Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA343335 Stephen A. Marcus, Judge.
Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
A jury convicted defendant Jared Brown of two counts of second degree robbery (Pen. Code, § 211), found true in one count that he personally used a knife (§ 12022, subd. (b)(1)), and found true that he committed the crimes for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)). He admitted four prior strike convictions under the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one serious felony conviction (§ 667, subd. (a)(1)), and one violent felony conviction (§ 667.5, subd. (a)). The trial court sentenced him to an aggregate term of 61 years to life in state prison.
All undesignated section references are to the Penal Code.
The jury found not true in one count that he personally used a firearm. (§ 12022.53, subd. (b).)
Defendant appeals from the judgment of conviction, contending that the trial court erred in denying his motion for Pitchess discovery and his Wheeler/Batson motion, and in excluding evidence of third-party culpability. He also contends that the identification evidence was insufficient to prove his guilt of the charged robberies and that various incidents of prosecutorial misconduct deprived him of a fair trial. We reject the contentions and affirm the judgment.
BACKGROUND
I. Prosecution Evidence
A. Dominguez Robbery
Around 3:30 p.m. on May 29, 2008, then 16-year-old Exon Dominguez was leaving Manual Arts High School when a man (later identified as defendant) approached him riding a “cruiser” bicycle. Dominguez noticed that defendant had a scar on his forehead and a tattoo containing the color red on one inner forearm. Defendant asked what he had in his pockets. When Dominguez said that he had nothing, defendant told him, “Empty out your pockets. I am not going to hurt you.” Dominguez complied, and defendant took his Play Station Portable Device. When Dominguez complained, defendant pointed an open switchblade knife at him and said, “Don’t question me.” As he rode away on his bicycle, defendant said, “40 Crip.”
B. Vera Robbery
Around 4:20 p.m., less than an hour after the Dominguez robbery, 17-year-old Oscar Vera was walking home from Los Angeles High School, near Gramercy and Western, when defendant rode up on a chrome colored bicycle with another man sitting on the handle bars. Defendant summoned Vera, who replied that he had to get home. Defendant’s accomplice got off the handlebars, pushed Vera against a car, and told him to empty his pockets. Defendant remained on the bicycle. Vera slapped the accomplice’s hands away from his pockets. Defendant said, “Just let him check you. He has a burner.” The accomplice pulled out a gun and pointed it at Vera’s head. Defendant also produced a gun and pointed it at Vera. Vera noticed that defendant had a tattoo of a face with red in it on his forearm, and had tattoos above the knuckles of one hand.
The accomplice took Vera’s wallet and cell phone. Defendant and the accomplice said that Vera had “fucked up for living in that neighborhood because they’re looking for 30’s.” Defendant said that he was from the “40’s, ” and the accomplice said he was from the “60’s.” They then rode off on defendant’s bicycle.
Three days later, Vera was riding in a car with his mother when he saw defendant riding a bicycle near Western and King. They made eye contact, and defendant appeared startled. Vera saw a tattoo of a clown on defendant’s forearm and also saw a tattoo of a four-leaf clover on his neck.
C. Identification Evidence
On June 3, 2008, five days after he was robbed, Dominguez identified defendant’s photograph in a photographic lineup. He wrote that defendant “looked like” the robber, by which he meant (according to his trial testimony) that he was sure defendant was the robber. He was also shown a photograph of a clown tattoo on defendant’s forearm, and identified it as similar to the tattoo he had seen on the robber’s forearm. Later, at a live lineup, Dominguez believed defendant and another person resembled the robber, although defendant was closer in appearance to the robber. At the preliminary hearing and at trial, Dominguez identified defendant as the robber, and was sure of the identification. He was also sure that defendant’s clown tattoo was the same as the robber’s tattoo.
On June 19, 2008, Vera selected defendant’s photograph as showing the robber who stayed on the bicycle (though he was not “so sure”), and identified a photograph of defendant’s clown tattoo. At a live lineup on September 9, 2008, Vera was unable to make an identification. At the preliminary hearing and at trial, Vera identified defendant as the robber who stayed on the bicycle, and had no doubt about his identification. He also recognized defendant’s clown tattoo, four-leaf clover tattoo, and fist tattoos.
D. Other Evidence
On July 9, 2008, Los Angeles Police Detective John Flores searched the home of defendant’s girlfriend, Ciji Perkins, where defendant lived off and on. He saw two bicycles in the living room, a black one and a blue and silver one, depicted in two photographs.
Detective Flores testified as the prosecution’s gang expert. According to Detective Flores, defendant was an active member of the 40’s Crips, known as “Pop Squally.” Given the circumstances of the robberies in the present case, Detective Flores believed that the crimes were committed to benefit the 40’s Crips.
II. Defense Evidence
Defendant was 31 years old, 6 feet, 9 inches tall, and weighed 230 pounds. His physical appearance differed from the descriptions Dominguez and Vera gave the police. Dominguez told police that the robber was perhaps 25 to 30 years old, 6 feet, 1 inch to 6 feet, 3 inches tall, weighing about 230 pounds. Vera initially described the robber who remained on the bicycle as being 20 years old, 6 feet tall, weighing about 170 pounds.
Ciji Perkins, defendant’s girlfriend, testified that she lived about four blocks from Manual Arts High School, and defendant sometimes stayed with her, although he had a home about two blocks from hers. Defendant had ceased his gang activities, and was working in a gang intervention program. On the day of the robberies (May 29, 2008), defendant was at Perkins’ home all day. Perkins denied ever seeing the bicycles depicted in the photographs identified by Detective Flores. She had two bicycles, a pink one and a white and pink one. She had never seen defendant riding a bicycle.
Dr. Mitchell Eisen, a forensic psychologist, testified concerning factors affecting the reliability of eyewitness identification evidence.
