Opinion
C088993
12-29-2020
THE PEOPLE, Plaintiff and Respondent, v. ADRIAN CALDERON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17FE014783)
This case involves a near-fatal shooting that occurred during a fight at a nightclub in downtown Sacramento in the early morning hours of August 11, 2017. A jury found defendant Adrian Calderon guilty of attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664), two counts of assault with a semiautomatic firearm (§ 245, subd. (b)), unlawful possession of a firearm by a felon (§ 29800, subd. (a)(1)), and intimidating a witness (§ 136.1, subd. (a)). The jury also found true the firearm enhancement allegations (§§ 12022.5, subds. (a), (d), 12022.53, subds. (c), (d)) and the allegation that defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found true the allegation that defendant had a prior serious felony conviction (§ 667, subd. (a)) and strike under the three strikes law (§§ 667, subds. (b)-(i), 1170.12). The court sentenced him to an aggregate term of 35 years and four months in prison. This timely appeal followed.
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends, and the People concede, that his conviction for intimidating a witness must be reversed due to insufficient evidence. Defendant additionally contends that reversal is required due to evidentiary error, prosecutorial misconduct, denial of his request for a continuance, denial of his motion for new trial, and cumulative error. Finally, defendant contends, and the People concede, that the trial court erred in calculating his custody credit. We will reverse defendant's conviction for intimidating a witness and modify the judgment to reflect that defendant is entitled to 646 days of custody credit. We affirm the judgment as modified.
FACTUAL BACKGROUND
The Shooting
In August 2017 defendant and Gregory Grimes were regular patrons at the Parlare nightclub in downtown Sacramento. They did not know each other and neither man had a history of causing any problems at the club.
Defendant knew the owner of the club and most of the employees, including the head of security and the security guards. He spent a lot of money at the club and received special treatment. He was allowed to park in front of the club and given a VIP booth when he arrived. On occasion, VIP's and regulars like defendant were not patted down or "wanded" with a metal detector prior to entering the club.
At some point during the late evening hours of August 10, 2017, or the early morning hours of August 11, 2017, defendant and Grimes arrived separately at Parlare. The club was very busy that night; more than 300 people entered the club throughout the night. At that time, defendant was five foot seven inches tall and weighed 165 pounds. Grimes was much bigger; he was six feet tall and weighed 310 pounds.
Over the course of the evening, Grimes became intoxicated and very difficult to deal with. At one point, he lost his hat and was "real aggressive" with one of the security guards, Michael Olson.
Around 1:45 a.m., the lights in the club were turned on and the music was turned off, signaling that the club would be closing soon. At that time, there were about 150 to 175 people inside the club. Another of the security guards, Nathan Higgins, offered to escort defendant out the back door so he could avoid the crowd headed toward the front door. Defendant declined the offer because he needed to use the bathroom. Thereafter, Higgins observed defendant walking toward the bathroom with a female.
Meanwhile, as Grimes and others were leaving the club, Grimes realized that he did not have his cell phone and decided to return to the area where he had been sitting to look for it. He turned around and began walking against the flow of the crowd. At that time, Higgins observed that Grimes was so intoxicated he was stumbling. Higgins radioed the other security guards and warned them to "be mindful" of Grimes.
As Grimes was making his way through the crowd, defendant "grazed" his shoulder. In response, Grimes "aggressively" threw his shoulder into defendant's shoulder. Defendant asked Grimes if he was "okay" and told him to "calm down." Grimes appeared to say something to defendant and then punched him in the face. At that point, Higgins, who had been slowly walking toward the two men, grabbed Grimes from behind and attempted to restrain him. Higgins placed his left hand on Grimes's left shoulder and his right arm around Grimes's neck. As Higgins was pulling Grimes away from defendant, he saw defendant holding a gun and then heard a gunshot. Olson also saw defendant with a gun and then heard a gunshot. According to Olson, defendant's arm was fully extended when he pulled the trigger. Higgins estimated that defendant was about three to five feet away from him when the gun was fired. Olson estimated that defendant was approximately 15 feet away from him when the gun was fired. Neither Higgins nor Olson saw where the gun came from.
Olson testified that he saw Grimes "throw" at least two punches. Higgins only saw one punch.
