Opinion
F053972.
3-24-2009
THE PEOPLE, Plaintiff and Respondent, v. ANDRE CORNELL BALL, Defendant and Appellant.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
INTRODUCTION
Appellant Andre Ball fatally shot Deondre Marzette at the Valley Plaza Shopping Center in Bakersfield. It was undisputed that the shooting involved a conflict between two rival gangs, appellants East Side Crips and Marzettes West Side Crips. Appellant was convicted of first degree premeditated murder (Pen. Code, § 187), with the special circumstance that the murder was intentional and committed while appellant was an active participant in a criminal street gang to further the gangs activities (Pen. Code, § 190.2, subd. (a)(22)). He was sentenced to life in prison without possibility of parole.
On appeal, appellant contends defense counsel was prejudicially ineffective during closing argument for conceding he was the gunman and misstating a witnesss testimony, as to whether appellant and the East Side Crips went to the mall to "fight" or "kill" the West Side Crips. Appellant contends the court improperly permitted the prosecution to introduce evidence about a three-way telephone call placed from jail by an inmate to appellants mother and an unknown female, purportedly on appellants behalf, directing the female to fabricate testimony about the shooting; appellant argues there was insufficient foundation to connect him to the call, and the conversation itself constituted multiple levels of inadmissible hearsay. Finally, appellant argues the instructions on reasonable and imperfect self-defense were insufficient. We will affirm.
FACTS
On December 27, 2005, Deondre Marzette was at the mall with his brother, Justin McCowan, and their friends, Terry Brown, Marcus Stokes, Alex Benford, Cory West, Cory Anthony, and Edward Webber. Marzette, his brother, and their friends were either members or associates of the West Side Crips.
The mall was neutral turf among Bakersfields gangs, but there were frequent fights and altercations when rival gang members ran into each other. Cory Anthony arrived at the mall that day with a .38 caliber revolver, which was loaded with a single bullet since the weapon did not have a chamber, and he planned to flash it if they were confronted by any rival gang members. Anthony testified that when they were still in the malls parking lot, Terry Brown showed Anthony that he was carrying a gun, but Anthony was not sure if Brown took the gun into the mall.
Wright walks by the West Side Crips
Marzette, Brown, Anthony, and the other West Side Crips were hanging out at the mall when DShawna Wright walked by with her girlfriends. Wright was an associate of the East Side Crips, the rival gang of the West Side Crips.
As Wright and her friends walked by, Brown called her an "egg ho" or an "egg shell whore," derogatory terms used by the West Side Crips to describe the East Side Crips. Anthony repeated the insult.
Wright asked Brown if he was talking to her and Brown said yes. Wright threw an East Side hand sign at the West Side Crips. Wright was very upset and told the West Siders, "`Thats all right, I got something for you all, you all just wait, I got something for you all." Brown and the other West Side Crips laughed and did not take her seriously.
Wright testified she did not know the name of the West Side Crip who insulted her, but that same man flipped up his shirt and "showed" that he had a gun in his waistband. The West Side Crips shouted additional insults as Wright and her girlfriends walked away.
Wright was impeached with her failure to mention that she saw a gun in any of her prior interviews or her preliminary hearing testimony.
Marzette left his West Side friends and met his pregnant girlfriend in the mall. They were shopping for maternity clothes when Wright and her girlfriends passed them. Wright said to Marzette, "`Aint he from the weak side," a derogatory phrase used by the East Side Crips towards the West Side Crips. Marzette did not say anything. He told his girlfriend not to do anything because he was worried that Wright might hit her. Marzette gave his girlfriend some money to buy clothes, said he would meet her later at his house, and left to rejoin his West Side friends in the main portion of the mall.
Wright calls the East Side Crips
Wright testified she was very upset after her encounter with the West Side Crips. Wright thought the West Sider who insulted her was someone she had confronted at the fairgrounds a few months earlier, and who left threatening messages on her voice mail.
At that time, Wright had been using a borrowed cell phone but she did not have it at the mall. She approached another shopper, Angel Longoria, and offered to pay for the use of his cell phone. Longoria did not know Wright, but he charged her $5 for the use of his cell phone.
The police later reviewed phone records which showed that at 5:36 p.m., Wright used Longorias cell phone to call the cell phone she had been using. Wright testified that she spoke to her brother, Tremell Edwards, a member of the East Side Crips. Wright told Edwards that she had been insulted, the incident involved "the same dude" who was involved in the fairgrounds incident, and "he might have a gun." Wright testified that she asked Edwards to come and check on her, and Edwards told her to go home.
Wright testified that she called her own cell phone, but she actually called a phone which was owned by Valerie Gill.
Longoria testified Wright kept referring to "Dre" during the cell phone conversation. Longoria heard Wright tell the other party that she had been called "`an egg shell," by the "`water slides," a derogatory term for the West Side Crips. Longoria testified that Wright was angry and told the other party to the call: "`You guys need to get your guns and come here now." Wright hung up, returned the cell phone to Longoria, and left the mall.
Appellants nickname or moniker was "Dre."
Robertson borrows a car
Brittany Rogers was Tobias Robertsons cousin and appellants girlfriend. Rogers was at Robertsons home when he returned from work and asked to borrow her car. Robertson said his own car had expired tags, he did not want to get stopped, and he was going to pick up someone. Rogers gave her car keys to Robertson and walked outside with him. Appellant, Tremell Edwards, and Denzel Washington were waiting outside.
Appellant, Edwards, and Washington were all members of the East Side Crips. In October 2005, appellant was present when his cousin, Quinn Howard, who was also an East Side Crip, was shot and killed during a drive-by shooting performed by a member of the West Side Crips. Appellant was very upset and angry about Howards murder.
Robertson was not recognized as a member of the East Side Crips until his participation in this case, and he claimed East Side when he was booked in this case.
Appellant, Robertson, Edwards, and Washington drove to the mall in Rogerss car. Edwards testified they went to the mall because either appellant or Washington said that Wright had been threatened, and Edwards wanted to look for his sister. Washington testified that someone got a telephone call about something that happened at the mall, Edwards said they needed to go to the mall, and it was "[e]verybodys idea" to go. Washington explained that it was a matter of great disrespect for a West Sider to call a female East Sider an "egg shell." Washington testified they were going to the mall to "fight" some West Siders.
As we will discuss in issue I, post, defense counsel misstated Washingtons testimony in closing argument, that they went to the mall to "kill" East Siders.
The homicide
Washington testified that he entered the mall with appellant, Robertson, and Edwards, and they looked for the West Siders. Washington was prepared for a fistfight, he did not have a weapon, and he did not see anyone in his group with a weapon.
Washington and Edwards testified they found the West Side Crips in the mall and the two groups faced each other. The East Side Crips immediately started shouting derogatory phrases and the West Side Crips responded accordingly. Washington thought there were 10 or 12 West Side Crips.
Washington testified that one of the West Siders stepped forward, shouted derogatory phrases about the East Siders, raised his hands and threw gang signs, and appeared ready to fight. Washington did not see any of the West Side Crips with a weapon. Edwards testified that one of the West Side Crips stepped forward and moved his hand towards his waistband. Edwards felt threatened but he did not see a gun.
Washington testified that appellant pulled a gun and shot one of the West Side Crips before that person got close to Washington. Washington did not know appellant had a gun and was surprised that he shot the West Sider.
Cory Anthony of the West Side Crips testified the East Side Crips arrived at the mall and confronted them. Anthony never flashed the gun he was carrying, and he never saw Terry Brown flash his gun. Anthony testified that Deondre Marzette was standing next to Brown when he heard a shot fired. Marzette was hit and fell down. Anthony ran to Marzette and tried to help him, and then got angry and started to challenge everyone in the area. When the police arrived, they pulled Anthony away, found him in possession of the .38 caliber revolver, and arrested him.
Justin McCowan and Alex Benford had walked away from their West Side friends just before the shot was fired. McCowan heard arguing, looked back to his West Side group, and saw Brown and the other West Side Crips exchanging words with another group of boys. The two groups were exchanging gang insults when McCowan heard a gunshot. McGowan ran back and found his brother, Marzette, lying on the floor.