III. Rebuttal
Perkins denied being a member of the 40’s Crips and denied participating in a gang fight involving the 40’s Crips. Detective Flores testified in rebuttal that Perkins participated in the fight by jumping out of a vehicle with three other people (two of whom belonged to the 40’s Crips), yelling “40’s Bitch, ” and beating two women.
Perkins had a tattoo of a “C” on each shoulder. She testified that the tattoos stood for her nickname, “Cece.” Detective Flores testified that Perkins used to live in Compton and the letters “CC” commonly refer to the Compton Crips.
DISCUSSION
I. Pitchess Motion
Defendant contends that the trial court erred in denying his pretrial motion for Pitchess (Pitchess v. Superior Court (1974) 11 Cal.3d 531) discovery of complaints of misconduct against Detective Flores. We conclude that the trial court did not abuse its discretion in denying the motion without examining the records in camera, because defendant failed to present a plausible factual scenario showing how misconduct by Detective Flores caused Dominguez and Vera to misidentify defendant.
To obtain an in camera review of police officer personnel records for possible disclosure, “the defendant must file a motion supported by affidavits showing ‘good cause for the discovery, ’ first by demonstrating the materiality of the information to the pending litigation, and second by ‘stating upon reasonable belief’ that the police agency has the records or information at issue. [Citation.] This two-part showing of good cause is a ‘relatively low threshold for discovery.’ [Citation.]” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).)
In alleging officer misconduct to establish good cause for discovery, defendant must provide “‘a plausible scenario... that might or could have occurred.’ [Citation.] A scenario is plausible when it asserts specific misconduct that is both internally consistent and supports the proposed defense. [Citation.]” (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71.) “[D]efendant need demonstrate only ‘a logical link between the defense proposed and the pending charge’ and describe with some specificity ‘how the discovery being sought would support such a defense or how it would impeach the officer’s version of events’ [citation].” (People v. Gaines (2009) 46 Cal.4th 172, 182.) “If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.]” (Id. at p. 179.) We review a trial court’s ruling on a Pitchess motion for abuse of discretion. (Peoplev. Lewis and Oliver (2006) 39 Cal.4th 970, 992.)
Defendant sought discovery of complaints against Detective Flores for, inter alia, dishonesty and fabrication of evidence or charges. As explained in the motion, defendant sought the records to support the claim that Detective Flores “inserted himself into the investigation of these robberies in order to suggest and ultimately to convince these two impressionable and fearful young victims that Defendant Brown was the robber and to encourage and coax them to identify the pictures he had taken of Brown’s tattoos, and ultimately to identify [defendant].”
The motion referred to declarations by Ciji Perkins, defendant, and defense counsel. However, only the declaration of defense counsel is in the record on appeal. On information and belief, defense counsel stated in relevant part (apparently based on information told to her by defendant and Perkins) that Detective Flores and other gang officers had a history of harassing defendant, and that Detective Flores threatened to “‘put a case’” on defendant. She added: “I believe that Detective Flores pointed [defendant] and the photographs of his tattoos out to Detective White [the original investigating officer of the Vera robbery], and possibly also to the victims in the instant case, with the intent of causing the victims to make a false identification of Defendant.... [¶] Based on the statements of Defendant and his girl friend Ciji Perkins alleging numerous incidents in which they were stopped and harassed by Detective Flores and his associates on the street, I believe that Detective Flores had a personal animus toward Defendant, that motivated him to act wrongfully by inserting himself in the investigation of this case so as to cause the victims in these robberies to falsely identify Defendant as the perpetrator.”
Although the declarations of defendant and Perkins do not appear to have been submitted with the motion, the motion contained a lengthy summary entitled “Events according to Jared Brown.” That section of the motion stated the following. Defendant is 6 feet, 7 inches tall (taller than the robber described by the victims). Although defendant was no longer an active Rollin’ 40’s gang member, he was a frequent target of harassment by gang officers, including Detective Flores. Two named gang officers (not Detective Flores) stopped defendant and told him that “he would need either to leave a gun in the alley or purchase narcotics or they would put a case on him that he would not be able to beat.” Unnamed officers engaged in “verbal taunting, stopping him in the street while he is going about his business for no reason, and threats to ‘put a case on him.’” Officers also harassed defendant’s girlfriend, Ciji Perkins. Detective Flores told defendant, “‘We’re going to catch you slipping, ’” and mentioned that another named gang officer would “‘be back for you.’” Defendant believed that Detective Flores had falsely arrested him for violating a gang injunction, and believed that “Detective Flores got personally involved in this case in order to persecute [him] and to carry out his previous threat to ‘put a case on him.’”
The scenario envisioned in defense counsel’s declaration -- a belief “that Detective Flores pointed [defendant] and the photographs of his tattoos out to Detective White, and possibly also to the victims in the instant case, with the intent of causing the victims to make a false identification of Defendant” -- was insufficient to justify production of the requested records. The showing failed to present “a specific factual scenario [of misconduct by Detective Flores] that is plausible when read in light of the... undisputed circumstances” surrounding Vera and Dominguez’s identifications of defendant. (People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.)
In the body of the motion, based on a summary of the preliminary hearing transcript and, apparently, police reports (none of which was included), defendant described the undisputed evidence of Vera’s and Dominguez’s identifications. That description suggested no circumstances under which Detective Flores could have influenced the identifications.
As to Dominguez, the motion recited that Dominguez had told the police that the robber had a tattoo on his right forearm of a design or emblem containing a small glimpse of red. It also stated that Dominguez positively identified defendant in a photographic lineup, tentatively identified defendant and another man at a live line-up, and positively identified defendant at the preliminary hearing. Finally, it stated that Dominguez testified at the preliminary hearing that the robber had a tattoo of a clown with a red nose, though he had not described the tattoo in that fashion to the police. Nothing in the motion described any interaction whatsoever between Dominguez and Detective Flores, much less interaction in which Detective Flores could have pointed out a photograph of defendant or his clown tattoo in a manner that would lead to a misidentification of defendant at the photographic lineup, live lineup, or the preliminary hearing.