The bullet struck the left side of Grimes's neck and Higgins's right hand. Chaos ensued inside the club; people started screaming and running toward the exit. Grimes, wounded, ran out the back door of the club and down the street; his friend called 911. Defendant ran out the front door of the club and fled the area in his car.
Relevant Events Following the Shooting
Police officers arrived within minutes. Higgins, who was familiar with defendant, identified him as the shooter.
Grimes was taken to the hospital by ambulance. He suffered a penetrating wound to his neck that caused soft tissue damage. The bullet missed his carotid artery and spinal cord by less than an inch. Two bullet fragments were not removed from his neck because it was determined that doing so would cause more damage than leaving them in place. Grimes was treated for his injuries and released the following day. He testified that he was unable to move his head for a month.
Higgins was also taken to the hospital by ambulance. He suffered fractures to the middle finger and thumb on his right hand. The bullet passed through the middle knuckle of his middle finger and struck his thumb. A seven-hour surgery was performed but the surgeon was unable to reconstruct Higgins's middle finger. Higgins lost the knuckle as well as seven millimeters of length on that finger and some padding on his right thumb. He was released from the hospital two days later. At the time of trial, he could not make a fist with his right hand and testified when asked that he had difficulty opening jars and throwing a ball.
When Higgins spoke with a police officer at the hospital, he confirmed that defendant was the shooter. He gave a detailed description of defendant and the events surrounding the shooting, including describing Grimes as the initial aggressor.
A single .45-caliber shell casing was found at the scene. A criminalist with the Sacramento County Crime Lab determined that the shell casing was ejected from a semiautomatic or automatic handgun, most likely a Glock brand .45-caliber handgun. The gun was not recovered by the police.
On August 16, 2017, Higgins was interviewed by a detective with the Sacramento Police Department. Higgins described the events surrounding the shooting and confirmed his earlier statements that defendant was the shooter. The next day, Olson was interviewed by the same detective. Olson identified defendant as the shooter from a photographic lineup, explaining that he recognized defendant as a regular at the club.
On August 17, 2017, defendant was arrested in Las Vegas, Nevada. Later that same day, he placed a jail phone call to his then-wife. During the call, he said: "I'm done, man. I'm fixing to be gone for good years for attempted murder at Parlare."
Grimes's Trial Testimony
Grimes did not identify defendant as the shooter at trial. When he was asked if he saw the person he "encountered" on the night of the shooting in the courtroom, he said, "I do not recall his face." Grimes described the shooter as "significantly shorter" than him and "light skinned."
Grimes testified that a man became upset with him at the club because he thought he had been pushed or bumped by Grimes. Grimes claimed that he tried to calm the man down and defuse the situation but the man did not listen. The man swore at him, threatened to shoot him, and then pulled out a gun. At that moment, Grimes punched the man in the face. As the man was stumbling backwards, the man fired one shot at Grimes's face.
When Grimes was interviewed by two detectives, he claimed that he punched a man at the club as the man was pulling out a gun. Grimes did not mention that he saw the gun before punching the man. He did not say then that the man threatened to shoot him. According to one of the detectives, Grimes was not "100 percent forthcoming" in his interview and "didn't really want to [be interviewed]."
Defendant's Testimony
Defendant testified on his own behalf. He claimed that he did not bring a gun into the club on the night of the shooting, and the shooting was an accident that occurred during a struggle with Grimes over control of Grimes's gun. During his testimony, defendant confirmed that he was a regular patron of the club. He noted that he knew the owner of the club and most of the employees, including the head of security, Daniel Brito, and security guards Higgins and Olson.
Defendant testified that he arrived at the club around midnight with his friend, Erika Mendoza, who was carrying a small clutch purse. Prior to entering the club, he and Mendoza were "wanded" by a metal detector and patted down in the presence of Brito. He and Mendoza ordered drinks and danced. At closing time, Higgins offered to escort him out the back door but he declined because Mendoza needed to use the bathroom. As he and Mendoza were walking toward the bathroom, Grimes bumped him "kinda hard" from behind, "like a shoulder check." When defendant asked Grimes if he was "okay," Grimes said, "Watch out, bitch." Defendant told Grimes to calm down. In response, Grimes "shoulder check[ed]" defendant a second time and then threatened to kill him in front of his "girl." Grimes then demanded defendant's Rolex watch and threatened to kill him in front of his "bitch" if he failed to comply. At that point, Grimes lifted up his shirt, revealing a gun in his waistband. Defendant, again, told Grimes to calm down. In response, Grimes punched defendant in the face and then "dropped his hand to his gun." At that point, defendant reached for Grimes's gun and a struggle ensued. During that "[q]uick struggle," the gun "goes off."