Marzette was shot once in the chest and died from the wound. The bullet entered the front of the chest, just left of the midline and almost in direct proximity of his heart. The bullet perforated his heart and left lung, passed through his body, and caused massive internal bleeding. The bullet lodged into a store wall behind where Marzette had been standing. The nature of the entry wound indicated that the shot was not fired at close range. A single .40 caliber shell casing was recovered from the scene.
Appellant, Washington, Robertson, and Edwards ran out of the mall after Marzette was shot. They got back into Rogerss car and everyone was scared about what happened. Edwards testified he did not see who shot the victim, but appellant later told Edwards that he shot the victim because he was scared. Robertson returned the car keys to Rogers, and he acted normal and was not nervous. Rogers saw appellant that night, and he did not say anything about what happened when they used her car.
The mall witnesses
The mall was packed with holiday shoppers that day, and numerous people saw and heard what transpired when appellant and his associates confronted the West Side Crips and Marzette was shot. Their testimony differed from the trial testimony given by Edwards and Washington.
Arthur Kopp, a correctional officer with special training in prison gang control, was shopping with his family when he saw two groups of African-American teenagers confront each other. The two groups seemed to recognize each other, walked from opposite locations to face each other, and exchanged curses. Both groups were dressed in black, and they seemed angry as they yelled, cursed, and shouted at each other.
Kopp testified that one man from each group stepped forward, and identified them as appellant and Marzette. Appellant was with three or four people, and Marzette was with four or five people. Marzette "had his chest out and his hands at his side and he had closed fists." Kopp could only see Marzettes right hand and not his left hand. Appellant was wearing a black hooded sweatshirt and shorts. Appellants hands were at his sides, open and unclenched. Kopp testified that both appellant and Marzette appeared aggressive as they walked out of their respective groups and approached each other. The two groups continued to shout insults and throw gang signs as appellant and Marzette stepped forward.
Based on his training and experience, Kopp believed Marzettes fists were closed because he was getting ready for a fistfight, whereas appellants hands were open because either he didnt realize he was about to be in a fistfight, or "he is going to pull a weapon." Kopp testified:
"Typically, if someone is approaching someone with a closed fist, they are going to punch them, swing at them. If someone has an open hand, its been my experience it means he is going to go for a weapon or he is ignorant as to whats going on."
Kopp testified that as appellant and Marzette walked toward each other, appellant lifted up his shirt with his left hand, reached into his waistband with his right hand, and "in one swift motion" pulled out a semi-automatic handgun and fired one shot into Marzettes chest, near his heart. Appellant stepped forward in an aggressive stance, pulled the gun, and fired in "a lightening quick movement." Appellant did not hesitate or wave around the gun, and the entire process took just seconds. "It was just like one, two, three, bam." Appellant appeared angry and looked right at Marzette as he fired. He fully extended his right arm and held the gun sideways, in "movie gangster style."
During the investigation, the police obtained appellants photograph from Chanice Howard. The photograph showed appellant throwing an East Side gang sign, and wearing a T-Shirt which depicted the movie gangster character "Scar face."
Kopp testified that appellant was standing about three to four feet from Marzette when he fired the gun, and Marzette was not close enough to punch him. Kopp did not see Marzette reach towards his body, and Marzettes hands still were at his sides just before the shot was fired. Kopp did not see anyone else with a gun, and never saw Marzette make any movements toward his body consistent with reaching for a gun.
Kopp testified Marzette seemed surprised when appellant pulled the gun, and he did not have time to turn or run away. After appellant fired the single shot, Marzette immediately fell down and appellant appeared scared. Appellant briefly looked around and realized his group had already scattered, and then he ran away while still holding the gun.
Barbara Newkirk, another mall patron, identified appellant as the gunman, and watched as he used a "very fluid" motion and pulled a semi-automatic handgun from his hip with his right hand. Newkirk testified that appellant appeared to move forward, he fully extended his right arm toward the victim with his palm sideways, and he fired one shot. Newkirk thought appellant held the gun sideways like she had seen in the movies. Newkirk did not see anyone else with a gun.
Newkirks son heard loud yelling between the two groups just before the shot was fired and he did not see anyone else with a gun. Melissa Reynoso, a store employee, saw the gunman use one motion to reach into his waistband, pull out a gun with his right hand, extend his arm, and fire one shot.
Monica Martinez was shopping when she heard two groups arguing, looked toward the groups, and thought two people were going to fight. She watched as the gunman raised his arm, moved forward, and fired one shot directly at the victims body. She did not see anyone else with a gun.
Delane Morin was also shopping when she heard the loud argument, thought there was going to be a physical confrontation, and heard the gunshot. Morin had worked with at-risk youths for several years and was familiar with gang terminology. After the shot was fired, she heard someone yell, "`My G," which was like "saying my brother . . . my comrade . . . its a term of endearment in a way."
The videotapes
Bakersfield Police Officer Jerry Wisenhunt and Detective Martin Heredia repeatedly reviewed videotapes from the malls multiple surveillance cameras, and recognized appellant as the gunman based on their prior contacts with him. The videotapes clearly depicted the actions of appellant and his three associates before, during, and after the shooting.
The videotapes showed that at 6:14 p.m., four people entered the mall using the doors near a restaurant. Appellant was the first person to enter, and his three companions followed him. They walked through the mall, and then appellant stepped away from his group. Appellant fully extended his right arm away from the body, in a slightly downward motion, he was holding a dark object, and a muzzle flash was seen. At 6:18 p.m., appellant and his three companions ran out of the mall, and left through the same set of doors. They had been in the mall for barely four minutes.
There were cell phone records which tracked DShawna Wrights activities before and after the shooting. At 5:36 p.m., Wright used Longorias cell phone to call her brother, Tremell Edwards, and she left the mall. At 5:43 p.m. and 5:44 p.m., Wright had regained possession of her cell phone and used it to call Crystal Merino, a palm reader she had visited the previous day. At 6:14 p.m., appellant, Edwards, Robertson, and Washington entered the mall, appellant shot Marzette, and appellant and his associates ran out of the mall at 6:18 p.m. At 6:46 p.m., Wright again called Merino and was upset because things were not going as well as Merino had predicted during the palm reading, and wanted to know when her luck would change. Merino assured Wright that good things were going to happen for her.
The police distributed still photographs of the gunman from the malls videotapes, which were shown on the local television news. The day after the homicide, Brittany Rogers was watching television at appellants house, and the photographs of the gunman were shown on the news. Rogers immediately recognized appellant as the gunman, realized the men who had borrowed her car were involved in the shooting, and became very upset. Appellant was in another room, and Rogers told him that she was going to leave immediately. Rogers was later interviewed by the police and identified appellant as the gunman.
Appellants arrest
On January 20, 2006, appellant was arrested at his fathers house in Garland, Texas. Appellant had two bags with bus tags, which showed that he traveled from Fresno to Texas on January 9, 2006. Appellants possessions included a belt buckle engraved with an "E," representing the East Side Crips. He also had a funeral memorial card for his cousin, Quinn Howard, who had been killed by a West Side Crip in October 2005; the letters "SG" were written on the card. "SG" meant "Spoonie G," which was a subset of the East Side Crips. Appellant also had a letter which referred to him as "Dre."
One of the mall witnesses, Delane Morin, heard someone yell, "`My G," after Marzette was shot. Morin was familiar with gang terminology, and she testified the phrase was like "saying my brother . . . my comrade . . . its a term of endearment in a way."
Appellants nickname or moniker was "Dre." Angel Longoria heard Wright repeatedly refer to "Dre" when she used his cell phone to call for help after she was insulted by the West Side Crips.
Appellant in custody
Appellant was brought back to Kern County for trial, and Brittany Rogers visited him in jail several times. Rogers testified that during one visit, appellant asked her not to testify against him and she agreed.