In discussing Vera’s identification of defendant, the motion stated that Vera told the original investigating officer of his robbery, Detective White, that the suspect had a tattoo on his right arm of a face with red in it. The motion also stated that Vera had identified no one from a book of Rollin’ 40’s gang members shown him by Detective White, that Vera had tentatively identified defendant at a photographic lineup, that he had identified no one at a live lineup, and that he had positively identified defendant at the preliminary hearing, where he also identified a photograph of defendant’s clown tattoo. As with Dominguez, the motion itself made no mention of any interaction between Detective Flores and Vera at all, much less interaction that might have influenced Vera’s identification of defendant and his clown tattoo.
Finally, the only conduct relating to Detective Flores mentioned in the motion that was relevant to the identifications was (1) Detective Flores had taken photographs of defendant’s tattoos, including the clown tattoo on defendant’s arm; (2) Detective White consulted Detective Flores, who was a Rollin’ 40’s gang expert, and Detective Flores told him that defendant was a Rollin’ 40’s gang member who had a large tattoo with red in it (the type of tattoo described by Vera); (3) Detective White then prepared a six pack that included defendant’s photograph, which Vera identified; (4) Detective White also showed Vera a photograph of defendant’s clown tattoo and Vera identified it; and (5) Detectives White and Flores talked to Vera before showing him the six pack. Nothing in this evidence suggests that Detective Flores somehow “pointed [defendant] and the photographs of his tattoos out to” Dominguez and Vera and thereby obtained false identifications. (See People v. Hill (2005) 131 Cal.App.4th 1089, 1100, overruled on another point in People v. French (2008) 43 Cal.4th 36, 48[Pitchess motion properly denied because, inter alia, it failed to show any connection between officers’ conduct and witnesses’ identification of defendant].)
On the record presented by defendant’s motion, we conclude that the trial court did not abuse its discretion in concluding that defendant failed to demonstrate good cause for discovery of Detective Flores’ records. The court could reasonably conclude that defendant failed to set forth “a plausible scenario” of misconduct by Detective Flores “that might or could have occurred” so as to cause Dominguez and Vera to misidentify defendant. (Warrick, supra, 35 Cal.4th at p. 1026.)
II. Wheeler/Batson Motion
During jury selection, the prosecutor used peremptory challenges to excuse three African American jurors – Juror Nos. 4444, 1748, and 1055. At side bar, following the challenge to the last of these jurors (Juror No. 1055), defense counsel made a Wheeler/Batson motion. (People v. Wheeler (1978) 22 Cal.3d 258, overruled in part by Johnson v. California (2005) 545 U.S. 162; Batson v. Kentucky (1986) 476 U.S. 79.) The trial court found a prima facie case and asked the prosecutor to explain her reasons for excusing these jurors. The prosecutor stated her reasons, which we discuss below. Defense counsel did not dispute the veracity of the prosecutor’s explanations. The trial court discussed each reason stated by the prosecutor, and determined each to be credible and race-neutral. The court therefore denied the Wheeler/Batson motion.
Defendant contends that the trial court erred, because “[t]here does not appear to be a race-neutral reason for excusing these three potential jurors.” As we explain, we disagree.
The test for analyzing Wheeler/Batson claims is well-established. “‘First, the trial court must determine whether the defendant has made a prima facie showing that the prosecutor exercised a peremptory challenge based on race. Second, if the showing is made, the burden shifts to the prosecutor to demonstrate that the challenges were exercised for a race-neutral reason. Third, the court determines whether the defendant has proven purposeful discrimination. The ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.... [¶] ‘Review of a trial court’s denial of a Wheeler/Batson motion is deferential, examining only whether substantial evidence supports its conclusions. [Citation.] “... We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court’s ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]” [Citation.]’ [Citation.]” (People v. Taylor (2009) 47 Cal.4th 850, 885-886 (Taylor).)
We discuss each challenged juror in turn.
A. Juror No. 1748
The prosecutor explained that Juror No. 1748 was one of two jurors who raised their hands to signal agreement with the response of another a juror who said he would have a hard time convicting on single witness testimony. According to the prosecutor, she examined Juror No. 1748 further “about his ability to convict on single witness testimony, and he indicated he would not be able to and he would want more. And that was my purpose for challenging... him.” The prosecutor noted that she also excused the other two jurors (a male Asian and a male Caucasian) who voiced concern about convicting on the basis of a single witness.
The trial court reviewed its notes and agreed that Juror No. 1748 had said “several times” that he would want more evidence than testimony of a single witness, and that the prosecutor had excused not only Juror No. 1748, but also the other two jurors who voiced similar views.
The court’s findings that the prosecutor’s reason was credible and race-neutral are clearly supported by the record. Juror No. 1748 did, indeed, indicate that he concurred in the comments of another juror who stated that he would have difficulty convicting a person on the basis of a single witness’s testimony. When the prosecutor specifically asked whether Juror No. 1748 agreed with the premise that testimony of a single witness, if believed, is sufficient to prove any fact, he responded, “I would need a little bit more than just that one person. If it happened to just that one person, there’s a possibility I don’t, you know. But overall I think that I would need a little bit more evidence.” The prosecutor inquired further, asking whether, if a witness testified to all the elements of robbery and was positive in identifying the perpetrator, Juror No. 1748 would still need more to convict. Juror No. 1748 stated that he “still would need more, yes.” Moreover, the prosecutor did, in fact, excuse not only Juror No. 1748, but also the other two jurors who voiced concern over convicting based on the testimony of a single witness.
Thus, substantial evidence supports the court’s finding that the prosecutor’s justification for the excusal was credible and race-neutral. Given that the prosecution case against defendant rested in major part on the eyewitness identifications of Dominguez and Vera, the prosecutor’s concern over Juror No. 1748’s resistance to convicting based on the testimony of a single witness was clearly a rational basis for challenging the juror.