On cross-examination, defendant claimed that Mendoza was in the bathroom at the time of the shooting. According to Higgins, a female was standing next to defendant when the altercation with Grimes occurred. It is unclear from the record whether the female Higgins observed was Mendoza.
Defendant claimed that his finger was not on the trigger when the gun was fired, and that the firing of the gun was an accident. He explained that he was not trying to shoot the gun; rather he was trying to push it away from his face and body when it fired. After the shooting, the gun dropped to the ground. Defendant ran out the front door of the club, briefly stopped and told Brito that there had been a shooting, and then fled the area in his car. When asked, defendant explained that he did not call the police because he did not believe he had done anything wrong. A day or two later, his friend drove him to Las Vegas.
When Higgins spoke to a defense investigator, he was asked whether it was possible that defendant had shot Grimes after obtaining a gun from Grimes's waistband during a struggle. Although Higgins acknowledged that this scenario was possible, he stated that it was "[h]ighly unlikely." Higgins noted that he saw nothing consistent with such a scenario.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends, and the People concede, that his conviction for intimidating a witness (§ 136.1, subd. (a)) must be reversed due to insufficient evidence. We agree.
A. Standard of Review
" 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citation.] We determine 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' [Citation.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Edwards (2013) 57 Cal.4th 658, 715.)
B. Additional Background
On February 24, 2018, Higgins received a phone call from a man he did not know. In summary, the man told Higgins that he was calling on behalf of defendant and wanted Higgins to contact the police and recant his identification of defendant as the shooter. The man told Higgins to "meditate, to rethink everything, think really clearly about it and try and think things over." The man told Higgins that "they would take care of [him]" if he retracted his statement to the police about the identity of the shooter.
After the phone call, Higgins immediately contacted a detective with the Sacramento Police Department. When Higgins spoke to the detective, he indicated that he had been offered money to change his story about the shooting. Higgins gave the detective the phone number of the man who had called him. Thereafter, the detective determined that the number belonged to Arturo Azevedo.
On March 6, 2018, police officers conducted a probation search of Azevedo's residence. During that search, an officer looked through Azevedo's cell phone and determined that he had called Higgins on February 24, 2018. Inside the residence, the officers found two letters written by defendant. Both letters were read to the jury by a detective.
The first letter contained instructions to "WHOEVER IS GOING TO HELP ME?" and asked the reader to contact Higgins and give him a letter and offer him money to "do[] the right thing" and testify that he had made a mistake in identifying defendant as the shooter. The letter continued with instructions to tell Higgins "he would be saving a life, and I would be in his debt for life. Tell him I have kids that need me and a family that needs me. Tell him they have nothing on me besides his statement and that if on my preliminary hearing court date, he gets on the stand and says he made a mistake that is not me, and that now that he thought about it I was just in the area but I was not the shooter! I will get out and him and his family will be set for life!" The letter concluded with instructions to have Higgins sign the letter and give him the money "if he says yes he will do it," followed by a reference to family in law enforcement and offer to assist Higgins in passing a background check.
The second letter, which was addressed to Higgins, asked him "with love honor and the utmost respect" "to tell the truth!, and tell them it was not me! You were misunderstood about what happened that night, and saying it was me." The letter continued: "I trust you are smart and a good man and will make the right decision. If you need a lawyer I got you. Like I said if you need anything I mean anything at all I got you!" and again concluded with the offer to have family in law enforcement ensure a successful background check.
During the investigation into the shooting, a detective learned that defendant had made a jail phone call to Azevedo on February 24, 2018. In that call, Azevedo told defendant that he "made that phone call I had to make and everything and it's like 100% solid." Defendant instructed Azevedo to write down what the "dude" (i.e. Higgins) had said and then relay the message to him. In response, Azevedo said, "she's gonna write it down and . . . talk to you tomorrow about it." The next day, a woman visited defendant and they discussed the phone call Azevedo had made to Higgins. The woman brought defendant a note written by Azevedo discussing the content of the call.
At trial, defendant testified that the purpose of the letter addressed to Higgins was to persuade him to tell the truth and say defendant was not the shooter.