Appellant was in custody at the Lerdo facility prior to trial. On October 20, 2006, an inmate called appellants mother from the Lerdo facility. The call was tape-recorded and the transcript introduced into evidence. Appellant did not make this call. The inmate who made the call identified himself as "Pete," but an officer recognized his voice as Jaime Avila, a member of the East Side Crips, based on the officers personal contacts with Avila.
As we will address in issue II, post, appellant contends the court erroneously admitted evidence of the Lerdo telephone call.
Avila told appellants mother that he was calling for "your boy," who wanted her to place a three-way call with "Vickie," and she complied. Avila had a lengthy conversation with "Vickie," said he was calling "for Junior," and instructed her to testify that she was at the mall that day, the other guys showed their guns, and she saw the victim reach for his waist just before the shot was fired. Vickie had not been at the mall and kept asking Avila what she was supposed to say about the incident, and hesitated about testifying.
During Avilas conversation with "Vickie," he paused several times to shout to someone who was at the jail with him but not on the line, and Avila served as a conduit as he passed along questions and answers to Vickie. At one point, Avila shouted to this person:
"She says shes gonna think about it. She says you know you cant go into details but shes gonna think about it and let you know if shes gonna do it. Huh? Shes gonna think about it. Thinking about on the, getting on, you know, the witness. He, he said aint no thinking about it. Just come through for your boy."
Avila continued to tell Vickie that "[h]e" wanted her to testify this way. Avila again paused and listened to the third party, who was shouting at him, and relayed the message:
"Call who? Oh he, he wants you to call his investigator when you get off the phone. She got a number? She got a number? You suppose to have all that stuff ready man, damn."
This call was made from one of two payphones in a particular dayroom at Lerdo. Appellants cell was located 52 feet away from one payphone, and 48 feet away from the other. There was a food slot in appellants cell door from which appellant could have communicated with someone who was using either of the payphones in the dayroom. A correctional officer testified it was common for inmates to yell at each other through the food slot.
The charges
Washington pleaded guilty to being an accessory to murder and agreed to testify for the prosecution. Edwards also entered into a plea agreement in exchange for his testimony. Robertson pleaded no contest to assault with a firearm and accessory to murder but refused to testify because his appellate rights had not expired.
After a lengthy jury trial, appellant was convicted of count I, first degree premeditated murder (Pen. Code, § 187), and the jury found true the special circumstance that the murder was intentional and committed while appellant was an active participant in a criminal street gang to further the gangs activities (Pen. Code, § 190.2, subd. (a)(22)), and the special allegations that appellant intentionally and personally discharged a firearm which proximately caused death or great bodily injury (Pen. Code, § 12022.53, subd. (d)), and he committed the offense for the benefit of a criminal street gang (Pen. Code, § 186.22, subd. (b)(1)). The court denied probation and sentenced appellant to life in prison without possibility of parole, plus a consecutive term of 25 years to life for the section 12022.53, subdivision (d) enhancement; the court ordered the gang enhancement stricken for sentencing purposes only.
ISSUES
I. Ineffective assistance; closing argument.
Appellant contends his court-appointed defense counsel, Charles Soria, was prejudicially ineffective during closing argument because his summation was "unfocused" and he "was not prepared for argument—he was coming up with it as he went." Appellant complains that defense counsel "conceded guilt," merely "`hoped" the jury would return a verdict of voluntary manslaughter or second degree murder, and his assertions about reasonable doubt were "not well-argued."
Appellant further contends that he was prejudiced by defense counsels closing argument because counsel misstated Denzel Washingtons testimony—that Washington said the East Side Crips went to the mall to "kill" West Siders, whereas Washington actually testified they went to "fight" West Siders. Appellant asserts the misstatement amounted to a concession of first degree murder and the gang special circumstance, and requires reversal of his conviction.
We will review both the prosecution and defense closing arguments and find appellants contentions are without merit.
A. Background.
Appellants trial began on August 13, 2007, with jury selection, and closing arguments given on August 24, 2007. In his closing argument, the prosecutor cited the evidence in support of first degree premeditated murder, and how the videotapes confirmed the testimony of the shoppers who described appellants fluid motion of pulling the gun, aiming directly at Marzettes body, and firing without any hesitation. The prosecutor argued that appellant wanted vengeance from the West Side Crips for killing his cousin, Quinn Howard, and the mall incident with DShawna Wright presented him with that opportunity. The prosecutor argued there was no evidence of fear or provocation, appellant went to the mall solely with the intent to kill, he shot Marzette for retaliation and gang bravado, and he was guilty of premeditated first degree murder.
In his closing argument, defense counsel argued the evidence showed that Marzette was the aggressor because he walked more than halfway the distance between the two groups and confronted the East Side Crips. Defense counsel chided the prosecutor for failing to address the evidence that the West Side Crips were armed, since both Anthony and Brown had weapons, and Anthony admitted he intended to flash his gun if confronted by any rivals at the mall. "[T]he prosecutor does not want you to even consider the possibility that this group up here was armed."
Defense counsel noted that when DShawna Wright called the East Side Crips for help, she told them to bring their guns because the other side had guns.
"[T]he issue is is [appellant] being proactive as [the prosecutor] is insisting, insisting, insisting and insisting or is he being reactive? Is he reacting to something he sees?"
Defense counsel acknowledged the videotapes showed appellant step forward, "obviously towards Marzette. Is he seeing something? Is he reacting to something?" Counsel cited Tremell Edwards testimony that he thought he saw someone in the other group go for their jacket, and Anthonys testimony that he saw Marzette standing next to Brown just before he heard the gunshot.
Edwards testified that one of the West Side Crips stepped forward and moved his hand towards his waistband just before the shot was fired.
"If that is what [appellant] is reacting to, I think you have to consider the possibility of voluntary manslaughter. I think you have to consider in imperfect self-defense. We are not going to ask for not guilty because thats not a fair deal. I think you have to decide—you are going to decide—three choices you have to decide. You are going to decide first degree, voluntary, second degree. You have to decide what liability you are going to hold [appellant] to. And [the prosecutor] cannot let you think—allow you to believe that there is a weapon present on the other side." (Italics added.)
Defense counsel acknowledged that Arthur Kopp, the correctional officer, gave a "good report" of what he saw, but Kopp admitted he only saw Marzettes clenched right hand and he could not see Marzettes left hand. Kopp also described appellant as looking scared but "what is he scared of? Hes got the drop on the other four. What is he scared of? He shot somebody. Not if he is a hard core gang member. What is he scared of? Has he seen possibly Cory Anthony and Terry Browns gun."
Defense counsel also disputed the prosecutors claim that appellant came to the mall to retaliate against the West Side Crips, since it was reasonable to assume that appellants gun had more than one round, he only fired once, and he could have shot the other West Side Crips who were standing with Marzette.
"Again, the issue comes down to is he being proactive as the prosecution is insisting or is he being reactive? If he is being reactive, then you have to consider and I believe you have to consider and you have to decide that if he is being reactive, then you would have to decide, we hope, voluntary manslaughter, we hope second degree, but its not first degree. And its reasonably reactive. We are not asking for not guilty because I dont think thats reasonable. I think the instruction pretty much—that we have imperfect self-defense."
Defense counsel turned to Denzel Washingtons testimony and argued he "[o]bviously" wasnt telling the truth about the shooting, based on his claim that he was standing in front of appellant compared to how he was depicted in the videotapes.
"I dont know why he doesnt say what the truth [is]. I think [Washington] just doesnt want to say he saw the gun. But I will accept that they were going there to kill West Siders. The key is what occurred at the incident. What was this other group—we cant see what they are doing. We do know at least one of them had a facsimile of a gun, and he [Cory Anthony] also volunteers for the second one Terry Brown at least had a gun in the parking lot. Doesnt know what happened to the gun. He is not going to say—certainly not going to say that Terry Brown had a gun inside. And also if you listen to his testimony, Terry Brown runs off this way and with him runs the gun. So there is no way we can know for sure, but I think you have to think about that, what is [appellant], who is looking scared, reacting to when he runs. If he is looking scared, which I believe I will accept what Mr. Kopp says about that. I dont know about this man of surprise. I dont know if he had enough time to be surprised.. . ." (Italics added.)