B. Juror No. 4444
As for Juror No. 4444, the prosecutor explained that the juror had revealed at side bar that he had previously been convicted of possession of marijuana. In discussing the case, the juror’s comments, according to the prosecutor, suggested that he had been wrongfully charged. As described by the prosecutor, he said that the case had been “put on him, ” in that an associate of his had possessed the marijuana at an apartment that was in the juror’s name. He also suggested that he had been wrongfully convicted, in that he pled guilty but should have received a lesser charge. Based on the juror’s resentment over his conviction, the prosecutor excused the juror. As the prosecutor explained, the defense in the present case was suggesting that officers conspired to charge defendant and that another member of defendant’s gang was the robber.
The trial court concluded that Juror No. 4444 “did express some residual anger” about his prior conviction, in that “he seemed to feel that his roommate... was to blame and that he was not.” The court found that the juror’s “bad feelings” about the police or his case constituted a valid race-neutral reason for excusing the juror.
The record substantiates the court’s reasoning. At side bar, Juror No. 4444 stated that in 1988 he shared an apartment with a roommate who possessed marijuana in baggies in the apartment. The juror said that “they gave the whole case to me because the place was in my name.” He pled guilty, served 30 days in jail, and was placed on probation. When the court asked if he believed he was treated fairly, he replied: “I think I should have got a lesser case than I got.” He also stated that he did not believe that the experience would affect his ability to be fair.
Certainly Juror No. 4444’s prior bad experience with the justice system (being convicted of a crime he did not believe he committed) was a valid race-neutral reason for the juror’s excusal. This is especially true in the instant case because, as noted by the prosecutor, the defense maintained that the police (in particular, Detective Flores) had framed defendant and that another person had committed the robberies.
C. Juror No. 1055
The prosecutor explained that she excused Juror No. 1055 because “one of the first things she [the juror] said yesterday... was that her brother was stopped [by law enforcement] and that he matched the description of somebody. And he was wrongfully stopped, and she thought it was, quote, ‘ridiculous’ that he was wrongfully stopped.” The juror’s comments concerned the prosecutor because the present case was based on eyewitness identifications: “That is what gave me pause as to whether or not I wanted a juror whose own brother was wrongfully I.D’d. And her opinion was not that the officers were doing their job but that it was ridiculous.”
The trial court found that Juror No. 1055 “did in that one situation seem to suggest some issues about how the police treated her brother, ” and found the excusal race-neutral. The record supports the trial court’s findings. When asked by the court about negative contacts with law enforcement, Juror No. 1055 stated that about six years earlier, she and her brother were running down the street in New York “and the cops stopped him and questioned him because they said he looked like somebody.... And I think it was ridiculous.” When the court asked whether that incident “would slip over into this case, ” she replied that she did not think so.
The court also mentioned another possible reason for the excusal not relied on by the prosecutor – Juror No. 1055’s prior conviction of petty theft.
Thus, the record substantiates the prosecutor’s race-neutral reason for excusing Juror No. 1055: the juror believed it “ridiculous” that her brother was stopped by the police because he purportedly looked like someone else. Given that in the present case the defense intended to attack the eyewitness identifications on the basis that the witnesses’ description of the robber was inconsistent with defendant’s physical appearance, the prosecutor’s reluctance to have Juror No. 1055 on the jury reflected sound trial tactics.
D. Conclusion
As to each juror, the trial court made “a sincere and reasoned effort to evaluate” the prosecutor’s reason. (Taylor, supra, 47 Cal.4th at p. 886.) The court’s findings that those reasons were credible and race-neutral are supported by substantial evidence. We therefore conclude that the trial court properly denied defendant’s Wheeler/Batson motion.
III. Sufficiency of the Evidence
Defendant contends that the identification evidence is insufficient to support the convictions of the Vera and Dominguez robberies. The crux of the contention is that defendant’s physical appearance is inconsistent with the descriptions of the robber given to the police by Vera and Dominguez.
Under the familiar standard for reviewing the sufficiency of the evidence, we must view the entire record in the light most favorable to the judgment. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Here, nothing in the record suggests that Vera’s and Dominguez’s identification testimony was physically impossible or inherently improbable. They had ample time to observe defendant during the robberies. Dominguez’s prior description of the robber (25 to 30 years old, 6 feet, 1 inch to 6 feet, 3 inches tall, weighing about 230 pounds) was largely consistent with defendant (31 years old, 6 feet, 9 inches tall, and 230 pounds.) Although Vera initially described the robber who remained on the bicycle as being 20 years old, 6 feet tall, weighing about 170 pounds, the inaccuracy of his initial description was easily explained by the fact that defendant remained seated on the bicycle during the robbery.
The discrepancies between Dominguez’s and Vera’s descriptions of the robber on the one hand, and defendant’s height, weight, and age on the other, were matters for the jury’s consideration. The jury was presented with the testimony of Dr. Mitchell Eisen concerning factors affecting the reliability of eyewitness identification evidence, and resolved any question about the identification testimony adversely to defendant. We will not second guess the jury’s determination.
Dominguez identified defendant in a photographic lineup, at the preliminary hearing, and at trial. He also recognized the clown tattoo on defendant’s forearm. Similarly, Vera identified defendant in a photographic lineup, at the preliminary hearing, and at trial, and recognized defendant’s clown, clover, and fist tattoos. This testimony was more than sufficient to convict.
IV. Evidence of Third Party Culpability
In her direct examination of Ciji Perkins, defense counsel asked whether “people that live in the neighborhood... tell you various stories and stuff like that?” Perkins answered, “Yes.” The prosecutor made a hearsay objection, and at side bar defense counsel made the following offer of proof: “[T]here’s... allegedly a member of the Rollin 40’s gang who rides around on a bicycle. He’s extremely tall and thin and... robs kids of their little electric things and sells them in the neighborhood. His name is Jared Night..., and his aka is Stretch.... Ms. Perkins has indicated to me that lots of people come up to her and ask her... when is [defendant] going to get out of jail for the robberies that Stretch did.” The trial court excluded the proposed testimony as hearsay.