C. Analysis
The operative pleading charged defendant in count five with intimidating a witness (Higgins) in violation of section 136.1, subdivision (a)(1). That provision prohibits a person from "[k]nowingly and maliciously prevent[ing] or dissuad[ing] any witness or victim from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." (§ 136.1, subd. (a)(1).) "The crime of intimidating a witness requires proof that the defendant specifically intended to dissuade a witness from testifying." (People v. Young (2005) 34 Cal.4th 1149, 1210.) Section 136.1, subdivision (a) applies when a defendant prevents or dissuades a witness from giving testimony or attempts to do so. By contrast, section 137 applies when a defendant makes efforts to change the contents of a witness's testimony. (§§ 136.1, subd. (a)(1)-(2), 137, subds. (a)-(c); People v. Fernandez (2003) 106 Cal.App.4th 943, 949-950; People v. Womack (1995) 40 Cal.App.4th 926, 930-932.)
Subdivision (a)(2) of section 136.1 prohibits a person from "[k]nowingly and maliciously attempt[ing] to prevent or dissuade any witness . . . from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." (Italics added.)
As the People concede, the evidence adduced at trial showed that defendant attempted to influence or shape the content of Higgins's testimony rather than attempt to prevent or dissuade him from testifying entirely. The record shows that defendant attempted to persuade Higgins to change his story about the shooting by saying that defendant was not the shooter. Higgins was not persuaded. At trial, Higgins identified defendant as the shooter, which was consistent with his pretrial statements. At the close of trial, the jury was instructed pursuant to a modified version of CALCRIM No. 2622, the pattern instruction related to intimidating a witness in violation of section 136.1, subdivision (a). The jury was told that defendant was guilty of violating section 136.1, subdivision (a) if he "maliciously tried to prevent or discourage Nathan Higgins from giving testimony at the preliminary hearing and/or trial in this case." In closing argument, the prosecutor erroneously argued that defendant had the requisite intent to be convicted of violating section 136.1, subdivision (a) because his conduct showed that he intended to interfere with the content of what Higgins would say at trial. (See People v. Fernandez, supra, 106 Cal.App.4th at p. 948-950 [an effort to change the contents of a witness's testimony is governed by section 137, not section 136.1, subdivision (a)].) Under the plain text of the statute, criminal liability only attaches when a defendant "knowingly and maliciously prevents or dissuades any witness or victim from attending or giving testimony at any trial" (§ 136.1, subd. (a)(1) or "knowingly and maliciously" attempts to do so (id., subd. (a)(2)). The evidence presented at trial did not establish that defendant violated either of these provisions. Accordingly, we reverse defendant's conviction on count five.
II
Prior Conviction Evidence
Defendant concedes that his prior conviction for intimidating a witness (§ 136.1, subd. (a)) was properly admitted as a crime of moral turpitude to impeach his credibility. But he contends the trial court prejudicially erred in allowing the prosecutor to elicit the facts underlying that conviction to show his intent or absence of mistake regarding the current charge of intimidating a witness. We disagree.
A. Additional Information
The People filed a pretrial motion requesting permission to use defendant's 2016 convictions for assault with a firearm (§ 245, subd. (a)(2)) and intimidating a witness (§ 136.1, subd. (a)) to impeach his credibility. At the hearing on the motion, the trial court determined that defendant's prior convictions involved moral turpitude and were admissible to impeach him if he testified, but ruled that only reference to "two prior felony convictions involving moral turpitude" could be elicited.
At the close of the People's case-in-chief, the trial court read several stipulations to the jury, including the stipulation that defendant wrote the two letters found at Azevedo's residence. Thereafter, defendant testified on his own behalf. On direct examination, he claimed that the letter addressed to Higgins was "a stupid decision." He explained: "I wish I would have never tried to reach out to [Higgins]. I was scared, facing life in prison. I thought that by me reaching out to [Higgins] and his family, I thought that, you know, I could help him and him help me get out of trouble as well. [¶] It was just real dumb of me. I wasn't trying to threaten him. I wasn't trying to hurt him. I wasn't trying to do anything. It was real dumb of me to do that."