As we will discuss post, appellant cites this passage as an example of defense counsels ineffectiveness, since Washington testified the East Side Crips went to the mall "[t]o go fight" some "West Sider," and he did not testify they went to the mall to kill anyone. "Q. You were ready to have a fistfight with some West Siders? [¶] [Washington]: Yes, sir."
Defense counsel asked the jury "to consider all three options you have" and give appellant a fair decision based on the facts.
In rebuttal, the prosecutor rejected defense counsels claim that "this all just happened and there was provocation and there was self-defense," and argued appellant did not have to go to the mall with a gun and fire it.
"[Appellant was] there. You heard Denzel Washington say they went there to fight the West Side. [Appellant] took a gun to that fight. [Defense counsel] talks about that Cory [Anthony] had an inoperable firearm and he was part of the West Siders. Well, the evidence is that he was away from the group. The evidence is that nobody else was ever seen with a firearm at the point of this confrontation. That comes from East Side Crips like Tremell Edwards and Denzel Washington. It comes from people with no interest in the outcome, Barbara Newkirk, Arthur Kopp. They want to say Terry Brown had a gun at the mall that day. And maybe he did, but thats going to call for speculation. There is no evidence that Terry Brown had a gun at the time of the shooting. There is no evidence that Terry Brown showed a gun at the time of the shooting. Thats all requiring speculation." (Italics added.)
The prosecutor correctly quoted Washingtons testimony.
B. Analysis.
Appellant contends defense counsels closing argument constitutes ineffective assistance because he conceded guilt and asked the jury to consider whether he was being "proactive or reactive," because "while [counsel] knew what he meant, the jurors probably did not." Appellant also points to counsels misstatement of Denzel Washingtons testimony as "an ill considered concession of the facts constituting first degree special circumstance gang murder."
"In order to demonstrate ineffective assistance, a defendant must first show counsels performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. (Strickland v. Washington (1984) 466 U.S. 668, 687-688(b).) Second, he must show prejudice flowing from counsels performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (In re Avena (1996) 12 Cal.4th 694, 721[].)" (People v. Williams (1997) 16 Cal.4th 153, 215.)
The right to effective assistance of counsel extends to closing arguments, the purpose of which is for counsel to sharpen and clarify the issues the jury must decide. (Yarborough v. Gentry (2003) 540 U.S. 1, 5; Herring v. New York (1975) 422 U.S. 853, 862.) The decision of how to argue to the jury after the presentation of evidence is inherently tactical, and judicial review of a defense attorneys summation is highly deferential. (Yarborough v. Gentry, supra, 540 U.S. at p. 6; People v. Freeman (1994) 8 Cal.4th 450, 498.) "Closing argument is as much as an art as a science .. . . Counsel must establish as much credibility with the jurors as possible if his effort to persuade them is to succeed. [Citation.]" (People v. Fairbank (1997) 16 Cal.4th 1223, 1251.)
". . . [C]andor may be the most effective tool available to counsel. [Citations.]" (People v. Mayfield (1993) 5 Cal.4th 142, 177.) "It is within the permissible range of tactics for defense counsel to candidly recognize the weaknesses in the defense in closing argument. [Citations.]" (People v. Jones (1991) 53 Cal.3d 1115, 1150.) "Defense counsel must not argue against his or her client [citation], but it is settled that it is not necessarily incompetent for an attorney to concede his or her clients guilt of a particular offense. [Citations.]" (People v. Lucas (1995) 12 Cal.4th 415, 446.) Where there is strong evidence of guilt, counsel may, as a matter of trial tactics, concede some measure of culpability and offer the jury some other choice in the defendants favor. (People v. Bolin (1998) 18 Cal.4th 297, 334-335.)
To prevail on a claim that counsels concessions during closing argument constituted ineffective assistance, a defendant must overcome the strong presumption that counsels actions were sound trial strategy under the circumstances prevailing at trial. (People v. Freeman, supra, 8 Cal.4th at p. 498.) Where the incriminating evidence was strong and counsel offered some other choice in the defendants favor, concessions in closing argument do not constitute ineffective assistance. (People v. Hart (1999) 20 Cal.4th 546, 631.)
"Reversals for ineffective assistance of counsel during closing argument rarely occur; when they do, it is due to an argument against the client which concedes guilt, withdraws a crucial defense, or relies on an illegal defense. [Citation.]" (People v. Moore (1988) 201 Cal.App.3d 51, 57.) But where evidence of the defendants guilt is overwhelming, no prejudice is suffered. (People v. Avena (1996) 13 Cal.4th 394, 422-423.)
Appellants claims of ineffectiveness are meritless based upon the entirety of the record. Defense counsel was faced with overwhelming evidence against appellant. The shoppers in the mall, his fellow East Side Crips, the surveillance videotapes, and even his girlfriend (Rogers) identified him as the gunman, who used a fluid motion to pull a weapon from his waistband, fully extend his arm, and fire directly into Marzettes chest without any hesitation. While Marzette clearly stepped towards the East Side Crips, and Tremell Edwards claimed that one of the West Side Crips might have been reaching for his waistband, the shoppers at the mall testified that appellant pulled the gun and fired without any provocation from the victim and they did not see anyone else with a gun. The videotapes showed the speed in which appellant went into the mall, found the West Side Crips, fired the shot, and ran out of the same set of doors, in barely four minutes.
As for the gang aspects of this case, it was undisputed that two rival gangs were involved, and the East Side Crips responded to the mall because one of their associates, DShawna Wright, called for help when the West Side Crips called her names at the supposedly neutral mall. Washington testified that appellant was still angry about the homicide of his cousin and fellow East Side Crip, Quinn Howard, which had occurred just two months before the mall incident. Indeed, when appellant was arrested in Texas, he carried two bags with his belongings, which included the funeral card for Howard with the inscription, "SG," referring to the "Spoonie G" subset of the East Side Crips. Delane Morin, one of the shoppers at the mall, heard someone call out "My G" immediately after the shooting. In her experience working with at-risk youth, Morin knew the phrase was like "saying my brother . . . my comrade . . . its a term of endearment in a way."
In light of the overwhelming evidence of premeditation, deliberation, and gang motivation, defense counsel made a spirited attempt to argue that appellant was not guilty of first degree murder, but that the jury should consider voluntary manslaughter or second degree murder. Defense counsel criticized the prosecutor for failing to mention the evidence that two members of the West Side Crips had guns. He cited to Cory Anthonys testimony that both Anthony and Terry Brown of the West Side Crips arrived at the mall with guns, and that Anthony planned to flash his gun if confronted by anyone. He also cited Anthonys testimony that Marzette was standing next to Brown just before the shot was fired, leading to the inference that Brown could have flashed his gun and appellant reacted to seeing Browns gun. Counsel repeatedly cited to the presence of those guns to explain why appellant was being "reactive" and pulled his gun only because he was scared.
Defense counsel was also faced with the detailed testimony of numerous eyewitnesses in the mall who were disinterested parties and not gang members. He conceded Arthur Kopp gave a detailed report of the incident, but pointed to Kopps concession that he did not see Marzettes left hand, and Tremell Edwardss testimony that one of the West Siders might have been reaching for his waistband just before the shot was fired, as further evidence that appellant might have been reacting to Marzettes movements or Browns display of a gun. Defense counsel raised the obvious argument that if appellant went to the mall simply to exact retribution against the West Side Crips in general, he could have immediately opened fire and unloaded his weapon at the entire group. Instead, counsel argued that it was reasonable to infer that appellant was being "reactive" to the actions of Marzette or someone else in his group, instead of being "proactive" and firing the gun at all of the West Side Crips.
There is absolutely no evidence that defense counsel was unprepared for closing argument or made extemporaneous remarks without consideration of the issues at hand. Defense counsels decision to concede appellant was the gunman and committed the homicide was entirely reasonable, and had the clear tactical purpose of allowing the jury to consider the reasonableness of his arguments about provocation and voluntary manslaughter. While appellate counsel may have preferred the use of different words and phrases, or structured the argument in a different manner, defense counsels tactical decisions in closing argument cannot be faulted based on the overwhelming evidence of appellants intent, premeditation and deliberation.