On appeal, defendant contends that the trial court erred in excluding Perkins proposed testimony. He does not dispute that it would have been hearsay, but rather contends that under Lunbery v. Hornbeak (9th Cir. 2010) 605 F.3d 754, exclusion of the proposed testimony on the ground of hearsay violated his Sixth Amendment right to present a defense. He is incorrect.
The proposed testimony here amounted to no more than street rumor -- lots of people had come up to Perkins to ask when defendant would get out of jail for robberies committed by Stretch. It bears no resemblance to the excluded evidence in Lunbery, which “bore substantial guarantees of trustworthiness.” (Id. at p. 761.)
In Lunbery, the petitioner sought habeas corpus relief on the basis that the California courts violated her Sixth Amendment right to present a defense in her trial for the murder of her husband by excluding testimony by a witness who heard Henry Garza, dead at the time of trial, state that he and his partners had killed her husband in error, mistaking him for the person who had cheated them in drug dealing. (605 F.3d at p. 757.) The Ninth Circuit held that exclusion of Garza’s statement deprived defendant of the right to present a defense because the “excluded testimony... bore substantial guarantees of trustworthiness and was critical to [defendant’s] defense.” (Id. at p. 761.) The statement was trustworthy because “the incriminating statement was corroborated by other evidence in the case: (1) an acquaintance of [defendant’s] indicated that Garza and the former tenant of [defendant’s] home, Frank Delgado, were involved in drug deals together and had been seen in the house with $ 40, 000 worth of illegal drugs, (2) a confidential informant told police three days after the murder that Delgado had been the intended victim because he had ripped off several people in drug deals, and (3) a neighbor saw a car linked to both Garza and Delgado on the street in front of [defendant’s] house a few hours before the murder.” (Ibid., fn. omitted.)
Here, in stark contrast to Lunbery, Perkins’ proposed testimony contained no guarantees of trustworthiness tending to prove that Stretch committed the charged crimes. Indeed, Perkins’ testimony itself had little probative value in proving Stretch’s guilt – she would have testified only that persons she encountered on the street had asked when defendant would be released for the robberies committed by Stretch. These persons were not identified, and the basis for their purported knowledge that Stretch robbed Dominguez and Vera was unknown. Thus, Perkins’ testimony had no “substantial guarantees of trustworthiness” (Lunbery, supra, 605 F.3d at p. 761), and its exclusion was proper.
Defendant’s claim that the proposed testimony was corroborated in defendant’s alibi defense, the discrepancies between his physical appearance and the descriptions given by the robbery victims, and Detective Flores’ purported targeting of defendant, misses the point. Such evidence has no tendency at all to prove that Stretch committed the charged robberies, and thus is not the kind of corroborating evidence sufficient to give Perkins’ proposed testimony the guarantees of trustworthiness required by Lunbery.
V. Prosecutorial Misconduct
Defendant contends that a pattern of prosecutorial misconduct deprived him of a fair trial. The claim is meritless. We discuss each alleged incident of misconduct, below.
A. Bicycle Photographs
During a break in the first day of testimony, the prosecutor stated that she had just learned from Detective Flores that there were photographs of two bicycles Flores had seen when executing the search warrant at Ciji Perkins’ residence. Later, Detective Flores provided the prosecutor with the photographs, which the prosecutor shared with defense counsel and the court. One of the bicycles depicted was black (the color of the bicycle in the Dominquez robbery) and the other was a rusty, faded silver color (Vera described the bicycle defendant rode as chrome colored).
Defense counsel objected to use of the photographs at trial. The trial court overruled the objection, finding the failure to disclose unintentional. Thereafter, Detective Flores testified to observing the bicycles at Perkins’ residence and identified the photographs. Under cross-examination by defense counsel, he testified that the photographs had been on a disk and he had not provided them to the prosecutor until after the trial started. He admitted that in his report of the search of Perkins’ residence, he had not included any mention of the bicycles. Later, in the defense case, Perkins testified that she had never seen the bicycles depicted in the photographs. Finally, included in the instructions the court gave the jury at the close of the case was an instruction on the late discovery of the photographs: “Both the People and the defense must disclose their evidence to the other side before trial, within the time limits set by law. Failure to follow this rule may deny the other side the chance to produce all relevant evidence, to counter opposing evidence, or to receive a fair trial. An attorney for the People failed to disclose: photos of two bicycles within the legal time period. In evaluating the weight and significance of that evidence, you may consider the effect, if any, of that late disclosure.”
Defendant contends that the prosecutor’s late disclosure of the photographs constituted misconduct. But he failed to object on the grounds of misconduct at trial, and therefore has forfeited the claim. (People v. Prince (2007) 40 Cal.4th 1179, 1294 (Prince).) In any event, there was clearly no misconduct. “‘A prosecutor’s conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’ [Citation.]” (People v. Hoyos (2007) 41 Cal.4th 872, 923 (Hoyos).) Here, the late disclosure of the bicycle photographs did not render the trial fundamentally unfair, especially given defense counsel’s ability to cross-examine Detective Flores about the photographs, Perkins’ testimony that she had never seen the bicycles, and the court’s giving an instruction on the late discovery of the photographs. Thus, there was no violation of defendant’s federal constitutional rights. Moreover, there was no prosecutorial misconduct under state law. The evidence did not suggest bad faith, and the trial court found that the failure to disclose was unintentional. (Hoyos, supra, 41 Cal.4th at pp. 924-925, & fn. 36 [rejecting state-law claim of prosecutorial misconduct in failing to disclose evidence, based on trial court’s finding, supported by the record, that the failure was not intentional].)
