate and distinct transaction undertaken with an additional intent which necessarily is something more than the mere intent to possess the proscribed weapon.’ ” (Id. at p. 1147; see also, e.g., People v. Killman (1975) 51 Cal.App.3d 951 [multiple punishment where defendant bought gun and took target practice months before robbery]; People v. Garfield (1979) 92 Cal.App.3d 475 [multiple punishment where defendant had gun on him days after burglary].)
Here, it is reasonable to infer that defendant obtained the gun and thus completed the crime of unlawful possession of a firearm before going to Wiggins’s apartment, where he then used it to commit the assault and murder. Under the circumstances, multiple punishment for possession and the assault and murder did not violate section 654.
X. Disposition
The judgment is affirmed.
WE CONCUR: PREMO, J., ELIA, J.
By separate order, we deny the petition for a writ of habeas corpus.