Appellant concedes defense counsel may have made a tactical decision to concede guilt and argue the homicide was less than first degree murder, but points to defense counsels misstatement of Denzel Washingtons testimony—that Washington said they went to the mall to "kill" the West Siders—as an example of counsels "extemporaneous" closing argument which constitutes prejudicial ineffectiveness. Appellant asserts his conviction must be reversed based upon this single phrase because his misstatement of Washingtons testimony amounted to a concession of all the facts required to prove first degree murder, premeditation and deliberation, and the gang special circumstance and enhancement.
Defense counsels misstatement of Denzel Washingtons testimony was just that—a clear misstatement of Washingtons admission that they went to the mall to "fight" the West Side Crips, and not that they went there to "kill" them. Up to that point in closing argument, defense counsel had demonstrated his clear recollection of the evidence from the lengthy trial, including some of the more meticulous aspects of the witnesses testimony about the chaotic scene at the mall. Indeed, the entirety of the trial record demonstrated defense counsel was a vigorous advocate for appellant, and extensively cross-examined the witnesses to establish key points such as DShawna Wrights admission that one of the West Side Crips flashed a gun as she was insulted, Kopps inability to see Marzettes left hand, Anthonys admissions that he carried his gun under his shirt so he could flash it if needed, Brown had a gun when he arrived at the mall, and appellant was standing next to Brown just before the shot was fired. All of these points were made in obvious anticipation of setting up the only possible defense argument in this case—the existence of imperfect self-defense and the absence of premeditation and deliberation.
In making the argument that defense counsels misstatement was indicative of his lack of preparation and ineffectiveness, appellate counsel repeatedly misstates defense counsels statements from the reporters transcript. Appellants brief quotes counsels closing argument as: "`I will accept that they were going there to kill West Enders," and that appellant was part of the "East End" gang. Defense counsels actual words were about "West Siders," and appellant was part of the rival "East Side Crips" gang. In repeatedly misquoting the reporters transcript, appellate counsel demonstrates the same type of mistake that defense counsel likely made during his closing argument.
While defense counsel attempted to raise a reasonable doubt as to premeditation and deliberation, and stressed the inferences which supported imperfect self-defense and manslaughter, his task was undermined by the strength of the evidence which defeated the inferences he was attempting to raise. While Anthony and Brown may have had weapons, Arthur Kopp and the other eyewitnesses described how appellant walked up to Marzette, lifted up his shirt with his left hand, reached into his waistband with his right hand, stepped forward in an aggressive stance, and "in one swift motion" pulled out a semi-automatic handgun, fully extended his right arm, and fired one shot into Marzettes chest, near his heart, in "a lightening quick movement." Kopp testified: "It was just like one, two, three, bam." While Kopp may not have seen whether Marzettes left hand was clenched, he testified that Marzettes hands were still at his side, Marzette did not make any movements or reach toward his body before the shot was fired, and Kopp did not see anyone else with a gun.
Appellant relies upon People v. Diggs (1986) 177 Cal.App.3d 958, in support of his argument that counsels misstatement of Washingtons testimony was prejudicial. In Diggs, two defendants were convicted of kidnapping and several sex offenses committed against two girls picked up while hitchhiking. (Id. at pp. 961, 964.) Diggs reversed the convictions for both defendants, because trial counsel for one of the defendants gave a "largely incoherent" closing argument that "appear[ed] to argue that a `permissive society in general—and television and rock music in particular—produce a nihilistic attitude in young people so that society should be held responsible for defendants conduct. However, California does not recognize a defense to crime based upon the influence of `permissive society generally, or rock music or television in particular, upon adult defendants. The argument thus tenders a nondefense to the jury." (Id. at p. 968, fn. omitted.) Diggs emphasized that counsels argument was not a legally cognizable defense, and that by essentially admitting disputed factual contentions made by one of the defendants, trial counsels "closing argument effectively withdrew a crucial defense and admitted his clients guilt without his clients consent." (Id. at p. 970.) Given these "unusual circumstances," Diggs found that "ineffective assistance of counsel is apparent on the face of the record; there is simply no plausible tactical explanation for [counsels] bizarre argument." (Ibid., fn. omitted.)
Appellants reliance upon Diggs is misplaced. This was not a situation where defense counsels closing argument tendered a nonsensical defense or withdrew crucial issues from dispute, and he did not intentionally concede premeditation. Instead, we are faced with counsels obvious misstatement of testimony in the midst of a strenuous argument that appellant reacted to a situation where one and maybe two of the West Side Crips had guns and flashed the weapons, which raised the specter of imperfect self-defense and eliminated the existence of premeditation and deliberation.
Appellants reliance upon United States v. Cronic (1984) 466 U.S. 648, is equally unavailing. Cronic held that "[i]f counsel entirely fails to subject the prosecutions case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." (Id. at p. 659.) As demonstrated ante, however, defense counsel attacked the prosecutions case on several fronts, particularly the prosecutors failure to discuss Cory Anthonys testimony about the weapons possessed by the West Side Crips that day, and Arthur Kopps admission that he did not see Marzettes left hand. Again, defense counsel clearly made his best efforts to subject the prosecutions overwhelmingly strong case to meaningful adversarial testing.
We note that the prosecutor did not seize upon or highlight defense counsels misstatement about Washingtons testimony to argue that appellant conceded guilt of first degree murder. Instead, the prosecutor used his rebuttal argument to refute defense counsels claim that appellant was provoked, and correctly stated that Washington testified the East Side Crips went to the mall to "fight" the West Side Crips. The impact of defense counsels misstatement, in the midst of a lengthy argument that appellant did not act with premeditation and deliberation, was dissipated by the instructions that the statements of the attorneys, including closing arguments, were not evidence, and for the jury to request a readback if there were any questions as to the actual testimony. (CALCRIM Nos. 202, 222; see, e.g., People v. Hughey (1987) 194 Cal.App.3d 1383, 1396, fn. 8.)
In light of the overwhelming and undisputed evidence, we cannot say that counsel was constitutionally ineffective in his attempt "to make the best of a bad situation. [Citation.]" (People v. McPeters (1992) 2 Cal.4th 1148, 1187, abrogated by statute on another point in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107.) "As in other cases where the evidence of guilt is quite strong, `it is entirely understandable that trial counsel, given the weight of incriminating evidence, made no sweeping declarations of his clients innocence but instead adopted a more realistic approach .. . . As stated in a recent case, "good trial tactics demanded complete candor" with the jury. [Citation.] Under the circumstances we cannot equate such candor with incompetence. [Citations.]" (People v. Gurule (2002) 28 Cal.4th 557, 612.)
As for counsels misstatement of Washingtons testimony, appellant "fails to establish prejudice in light of the overwhelming evidence introduced against him. He fails to establish that his trial counsels performance deprived him of any meritorious defense, or to demonstrate a reasonable probability that the result would have been more favorable to him in the absence of any alleged ineffectiveness. [Citations.]" (People v. Hart, supra, 20 Cal.4th 546, 632.) We thus conclude that to the extent defense counsel erroneously recounted Washingtons testimony, the error was not prejudicial.
II. The Lerdo telephone call.
As set forth ante, the prosecution introduced evidence about a telephone call made from the Lerdo facility from a payphone near appellants cell, purportedly by another East Side Crip, who instructed a female to testify she was at the mall, saw the other West Side Crips with guns, and saw the victim reach for his waist. Appellant contends such evidence was inadmissible because the prosecution failed to establish the requisite foundation to connect him to the callers attempts to fabricate evidence, the conversation constituted multiple levels of inadmissible hearsay, and introduction of the tape-recording of the telephone call violating Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
A. Background .
On the second to last day of testimony, the prosecution called Bakersfield Police Officer Charles Sherman to testify as an expert about the East Side Crips. After defense counsel completed cross-examination, the prosecutor requested to "reopen briefly for one small point" that would lead into another witness. Sherman then testified that a call was recorded from the Lerdo facility which had been placed by an inmate, "Pete," to appellants mother. Sherman recognized "Petes" voice as Jaime Avila, an East Side Crip, based on Shermans prior contacts with Avila. Sherman testified Avila called appellants mother, who set up a three-way telephone call with "Vickie," and Avila told her to testify that she was at the mall, and she saw Marzette reach into his waistband as if he had a gun. Sherman testified the telephone call represented one East Side Crip trying to set up a defense for another East Side Crip. On cross-examination, Sherman conceded appellant was not a party to the telephone call.