B. Vera’s Testimony About Defendant’s Clover Leaf Tattoo
Before opening statements, defense counsel told the court, in substance, that she had just been informed by the prosecutor that Vera recently said in an interview that when he observed defendant on the street after the robbery, he noticed “other tattoos... that he never mentioned before.” Defense counsel objected to Vera being allowed to testify concerning the additional tattoos. The trial court overruled the objection. Later, when Vera testified about observing defendant after the crime, the only additional tattoo he mentioned observing was defendant’s tattoo of a four-leaf clover.
Defendant contends that the prosecutor committed misconduct by not disclosing Vera’s observation of the tattoo earlier. Again, he forfeited the claim by failing to object on the ground of misconduct in the trial court. (Prince, supra, 40 Cal.4th at p. 1294.) In any event, he fails to explain how the prosecutor committed misconduct or violated any duty of disclosure. There was no violation of the prosecutor’s duty to disclose exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83, because Vera’s observation of defendant’s clover leaf tattoo was not exculpatory. And there was no violation of the prosecutor’s duty of disclosure under state law, because (as here relevant) that duty extends only to “[r]elevant written or recorded statements of [prosecution] witnesses.” (§ 1054.1, subd. (f), italics added.) Vera’s statement, however, was not written or recorded, and had only recently been made in an interview. Further, there was no evidence of misconduct under either the standard of the federal constitution (conduct resulting in a fundamentally unfair trial) or the state standard (use of deceptive or reprehensible methods to sway the jury or court).
C. Leading Questions
Defendant contends that in examining Dominguez and Vera, the prosecutor committed misconduct by asking leading questions. But he forfeited the contention by failing to object on the ground of misconduct in the trial court. (Prince, supra, 40 Cal.4th at p. 1294.) In any event, the contention of misconduct is unsupported by the record. Defendant does not challenge the trial court’s rulings, which in some instances permitted the questions and in others sustained defense counsel’s leading-question objections. Having reviewed the instances cited by defendant, we fail to see how the prosecutor’s occasional asking of an objectionable leading question amounts to prosecutorial misconduct as opposed to mere evidentiary error that was corrected by the trial court.
D. Rustling Papers, Talking, and Laughing
On one occasion, defense counsel stated: “My client has noted that, while I am cross-examining witnesses, ... counsel and Detective Flores are speaking sotto voce and giggling. And it appears to be disrespectful to me, although I don’t see it because I’m not looking at them, and the jury is taking note of that.” The trial court stated that it had observed the prosecutor talking to Detective Flores, but not giggling, and cautioned the prosecutor not to converse in a way that might distract defense counsel.
Later, when she was examining Ciji Perkins, defense counsel complained that the “rustling and stamping of papers” was interfering with her ability to hear the witness. The prosecutor explained that she was retrieving a paper and apologized.
Defendant elevates these minor incidents to the level of prosecutorial misconduct, asserting that “the chatter and rustling of papers by the prosecution team hampered defense counsel’s ability to represent [defendant] and derailed her train of thought.... It also distracted the jurors and hampered their ability to hear the evidence presented at trial.” The record does not support the assertion. In the first incident, defense counsel did not notice the conduct in question, and hence was not affected by it. As to the second incident, although defense counsel mentioned her momentary distraction, nothing suggests that she was hampered in her ability to elicit all the admissible testimony she wished from Perkins. Further, there is no evidence in the record to support the assertion that these two incidents affected the jury’s ability to listen to the evidence. The claim of misconduct, and of prejudice, is unfounded.
In connection with contending that the jurors were distracted, defendant also asserts that two jurors were sleeping during trial. This assertion is based on defense counsel informing the court at side bar that defendant had informed her that Juror Nos. 5 and 6 appeared to be sleeping. The court stated that it had not noticed the jurors sleeping and “so I didn’t want to adopt the defendant’s observations, ” but the court stated that it would “look for” such conduct in the future. In open court, the court then instructed the jurors about the importance of paying attention. The subject of sleeping jurors is not mentioned again in the record of the trial. Thus, the record is, at best, ambiguous as to whether Juror Nos. 5 and 6 were sleeping, and does not support any assertion of prejudice to defendant.
E. Cross-Examination of Perkins
At trial, Ciji Perkins admitted that she knew members of the 40’s Crips, but denied being a member of the gang and denied that she was friends with any 40’s Crips member, including a woman named Alonna Polite. On cross-examination, in an attempt to impeach her, the prosecutor asked, “[A]ren’t you on probation for getting in a gang fight for the 40’s with Alonna Polite and other--.” Perkins interrupted to state that Alonna Polite was not involved. At side bar, defense counsel objected. The prosecutor produced a police report of the incident, which indicated that the fight involved 40’s Crips, and also produced Perkins’ rap sheet, which showed a misdemeanor battery conviction arising out of the incident.
The court sustained defense counsel’s objection only as to the portion of the prosecutor’s question referring to Perkins being on probation. The court ruled the misdemeanor conviction inadmissible, but, because Perkins had categorically denied being a gang member and having friends who were gang members, the court permitted the prosecutor to examine Perkins about the underlying facts of the fight. In open court, the court instructed the jury to “disregard any statement or any comment in the question of the prosecutor about probation.”
The prosecutor then examined Perkins about being involved in a fight on August 8, 2008. Perkins admitted being present when the fight occurred and stated that she had been “held accountable for what was going on because I was there, ” but denied being involved in the fight. When asked whether she had screamed “40’s bitch” during the fight, she denied it, and stated that “All I was doing was looking. That’s what I went to jail for, was looking, because I knew these people.” Perkins was later impeached by Detective Flores, who testified without objection that Perkins participated in the fight by jumping out of a vehicle with three other people (two of whom belonged to the 40’s Crips), yelling “40’s Bitch, ” and beating two women.