During a break in cross-examination, the prosecutor requested permission to ask defendant about the conduct underlying his prior conviction for intimidating a witness. The prosecutor argued that the facts underlying the prior conviction were relevant for impeachment purposes because defendant claimed the letter addressed to Higgins was a mistake and that he only wrote the letter because he was scared about the prison time he was facing. The prosecutor explained: "[T]he People's position is, [the letter was] not a mistake, and [defendant's] credibility also his intent are at issue. He has chosen to take the stand, and because of that and because of how he testified, the People think it has now become relevant that he has previously engaged in similar behavior under dissimilar circumstances."
After a lengthy discussion with the parties, the court ruled that the conduct underlying defendant's prior conviction for intimidating a witness was relevant for impeachment purposes and the issue of intent, and that the prosecutor could ask defendant if he was previously convicted of that offense and make a limited inquiry into the underlying facts, omitting any mention of domestic violence.
Defendant then admitted to the prosecutor and jury that he pleaded guilty to the prior, admitting that he "came to the scene where people from [the district attorney's] office were lawfully subpoenaing [a] victim" to give testimony in a case involving him and he attempted to interfere with service of the subpoena. Specifically, he told the victim: "You don't have to touch that paperwork"; "These people aren't real cops, they're with the D.A."; and "You can leave. They can't keep you here."
B. Analysis
We find no evidentiary error. As an initial matter, contrary to defendant's contention, the prosecutor did not question him about the facts underlying his prior conviction to demonstrate his bad character or his propensity to violate section 136.1. Instead, the prosecutor elicited this evidence to impeach his credibility; specifically, his testimony suggesting that he did not intend to persuade Higgins to change his story about the shooting. When evidence is offered to impeach a witness's testimony, rather than as character evidence, different principles come into play. In determining the credibility of a witness, the jury may consider any matter that has a tendency in reason to prove or disprove the truthfulness of his testimony, including "a witness's character for honesty or veracity or their opposites." (People v. Harris (2005) 37 Cal.4th 310, 337.) When offered for impeachment, subject to Evidence Code section 352, there is no prohibition on admission of the circumstances underlying a prior offense. (People v. Dalton (2019) 7 Cal.5th 166, 214 (Dalton) ["Evidence of circumstances underlying a conviction is admissible to impeach credibility if the proponent demonstrates that the evidence has 'any tendency in reason' to disprove credibility"]; see Harris, at p. 337 ["Past criminal conduct involving moral turpitude that has some logical bearing on the veracity of a witness in a criminal proceeding is admissible to impeach, subject to the court's discretion under Evidence Code section 352"].)
"[A] defendant who elects to testify in his own behalf is not entitled to a false aura of veracity." (People v. Beardslee (1991) 53 Cal.3d 68, 95.) " '[B]y taking the stand, defendant put his own credibility in issue and was subject to impeachment in the same manner as any other witness.' " (People v. Doolin (2009) 45 Cal.4th 390, 438.) There is no dispute that the conduct giving rise to defendant's prior conviction for intimidating a witness showed moral turpitude. (See People v. Aguilar (2016) 245 Cal.App.4th 1010, 1017 [crimes involve moral turpitude when they reveal dishonesty, a general readiness to do evil, or moral laxity of some kind].) Defendant's past conduct casts doubt on his credibility, including his testimony suggesting that he did not intend to persuade Higgins to change his story about the shooting. To the extent defendant suggests that the evidence should have been excluded under Evidence Code section 352, he has forfeited the argument by failing to object on this ground when the trial court decided to admit the evidence. (Doolin, at p. 438.) Defendant never argued that the probative value of the evidence was outweighed by its prejudicial effect. (See Evid. Code, § 352.) Nor has he made such a showing on appeal.
In support of his claim of evidentiary error, defendant relies on People v. Casares (2016) 62 Cal.4th 808, 830 ["Under California law, the right to cross-examine or impeach the credibility of a witness concerning a felony conviction does not extend to the facts underlying the offense"].) Defendant's reliance on Casares is misplaced. Our Supreme Court recently overruled Casares on the very point defendant cites it for. (See Dalton, supra, 7 Cal.5th at p. 214.)
But even were we to assume the challenged evidence was improperly admitted, defendant has failed to establish that, absent the error, there is a reasonable probability he would have obtained a more favorable result. (Dalton, supra, 7 Cal.5th at pp. 214-215 [applying the reasonably probable standard of prejudice under People v. Watson (1956) 46 Cal.2d 818].) As we explained above, defendant's conviction for intimidating a witness must be reversed due to insufficient evidence. Therefore, as defendant concedes, the asserted error did not prejudice defendant with respect to that offense.