After Shermans testimony, the court excused the jury and defense counsel objected to the testimony about the telephone call because there was no notice the evidence was going to be introduced. While counsel had received a list of 12 telephone calls from the jail, and this call was included in the list, counsel did not receive any notice that this particular call was going to be introduced since appellant did not place the call. Defense counsel also objected because no one named "Vickie" had come forward in this case and offered such testimony. The prosecutor replied that based on the context of the conversation, it was reasonable to infer Avila made the call on appellants behalf, and the evidence was admissible as an attempt to fabricate testimony.
The court asked the prosecutor to explain why he believed the call was placed to appellants mother. The prosecutor explained the jail had a system to "capture" calls made by particular inmates, or to certain telephone numbers which belong to their families, which is why inmates often make three-way calls so the jail cannot track who they are actually calling. The recipient was referred to as "Maple," and the police reports identified appellants mother as "Maple Hester." The call was made to the telephone number used by his mother and "listed as that in some previous reports that were in the gang packet."
Respondent asks this court to take judicial notice of a reverse directory search on the internet to confirm the telephone number belonged to Maple Hester, and asserts such information is public record. We decline to address an evidentiary matter outside the record.
The court believed the evidence was admissible if the prosecution could establish that appellant was present or authorized the telephone call. The prosecutor argued that inference was raised by the context of the conversation because the inmate/caller shouted questions and responses about the shooting to someone else at the jail. The court agreed that the transcript showed the inmate/caller was making the call "on behalf of somebody else, clearly yelling down the pod . . . getting information from someone else."
The court wanted an offer of proof as to whether the call was made from a location where appellant would have been able to speak to the inmate/caller. Defense counsel argued that Tobias Robertson was in custody at Lerdo at the same time. The prosecutor replied the inmate/caller told the recipient that he was calling for her boy, and Robertsons mother was not "Maple."
The court again instructed the prosecutor to determine where appellant was held at Lerdo at the time of the call, and whether he could have communicated with the inmate who made the call. The court adjourned for the day.
B. The transcript.
On the next and final day of trial, the prosecutor made an offer of proof that the call was made from one of two payphones in a particular dayroom at Lerdo, appellant was housed in a cell that was near both payphones, and he could have talked to the inmate/caller through the food port in the cell door. The prosecutor also made an offer of proof of how the telephone calls are tape-recorded. He introduced photographs of the area and measurements between the cell door and the payphones.
The court listened to the recording of the telephone call prior to ruling on its admissibility. According to the transcript, the inmate/caller said he was "Pete," told appellants mother, "Maple," that he was calling "for Junior," and appellants mother accepted the collect call. "Pete" said he was "calling for your boy," who wanted her to "call Vickie." Appellants mother replied that she knew Vickies number, and set up a three-way call with "Vickie" and "Pete."
The transcript reflects that "Vickie" came on the line, and "Pete" said that "Junior" wanted her to talk to "the same female that called you before" and not to say anything about his name. "Pete" said that "he told me to tell you the business," (italics added) to say the "crew" walked into the mall, a "dude" from the other group started arguing, and "the other group" started "flashing . . . burners," which meant guns. "Pete" instructed "Vickie" to say that one of the dudes "ran towards him" with "his hand in his waist like he was getting ready to draw something," and "thats when it happened. And uh, he want to call you and, and the other female as a witness." (Italics added.)
"Pete" asked "Vickie" what she wanted to tell him. "Vickie" hesitated and "Pete" said there "aint nothing hard about it. They cant do nothing to you." Vickie again hesitated and said to tell him that theyd talk about it.
At that point, "Pete" paused and clearly spoke to someone at the jail who was not on the telephone line, and said:
"She say, she say you and her are going to talk about it. Oh, he said thats the whole thing he cant do no talking about it." (Italics added.)
"Vickie" said she would think about it and let him know. "Pete" told "Vickie" to hang on, and shouted to someone at the jail:
"She says shes gonna think about it. She says you know you cant go into details but shes gonna think about it and let you know if shes gonna do it. Huh? Shes gonna think about it. Thinking about on the, getting on, you know, the witness. He, he said aint no thinking about it. Just come through for your boy."
"Pete" continued, "He said you always wanted a position in his life . . . and heres your opportunity." "Vickie" replied that she already had a position in his life. "Pete" said, "I guess it be more the merrier or something I dont know. Thats just what he said. Wait a minute. Huh?" "Pete" again paused and listened to someone shouting at him:
"Call who? Oh he, he wants you to call his investigator when you get off the phone. She got a number? She got a number? You suppose to have all that stuff ready man, damn." (Italics added.)
"Pete" again explained to "Vickie" that she was supposed to say that the two groups argued in the mall, the other group showed their "burners . . . posing a threat," and another guy reached into his pants "like if he was going to draw something and thats when it went down right there." "Pete" paused as someone again shouted to him, and said:
"Wait just a minute. Oh, he say uh, his investigator going to uh, enlighten you a little bit more anyway." (Italics added.)
"Vickie" repeated what "Pete" told her to say, and asked what guy ran toward them. "Pete" paused, again called out to someone else, someone can be heard shouting back, and "Pete" said:
"Wait a minute. Hey (unintelligible) who was the one that ran over (unintelligible). Who was the one that ran towards you? He said the dead nigger." (Italics added.)
"Pete" also told "Vickie" to specify that "Junior and them" were standing by a particular store when it happened, and "Vickie" saw the "victim" reach into his waistband and then he was shot. "Pete" explained "its like a, a self-defense thing.. . . He posed a threat and he got shot in the process." "Pete" said that "he wants you" to contact "the other female as soon as you can," and "mention his name and all that stuff." "Vickie" said she got it and she would tell "Shawnese."
"Shawnese" could possibly refer to DShawna Wright, who testified that one of the West Siders flashed a gun when she was insulted. Wright was impeached by her failure to mention that fact in her prior interviews or at the preliminary hearing.
C. The courts ruling and the instruction.
The court held there was sufficient foundation to introduce the Lerdo telephone call based on the proximity of appellants cell to the payphones, and a reasonable inference could be drawn from the context of the telephone call that appellant authorized the inmate/callers attempt to fabricate evidence, since the inmate/caller clearly discussed the mall shooting, instructed "Vickie" to say that the victim reached for a gun, and passed along comments from someone at the jail who was shouting at him. The court held:
". . . [T]here is enough evidence or sufficient evidence for foundational purposes that [appellant] engaged someone else, a third party, to attempt to deliver false testimony and that this phone call that we have talked about . . . was either done in his presence or at least with his acknowledgement and with his support."
The court noted appellants continuing objection to the evidence.
Thereafter, the trial resumed before the jury, and the prosecution called a detention officer who testified as to the proximity of appellants cell to the two payphones in the dayroom. The prosecution also called Donna Bingham, a technician with the sheriffs department, who testified about the telephone system at Lerdo, how inmates place collect telephone calls, that all calls are tape-recorded and saved in a database, the calls can be searched by the telephone numbers, and memorialized by time and date placed. Bingham authenticated the tape-recording of the call from "Pete" at Lerdo, and the recording was played for the jury.
During the instructional phase, the court gave CALCRIM No. 371 on consciousness of guilt and fabrication of evidence:
"If the defendant tried to hide evidence or discourage someone from testifying against him, that conduct may show that he was aware of his guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.