Defendant contends that the prosecutor committed misconduct by asking Perkins whether she was on probation and by purportedly impeaching her with a misdemeanor conviction. We agree that, although the gang related nature of the fight was admissible impeachment, the fact that Perkins was on probation was not. Nonetheless, that “brief and fleeting reference[] [was] not so intemperate, egregious, or reprehensible as to constitute prosecutorial misconduct under state law or federal constitutional law” (People v. Mills (2010) 48 Cal.4th 158, 199), and any harm was cured by the court’s instruction to the jury to disregard it. Moreover, although Perkins testified that she had been “held accountable” and “went to jail, ” she volunteered that information. It was not responsive to the questions that preceded the testimony, which in no way referred to her prior conviction. We find no misconduct, and no cognizable prejudice caused by the prosecutor’s questioning.
E. Cross-Examination of Defense Expert
Dr. Mitchell Eisen, a forensic psychologist, testified for the defense concerning factors affecting the reliability of eyewitness identification evidence. In her cross-examination, the prosecutor asked Dr. Eisen whether he had ever been the victim of a crime. Defense counsel objected, and at a side bar conference the prosecutor represented that Dr. Eisen had been asked that question “at least four times in the past, ” and answered it by saying that he had not been the victim of a crime. The court overruled the objection, reasoning that if Dr. Eisen had never experienced being the victim of a crime, that fact was relevant in evaluating his opinion concerning the unreliability of eyewitness identification.
In open court, the prosecutor asked Dr. Eisen if he had ever been the victim of a violent crime. He replied that he had been the victim of a home invasion.
Out of the jury’s presence, the prosecutor referred to a transcript of a prior proceeding at which Dr. Eisen was asked whether he had ever witnessed a violent crime, and replied that he had not. The prosecutor apologized for any misrepresentation in her description of his prior testimony as saying that he had denied being the victim of a crime as opposed to witnessing such a crime. The court was critical of the prosecutor’s earlier offer of proof, and later instructed the jury that the prosecutor’s question was improper.
Defendant contends that the prosecutor committed misconduct by asking Dr. Eisen if he had ever been the victim of a crime. But he fails to explain how, on the entire record, the brief incident rises to the level of misconduct, i.e., conduct rendering the trial fundamentally unfair (federal constitutional standard) or deceptive or reprehensible conduct to sway the court or the jury (state standard). Dr. Eisen’s answer that he had been the victim of a home invasion in no way undercut the force of his testimony concerning factors affecting the reliability of eyewitness identification testimony. Indeed, given that he himself had been the victim of a crime, the jury would likely infer that his opinions were informed not just by academic study, but by personal experience. We also note that the prosecutor’s misunderstanding of Dr. Eisen’s prior testimony does not appear to have been consciously deceptive or reprehensible. Given Dr. Eisen’s prior testimony that he had never witnessed a violent crime, it could reasonably be expected that he had also never been the victim of a violent crime, because the victim of a violent crime (other than murder) is also generally a witness to that crime. In any event, the question and answer certainly did not prejudice defendant, especially given the trial court’s instruction to the jury that the preceding question by the prosecutor was improper.
As additional related misconduct, defendant refers to a colloquy between the court and the prosecutor in which the court admonished the prosecutor not to keep trying to make a record after the court had ruled. We fail to see how this colloquy presents a cognizable claim of misconduct. The colloquy occurred outside the jury’s presence, did not involve defendant or the defense case, and could not have influenced the outcome of the trial.
F. Questioning Detective Flores
In questioning Detective Flores in her rebuttal case, the prosecutor asked whether he remembered the prosecutor being present when Ciji Perkins was detained at the preliminary hearing to determine whether she had used her cell phone to take photographs of victims Vera and Dominguez. The court interrupted to warn the prosecutor, “[Y]ou cannot make yourself a witness in this case.”
Defendant characterizes the court’s comment as finding that the prosecutor was seeking to give unsworn testimony, and cites the incident as misconduct. However, defendant misunderstands the court’s comment. The court’s concern was not that the prosecutor was seeking by her question to provide unsworn testimony; she clearly was not. The court’s concern was that she might become a witness, if she elicited testimony that she was present at the incident. Regardless, the prosecutor’s question certainly did not constitute misconduct.
G. Rebuttal Argument
Defendant contends that the following comments the prosecutor made in her rebuttal argument constituted prejudicial misconduct.
1. Characterizations of Defense Counsel’s Argument
The prosecutor commented that defense counsel had attacked every prosecution witness as a liar. Finding the comment “a slight overreach” and not “an accurate assessment, ” the trial court sustained defense counsel’s objection. Defendant contends that the comment was misconduct, because it bolstered weaknesses in the prosecution’s case by mischaracterizing defense counsel’s argument. We fail to see how the comment filled any supposed hole in the prosecution’s case. Moreover, the comment was clearly not misconduct. While it is true that defense counsel did not call every prosecution witness a liar (there were minor witnesses who escaped such treatment), she accused the primary witnesses of fabricating evidence. She strongly suggested that Dominguez had knowingly tailored portions of his testimony (such as mentioning seeing a scar on defendant’s forehead) based on seeing defendant in court. She described Vera’s testimony of seeing defendant after the crime as “clearly absurd, clearly manufactured for this trial.” She attacked Detective Flores’ testimony about seeing bicycles at Perkins’ residence in terms suggesting that he fabricated his testimony and lied about the photographs. Thus, although the prosecutor’s comment that defense counsel attacked every prosecution witness as a liar was not literally correct, it was correct as to the primary witnesses, and certainly the comment was not misconduct under either the standard of the federal constitution (conduct resulting in a fundamentally unfair trial) or the state standard (use of deceptive or reprehensible methods to sway the jury or court).