We are unpersuaded by defendant's contention that the asserted error "prejudiced the entire proceedings and the verdicts on all counts, warranting reversal of the judgment." The prosecution's inquiry into the factual basis of his prior conviction was limited and relevant to defendant's credibility. Upon questioning, defendant simply admitted that he verbally interfered with individuals from the district attorney's office while they were attempting to serve a subpoena on a victim in a case he was involved in. Defendant concedes that it was proper for the jury to be made aware that he had two prior convictions involving moral turpitude. We fail to see how the challenged testimony elicited by the prosecutor produced a significantly different impression of his credibility than did the mere fact of the convictions alone. Indeed, the undisputed evidence presented during the People's case-in-chief showed that defendant offered Higgins money to recant his identification of defendant as the shooter.
Further, the evidence against defendant was strong. Two security guards familiar with defendant identified him as the person who pointed a gun at Grimes and fired. Higgins testified that he saw the entire altercation between defendant and Grimes and was himself restraining Grimes when defendant fired a gunshot at Grimes from a distance of three to five feet away. Olson testified that defendant's arm was fully extended when he fired the gun. Grimes testified that the man who shot him did so as he was stumbling backwards after being punched in the face. Following the shooting, defendant immediately fled the scene without calling the police and then left the state, which gives rise to an inference of consciousness of guilt. (See People v. Bonilla (2007) 41 Cal.4th 313, 328-329.) During a jail phone call less than a week after the shooting, defendant told his then-wife, "I'm done, man. I'm fixing to be gone for good years for attempted murder at Parlare." By contrast, the defense case was weak. It hinged solely on defendant's testimony, which contradicted the testimony of three eyewitnesses in material respects. Defendant's claim that Grimes's gun accidentally went off while he and Grimes were struggling over it was uncorroborated and contradicted.
On this record, we cannot conclude that defendant was prejudiced by the asserted evidentiary error.
III
Prosecutor's Questions Implying Facts
Defendant contends reversal is required because the prosecutor improperly attempted to impeach him with inadmissible hearsay statements made by non-testifying witnesses, Brito and Mendoza, which were memorialized in police reports. Although we agree the questioning was improper, we disagree that reversal is required and find the issue forfeited for failure to raise an adequate objection.
A. Additional Background
On direct examination, defendant testified that he and Mendoza were "wanded down" by a metal detector prior to entering the club on the night of the shooting, and that Brito was present during this process. He further testified that Mendoza was carrying a purse only large enough to hold a regular iPhone. He also said that, after the shooting, he ran out the front door of the club and briefly stopped to tell Brito that there had been a shooting. Thereafter, he fled the area in his car.
When asked, Higgins testified that Mendoza's clutch purse was a little bit smaller than a standard sheet of paper folded in half, and that, in his opinion, it would have been possible to store a .45-caliber gun inside the purse.
On cross-examination, the following exchange occurred:
"[Prosecutor] Okay. Now, your testimony is, you went down [to] the front door, you spoke to Brito quickly
"[Defendant] Yes.
"[Prosecutor] -- and then got in your car and left?
"[Defendant] Yes.
"[Prosecutor] Would it surprise to you to know Mr. Brito says he didn't talk to you?
"[Defendant] No, it wouldn't. He's obviously not here, either.
"[Prosecutor] Would it surprise you to know he saw you run down and leave but never spoke to you?
"[Defendant] It would surprise me.
"[Prosecutor] You read the police reports, right?
"[Defendant] Yes, I did.
"[Prosecutor] Then you know what he said.
"[Defendant] Exactly.
"[Prosecutor] And you understand that in his statements, he never says he talked to you, correct?
"[Defense counsel] Objection. Improper impeachment.
"The Court: Overruled.
"[Prosecutor] You can answer.
"[Defendant] Correct.
"[Prosecutor] All right. So it's not there.
"[Defendant] Right."
Shortly thereafter, another exchange related to Brito occurred:
"[Prosecutor] Now, with regard to Mr. Brito, you understand, because you read these reports, that he says he didn't wand Erika's clutch, right?
"[Defendant] Yes, I understand.
"[Prosecutor] "All right. And also he puts it at eight inches by five inches, which is significantly larger than you; is that correct?