"If someone other than the defendant tried to create false evidence, provide false testimony, or conceal or destroy evidence, that conduct may show the defendant was aware of his guilt but only if the defendant was present and knew about that conduct or, if not present, authorized the other persons actions. It is up to you to decide the meaning and importance of this evidence. However, evidence of such conduct cannot prove guilt by itself."
D. Analysis.
Appellant contends the court should have excluded evidence of the Lerdo telephone call because the prosecution failed to establish the requisite foundation to give CALCRIM No. 371 and connect him to Avilas efforts to fabricate evidence, the conversation itself constituted multiple levels of inadmissible hearsay, and the tape-recording violated his due process rights pursuant to Crawford, supra, 541 U.S. 36.
We note that appellant only objected to the evidence based on the foundational issue for the instruction, and did not raise hearsay or due process objections. We will address these issues since his claims are incorporated into a larger due process argument. (See, e.g., People v. Prieto (2003) 30 Cal.4th 226, 247.)
We first address the foundational requirements for CALCRIM No. 371, an instruction which informs the jury that certain types of conduct on the defendants part "could indicate consciousness of guilt, while also clarifying that such activity was not of itself sufficient to prove a defendants guilt, and allowing the jury to determine the weight and significance assigned to such behavior. The cautionary nature of the instructions benefits the defense, admonishing the jury to circumspection regarding evidence that might otherwise be considered decisively inculpatory. [Citations.]" (People v. Jackson (1996) 13 Cal.4th 1164, 1224 [former CALJIC No. 2.06]; People v. Riggs (2008) 44 Cal.4th 248, 309, fn. 27.)
"`It is an elementary principle of law that before a jury can be instructed that it may draw a particular inference, evidence must appear in the record which, if believed by the jury, will support the suggested inference. [Citation.] Whether or not any given set of facts may constitute suppression or attempted suppression of evidence from which a trier of fact can infer a consciousness of guilt on the part of a defendant is a question of law. Thus in order for a jury to be instructed that it can infer a consciousness of guilt from suppression of adverse evidence by a defendant, there must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference. [Citation.]" (People v. Hart, supra, 20 Cal.4th at p. 620.)
On appeal, we determine whether there was substantial evidence in the record to support giving an instruction on suppression or fabrication of evidence. (People v. Hart, supra, 20 Cal.4th at p. 620.) There need only be some evidence, not conclusive evidence, of the facts giving rise to the inference. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 102.)
CALCRIM No. 371 was properly given based on two grounds. First, Brittany Rogers, appellants girlfriend, was a key witness as to when appellant and his companions left in her car, and her realization that appellant was the gunman when she saw the photograph on the television news. Rogers testified she visited appellant in jail numerous times before trial, and he asked her not to testify against him. Such evidence supported the first paragraph of CALCRIM No. 371, that appellant tried to discourage someone from testifying.
The second paragraph of CALCRIM No. 371 was obviously based upon the Lerdo telephone call. While the prosecutors initial offer of proof was somewhat lacking, he produced sufficient evidence at the subsequent hearing to connect appellant to the Lerdo call. A correctional officer recognized the inmate/callers voice as Jaime Avila, an East Side Crip; the call was "captured" by the jails recording system because it was placed to a telephone number identified as belonging to appellants mother; the sole topic of the conversation between Avila and "Vickie" was about very specific details of the mall shooting. Avila carefully explained what she needed to say about being at the mall, what store she was standing by, how the other guys flashed their guns, and she saw the victim reach for his waistband before the shot was fired.
Appellant correctly points out that his voice was not on the tape-recording and argues there was no foundation to connect him to "Petes" conversation with "Vickie" to support CALCRIM No. 371. Evidence that a person other than the defendant has attempted to suppress or fabricate evidence cannot be used against the defendant to infer a consciousness of guilt unless the defendant authorized or participated in the attempt. (People v. Hannon (1977) 19 Cal.3d 588, 599-600.) "[T]here must be some evidence in the record which, if believed by the jury, will sufficiently support the suggested inference." (Id. at p. 597.) The court must determine the existence of such evidence before the instruction may be given. (Id. at p. 598.) The prosecutor met the foundational burden by showing the call was placed from one of the two payphones in the Lerdo dayroom, appellant was housed in a cell which was located 52 feet away from one payphone and 48 feet away from the other, and it was possible for appellant to communicate with someone in the dayroom through the food slot in his cell door. There are several portions of the tape-recording where "Pete" shouts to someone at the jail, obviously in his general vicinity, about "Vickies" responses, and someone shouts back with additional details and directions for her. While there was no direct evidence that appellant authorized "Pete" to place the call, there was extremely strong circumstantial evidence that he did so, and that "Pete" was relaying appellants instructions to "Vickie" during the call.
Appellant also contends the telephone conversation constituted multiple levels of inadmissible hearsay: the tape-recording of the call itself, and Avilas statements to Vickie. When multiple hearsay is offered, an exception for each level of hearsay must be found in order for the evidence to be admissible. (Evid. Code, § 1201; Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1205.) The tape-recording of the telephone call was admissible as an official record, and the prosecution established the foundation based upon the testimony of correctional officers as to how Lerdos system captured the call to appellants mother, the location of the payphone from which the call was placed, and the date of the call. (Evid. Code, § 1280; Alvarez v. Jacmar Pacific Pizza Corp., supra, 100 Cal.App.4th at p. 1205.)
To the extent that Avilas statements during the call constituted hearsay, such evidence was admissible pursuant to the authorized admission exception of Evidence Code section 1222, which states:
"Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if:
"(a) The statement was made by a person authorized by the party to make a statement or statements for him concerning the subject matter of the statement; and
"(b) The evidence is offered either after admission of evidence sufficient to sustain a finding of such authority or, in the courts discretion as to the order of proof, subject to the admission of such evidence."
An authorized admission may be received in evidence despite the declarants lack of personal knowledge or a foundation for the expressed opinions and conclusions. (Levy-Zenter Co. v. Southern Pac. Transportation Co. (1977) 74 Cal.App.3d 762, 787.) But there must be a foundational showing that the declarant was authorized to speak on behalf of the defendant. (Rochlis v. Walt Disney Co. (1993) 19 Cal.App.4th 201, 217, overruled on other grounds in Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) "The authority of the declarant to make the statement need not be express; it may be implied. It is to be determined in each case under the substantive law of agency." (Cal. Law Revision Com. com., 29B Pt.4 Wests Ann. Evid. Code (1995 ed.) foll. § 1222, p. 159.) While the declarations of the agent are not sufficient to prove the agency, they are nevertheless admissible after prima facie proof of the agency has been made. (Frank Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1, 14.)
The entire context of the telephone call established the foundation for the authorized admission exception. Avila told appellants mother that he was calling for "your boy," who wanted her to call Vickie, and then informed Vickie that same person wanted her to fabricate evidence that she was at the mall and saw the victim reach for his waist. Avilas declaration that he was calling for "your boy" was insufficient to establish the agency by itself, but there was much more to this telephone call than one inmate simply passing along a message for another. Instead, there were numerous instances when Avila paused and shouted "Vickies" responses to someone at the jail, and the third party then shouted additional instructions and details on how Vickie should fabricate her testimony.
There are several excerpts which raised the strongest inference that appellant was the inmate who shouted instructions that Avila repeated:
"Oh he, he wants you to call his investigator when you get off the phone. She got a number? She got a number? You suppose to have all that stuff ready man, damn." (Italics added.)
As Avila tried to explain the shooting scenario to "Vickie," he again paused and relayed more instructions from someone at the jail:
"Wait a minute. Oh, he say uh, his investigator going to uh, enlighten you a little bit more anyway." (Italics added.)