2. Comments About Perkins’ Cell Phone
The robberies occurred on May 29, 2008. The trial was held approximately one-year later, May 26 to June 1, 2009. At trial, Ciji Perkins testified that she used her cell phone to take photographs of defendant at her residence on dates before and after the robberies. To show defendant’s appearance and also to corroborate her alibi testimony, she identified copies of eight photographs as coming from her cell phone, the first one apparently dated April 12, 2008 and the last dated July 7, 2008. One was dated May 30, 2008, the day after the robberies. While on the witness stand, she also produced her cell phone from her purse, and testified, under questioning by the court, that she had retrieved the date and time of the photographs from the phone herself, and that “there’s no way” a person could manipulate the dates and times.
In her rebuttal argument, the prosecutor commented on this evidence: “The phone is unreliable. Where has it been for the last year? Do we know?... Ciji Perkins gets off the stand and out of her purse pulls... exonerating evidence, a rabbit out of a hat. This is my alibi. It’s been sitting in my purse. We’re supposed to rely on that? Why are we even here? We should all go home. We have a phone that was sitting in Ms. Perkins’s purse for who knows how long that has these pictures on it.”
At sidebar, defense counsel objected to the comments as “completely illegitimate, ” because “the fact of the pictures, the dates – was given to the D.A. several months ago, ” and the argument implied that the phone was “never presented before.” The prosecutor explained that defense counsel had presented the phone to her a month ago, not several months ago, and that the thrust of her argument was that because the phone had been in Perkins’ possession it was not a reliable source by which to fix the dates of the photographs. The court interpreted the prosecutor’s comments to suggest that Perkins “appeared with [the phone] mysteriously at the trial, ” and concluded that the comments were improper because the prosecutor had been presented with the phone a month earlier. At the strong urging of the court, the parties entered a stipulation before the jury that “the phone in question, the phone of Ms. Perkins, was shown to the prosecutor 30 days ago.” The prosecutor then continued her argument, explaining that she did not intend to mislead the jury, and that her point was that Perkins had been in possession of the phone and that the defense could have removed “any taint of manipulation” by having a third party such as a defense investigator take possession of it.
Defendant cites this incident as misconduct. We disagree. Although the prosecutor’s initial comments might have suggested that Perkins produced the cell phone for the first time at trial, any such suggestion was dispelled by the stipulation that the phone had been presented to the prosecutor a month earlier. Moreover, the argument that the authenticity of the date and time of the photographs could be questioned because Perkins had kept possession of the cell phone was within the permissible “wide latitude to discuss and draw inferences from the evidence.” (People v. Lucas (1995) 12 Cal.4th 415, 473.)
The prosecutor also mentioned “testimony [that] we were forced to look at her phone [at the preliminary hearing] to make sure there were no photos of the victims on it.” The court sustained a defense objection on the grounds that the argument “assume[d] facts not in evidence.” Defendant cites this incident as additional misconduct. However, although the trial court sustained the defense objection, the comment was based on the evidence at the trial. Perkins testified that Detective Flores detained her at the preliminary hearing for allegedly taking photographs of Vera and Dominguez (“the two children that were... in this case”) and checked her cell phone, but found no such photographs. She also testified that at the preliminary hearing the prosecutor told the judge that the prosecution needed to take her phone and check out the pictures. Moreover, on cross-examination of Detective Flores, defense counsel elicited testimony that Detective Flores had approached Perkins at court about an accusation that she had taken photographs of Vera and Dominguez. Detective Flores explained that Perkins “was accused by somebody else of taking photos of the victims. I merely was detaining her to see if that was true or not.” Thus, despite the court’s ruling, the prosecutor’s comment was based on evidence presented at trial and, at the very least, did not constitute misconduct.
As another incident of supposed misconduct, defendant cites the prosecutor’s later comment, “Where’s the evidence that the date and time [of the photographs, as indicated by Perkins’ cell phone] can’t be manipulated?” Defense counsel objected to the comment, and at side bar argued that the prosecutor had “represented to me she was not going to question the authenticity of the phone at trial.” Defense counsel complained that if she had known the prosecutor would make this argument, she would have had an expert witness testify concerning the authenticity of the dates and times of the photographs as indicated by the cell phone. The prosecutor stated that she had represented only that she “and the people in [her] office” had no idea how the phone could be manipulated. Noting that the record did not reflect a representation by the prosecutor not to challenge the authenticity of the date and time of the photographs, and that the defense could have presented additional evidence on the point, the court overruled the objection. Thus, the record does not support any argument that the prosecutor’s challenging the authenticity of the date and times of the photographs was somehow improper.
3. Remaining Incidents
The remaining incidents of alleged misconduct cited by defendant require only brief mention.
The prosecutor’s comments accusing Ciji Perkins of lying and committing perjury fell within the scope of permissible argument. (People v. Earp (1999) 20 Cal.4th 826, 862-863 [prosecutor may argue “in colorful terms” that defense witnesses should not be believed].)
Nothing in the record supports defendant’s claim that the prosecutor misstated the law by using a chart that paraphrased certain jury instructions. The court found no misstatement, but nonetheless, in an abundance of caution, instructed the jury that the chart merely paraphrased the law and was not an instruction from the court.
The prosecutor argued that the defense would have presented evidence of complaints about Detective Flores if there were any. Defendant’s challenge to this comment was forfeited by the failure to timely object and request an admonition. (People v. Huggins (2006) 38 Cal.4th 175, 205.) Defense counsel mentioned the comment only later at side bar, but did not expressly object and requested no admonition. In any event, although we question whether the argument was proper, given that defendant’s pretrial Pitchess motion concerning Detective Flores was denied, we find no prejudicial misconduct. The comment was only a brief portion of the prosecutor’s argument that Perkins’ testimony about her and defendant being harassed by Detective Flores was unsupported.
H. Cumulative Prejudice
Defendant contends that the prosecutor’s “pattern” of misconduct created cumulative prejudice requiring reversal. We have found no misconduct, much less a pattern of misconduct, and thus there can be no cumulative harm to be examined.
Defendant also asserts that all the other purported errors at trial, considered cumulatively, require reversal. But, as we have explained, his other claims of error are meritless.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.