"[Defendant] That's correct.
"[Prosecutor] You also understand from looking at his statements that he indicates wanding doesn't always find guns, right?
"[Defendant] Yes.
"[Prosecutor] He says: There's very specific ways people can get guns into the club, including placing it in certain areas of the body. Right?
"[Defendant] Yes.
Finally, the prosecutor and defendant had the following exchange related to Mendoza:
"[Prosecutor] Is it your testimony that Erika was in the bathroom instead of next to you when this happened?
"[Defendant] Yes. She wasn't next to me at all.
"[Prosecutor] Okay. Well, you read her statement too, right?
"[Prosecutor] Um, yeah.
"[Prosecutor] You understand that's not what she says, right?
"[Defense Counsel] Objection. Improper impeachment.
"Trial Court: Well, overruled.
"[Prosecutor] You can answer.
"[Defendant] Can you ask the question again, please?
"[Prosecutor] You understand that that's not what she says?
"[Defendant] I understand that.
"[Prosecutor] Because you read everything that's in these reports, right?
"[Defendant] Um, I tried to, the best I could.
"[Prosecutor] You had a copy of it, right?
"[Defendant] Yeah.
"[Prosecutor] That's something that your attorney, of course, provides you, right?
"[Defendant] For sure."
B. Applicable Legal Principles
It is " 'well established that the prosecuting attorney may not interrogate witnesses solely "for the purpose of getting before the jury the facts inferred therein, together with the insinuations and suggestions they inevitably contained, rather than for the answers which might be given." [Citations.]' " (People v. Pitts (1990) 223 Cal.App.3d 606, 734 [intentionally eliciting inadmissible testimony is misconduct].) Accordingly, the California Supreme Court has "held that a prosecutor commits misconduct by asking 'a witness a question that implies a fact harmful to a defendant unless the prosecutor has reasonable grounds to anticipate an answer confirming the implied fact or is prepared to prove the fact by other means.' [Citation.] For a prosecutor's question implying facts harmful to the defendant to come within this form of misconduct, however, the question must put before the jury information that falls outside the evidence and that, but for the improper question, the jury would not have otherwise heard." (People v. Earp (1999) 20 Cal.4th 826, 859-860, italics omitted; see People v. Warren (1988) 45 Cal.3d 471, 481 [describing the gist of the misconduct as implying in the question facts the prosecutor could not prove].) "Moreover, if 'the prosecutor is not asked to justify the question, a reviewing court is rarely able to determine whether this form of misconduct has occurred.' " (Earp, at p. 860.) "Therefore, a claim of misconduct on this basis is waived absent a timely and specific objection during the trial." (People v. Price (1991) 1 Cal.4th 324, 481, superseded by statute on another ground as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1163.)
" An exception exists where the objection and request for admonition would have been 'futile or ineffective.' " (People v. Caro (2019) 7 Cal.5th 463, 510.)
C. Analysis
We agree that the questioning we have set forth above was improper; as we have described, it is well-settled that the prosecutor may not use his or her questions to put before the jury evidence that the jury would not otherwise have heard. Although the questions themselves are not evidence, the answers elicited by the questions are, and, in this case, defendant agreed with the prosecutor as to the facts contained in the questions. Thus defendant agreed that certain witness accounts contained in police reports contradicted his version of events.
Although defendant recognizes that he objected to portions of the challenged testimony only as "improper impeachment," he argues that reversal is required because the prosecutor's questioning amounted to prosecutorial misconduct and violated his rights under the confrontation clause. Defendant additionally argues that reversal is required because it was improper for the prosecutor to impeach him with inadmissible hearsay statements made by non-testifying witnesses. The People argue that defendant has forfeited his claims.
We conclude that an objection of "improper impeachment" is not sufficient to preserve defendant's specific claims of prosecutorial misconduct and confrontation clause violations. Defendant did not object based on those grounds or request that the jury be admonished. Although the trial court overruled other objections, defendant has not shown that an objection on the correct grounds or request for admonition would have been futile or ineffective. Nor did defendant specify that the prosecutor was improperly attempting to put before the jury inadmissible hearsay statements from non-testifying witnesses or attempt to make a record in that regard. As a consequence, he has forfeited his arguments. (See Evid. Code, § 353 [a judgment will not be reversed due to the erroneous admission of evidence unless the record contains a timely and specific objection to the evidence on the ground sought to be urged on appeal]; People v. Seumanu (2015) 61 Cal.4th 1293, 1328, 1331-1332 [prosecutorial misconduct and federal constitutional claims forfeited for lack of express objection on those grounds]; People v. Stevens (2015) 62 Cal.4th 325, 333 [failure to object to hearsay at trial forfeits appellate claim on appeal].)