Avila emphasized that "Vickie" had to say the other group had "burners," meaning weapons, and "the other guy ran towards him as he was reaching in his pants like if he was going to draw something .. . ." (Italics added.) Vickie asked who ran toward them. Avila paused and relayed the question:
"Wait just a minute. Hey (unintelligible) who was the one that ran over (unintelligible). Who the one that ran towards you? He said the dead nigger." (Italics added)
These excepts raise the extremely strong inference that appellant, the undisputed gunman in this case, authorized and directed Avila during the telephone call as to how he wanted evidence fabricated in this case. Based on the foundational evidence of appellants direct proximity to Avilas location at the dayroom payphone, and these excerpts from the recording, there is strong circumstantial evidence that appellant authorized the call to his mother and Vickie, and the instructions to Vickie to fabricate her testimony.
To the extent the hearsay statements on the tape-recording were not subject to an exception, any error is necessarily harmless under any standard of prejudice. As set forth in issue I, ante, appellant was faced with a huge amount of evidence which established his identity as the gunman, and that he acted with premeditation and deliberation when he fired on the victim without provocation. There was also admissible evidence which supported the consciousness of guilt instruction based upon Rogerss testimony that appellant asked her not to testify against him. The evidence of the Lerdo telephone call, and the inference raised by his attempt to fabricate evidence, was almost cumulative in light of the case against appellant.
Finally, appellant contends the tape-recording itself violated his right to confront and cross-examine witnesses as set forth in Crawford. Appellants Crawford argument is meritless. Avilas conversation with Vickie was not testimonial because it was not a formal statement to government officers, the result of structured police questioning, or made under circumstances that would lead an objective witness to believe the statement would be available for use at a later trial. (Crawford, supra, 541 U.S. at pp. 51-52; Davis v. Washington (2006) 547 U.S. 813, 830; People v. Jefferson (2008) 158 Cal.App.4th 830, 843-844.) While the participants on the telephone call heard a warning that the call was subject to monitoring and recording, a Sixth Amendment violation could be established only where "`the police . . . took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks. [Citation.]" (People v. Williams (1997) 16 Cal.4th 153, 205.)
III. The defense instructions.
As explained ante, appellants defense theory was to concede he was the gunman but he lacked premeditation because he only reached for his gun when he saw one of the West Side Crips make a furtive gesture or actually in possession of a gun. The jury herein was instructed on reasonable self-defense and justifiable homicide, second degree murder, and imperfect self-defense and voluntary manslaughter.
Appellant contends the instructions on reasonable and imperfect self-defense failed to convey his defense theory that he "did not need to await an actual use of deadly force if he believed that it would take place unless he escalated immediately to the use of such force," and that appellant had the right "to pursue a higher level of force" without having to "withdraw upon the sudden escalation from the verbal confrontation by Marzette stepping forward .. . ."
Appellant did not challenge these instructions at trial and has not raised an ineffective assistance claim, but we will address his contentions that the omission of certain language violated his due process right to present a defense. (See, e.g., People v. Prieto, supra, 30 Cal.4th 226, 247.)
The California Supreme Court has explained both reasonable and imperfect self-defense as follows:
"For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is `imperfect self-defense, i.e., `the defendant is deemed to have acted without malice and cannot be convicted of murder, but can be convicted of manslaughter. [Citation.] To constitute `perfect self-defense, i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] As the Legislature has stated, `[T]he circumstances must be sufficient to excite the fears of a reasonable person .... [Citations.] Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm. `Fear of future harm—no matter how great the fear and no matter how great the likelihood of the harm—will not suffice. The defendants fear must be of imminent danger to life or great bodily injury. [Citation.]" (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted, italics in original.)
The trial court herein instructed the jury with CALCRIM No. 505, justifiable homicide and lawful self-defense, and CALCRIM No. 571, imperfect self-defense, which correctly stated the applicable defense principles for these theories. (People v. Romero (1999) 69 Cal.App.4th 846, 853-855, fns. 3 & 4.)
Appellant contends the instructions were incomplete because they failed to convey the principle that "[s]elf defense does not require waiting and giving the opponent a free shot at very close range while conveying that there is no desire to engage in further confrontation and that one is retreating," and the jury should have been instructed that he did not need "to await an actual use of deadly force if he believed that it would take place unless he escalated immediately to the use of such force." (Italics added.)
There are several problems with appellants instructional argument. First, his argument is based on the assertion that the instructions failed to convey what "he believed" was about to happen at the mall. There is no direct evidence as to what appellant actually believed since he did not make any statements and he did not testify. Instead, his defense relied upon evidence offered by Cory Anthony of the West Side Crips, that Anthony and Brown had guns that day; DShawna Wrights testimony and statements that she saw one of the West Siders flashing a gun when he insulted her; and Tremell Edwardss testimony that he thought he saw Marzette or another West Sider reach for his waist just before the shot was fired. The only evidence of what appellant might have been thinking came from Edwards, who testified that he did not see who shot Marzette, but appellant later told Edwards that he shot the victim because he was scared.
Second, to the extent that Edwardss testimony might have supported additional instructional language, we note that appellants arguments on this issue are based on People v. Quach (2004) 116 Cal.App.4th 294 (Quach), which involved a shootout where the testimony was inconsistent as to whether the defendant drew his gun first or only after a rival gang member fired his weapon. (Id. at pp. 297-298.) Quach rejected language in then-CALJIC No. 5.56, the standard instruction on mutual combat, that afforded the right of self-defense to a mutual combatant only after, inter alia, he informed his opponent that he has stopped fighting and given his opponent the opportunity to stop. (Id. at p. 300.) Quach noted the defense was based upon Penal Code section 197, which states that self-defense is available to an assailant or mutual combatant if he first "`really and in good faith [has] endeavored to decline any further struggle before the homicide was committed." (Quach, supra, 116 Cal.App.4th at p. 301.) Quach held there were facts from which the jury could have found mutual combat, and that in such circumstances, the jury should be instructed that when "`[w]here the counter assault is so sudden and perilous that no opportunity be given to decline further to fight and he cannot retreat with safety he is justified in slaying in self-defense." (Id. at p. 303.) Quachs holding was thus derived from the rule that the initial aggressor may resort to self-defense only if the victims response is unjustified, criminal, or a greater wrong. (Id. at pp. 301-302.)
As a result of Quach, the mutual combat instruction was modified and now includes the following language: "If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend [himself] with deadly force and was not required to try to stop fighting." (CALCRIM No. 3471.)
Appellant has not asserted the court should have given the mutual combat instruction, CALCRIM No. 3471. While the trial court has a sua sponte duty to instruct the jury on any affirmative defense for which the record contains substantial evidence (People v. Salas (2006) 37 Cal.4th 967, 982-983), there was no evidence appellant started the confrontation with nondeadly force. Indeed, appellants entire theory was that he arrived at the mall with his East Side Crip associates, the West Side Crips shouted insults at them, and Marzette stepped toward him in an aggressive manner, thus initiating the confrontation.
Finally, we reject appellants argument the defense instructions were incomplete for failing to include Quachs language. We determine whether a jury is properly instructed from the entire charge of the court, not from consideration of parts of an instruction or from particular instructions. (People v. Hughes (2002) 27 Cal.4th 287, 360.) The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.)
CALCRIM No. 505, reasonable self-defense, included language that appellant was not guilty of murder or manslaughter if he reasonably believed he or his companions were "in imminent danger of being killed or suffering great bodily injury," and he reasonably believed "the immediate use of deadly force was necessary to defend against that danger." It further stated that he had to believe "there was imminent danger of great bodily injury to himself or someone else." Similarly, CALCRIM No. 571, imperfect self-defense, similarly stated that murder would be reduced to voluntary manslaughter if he actually believed that his companions "were in imminent danger of being killed" and "the immediate use of deadly force was necessary to defend against the danger," but at least one of those beliefs was unreasonable, and belief in future harm was not sufficient.
Appellant complains the instructions failed to convey the principle that he did not need "to await an actual use of deadly force if he believed that it would take place unless he escalated immediately to the use of such force." (Italics added.) However, the instructions as given correctly stated the relevant principles, that the homicide was justifiable if he reasonably believed the immediate use of deadly force was necessary to defend against the imminent danger of great bodily injury, and the homicide was voluntary manslaughter if he had the actual but unreasonable belief that the immediate use of deadly force was necessary.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
Levy, J.
Gomes, J.