IV
Request for Continuance
Defendant contends the trial court prejudicially erred in denying his midtrial request for a continuance to make further attempts to subpoena witnesses for trial. We disagree.
A. Additional Background
Prior to trial, the People filed a proposed witness list, which included Brito and Mendoza. The prosecutor, however, decided not to call Brito or Mendoza during the People's case-in-chief and they were released from their subpoenas.
After the People rested, defense counsel advised the trial court that he wanted to call Brito as a defense witness. When asked, defense counsel said that Brito was not under a subpoena to testify, explaining that the defense had "taken on some considerable expense" in attempting to serve Brito but was unable to locate him and that it appeared he was trying to avoid service. Defense counsel further explained that Brito had recently spoken to a defense investigator over the phone and indicated that he wanted to "avoid" testifying in this matter, and that Brito disconnected his phone number two hours later. When asked, the prosecutor told the trial court that she had also experienced difficulty in communicating with Brito and ultimately decided not to call him as a witness, "mostly because he was not going to be [in Sacramento]" when she wanted him to testify. The prosecutor explained that Brito had advised her that was going to be "out of the area at some kind of event" and would not be available to testify before "he left to go wherever he was going." At that point, the trial court indicated that it was not inclined to continue the trial to allow the defense additional time to subpoena Brito to testify, since it appeared that he was evading service and did not want to testify.
As for Mendoza, the prosecutor explained that she had recently spoken to Mendoza over the phone in an attempt to assist the defense in securing her attendance at trial. During that conversation, Mendoza indicated that she knew the defense wanted her to testify but claimed she had not been served with a subpoena. Mendoza said that her sister had received "paperwork" from the defense investigator but she had not. Mendoza also said that she had only spoken to defense counsel briefly and never agreed to be a defense witness on "telephone standby," although she acknowledged that there was "some kind of text conversation" between her and defense counsel. The prosecutor advised Mendoza that she would speak to defense counsel about whether Mendoza had been properly served with a subpoena and get back to her. When Mendoza failed to answer the prosecutor's follow-up phone calls the next day, the prosecutor did not make any further efforts to contact Mendoza.
Defense counsel, for his part, claimed that his investigator had properly served Mendoza with a subpoena to testify, and that he was sure he could "get something" in writing that would confirm proper service. Defense counsel stated that he had recently spoken with Mendoza over the phone and told her that she needed to appear in court because she had been subpoenaed. Defense counsel further stated that Mendoza had agreed to be a defense witness on "phone standby" prior to trial, and that she never claimed that she had not been properly served with a subpoena. Defense counsel, however, acknowledged that Mendoza had recently sent him a text message stating that she knew her rights and was "not needed in court." When asked, defense counsel indicated that he needed to speak with Mendoza before calling her as a witness, explaining that he had not talked to her about the night of the shooting because she had been "evasive."
After listening to the parties' representations, the trial court stated that it would not issue a bench warrant for Mendoza without written proof establishing that she had been properly served with a subpoena.
The next day, after the defense rested, defense counsel and the trial court had a further discussion about securing the attendance of Brito and Mendoza at trial. During that discussion, defense counsel stated that his client wanted Brito and Mendoza to testify because they could corroborate his claim that he was "wanded" by a metal detector prior to entering the club and did not have a gun on his person. Defense counsel, however, acknowledged that Mendoza had simply told the police that she was drunk and did not really see or hear anything except for hearing the gunshot. Nevertheless, defense counsel insisted that Mendoza could testify that defendant was "wanded" by a metal detector prior to entering the club, and that she did not feel a gun on his person while they were dancing together. With respect to the subpoena, defense counsel explained that his investigator had served a subpoena on the person she believed to be Mendoza. However, defense counsel acknowledged that his investigator had received a phone call around 30 minutes later from Mendoza, who indicated that her sister had been served. According to defense counsel, Mendoza admitted to his investigator that she had received the subpoena from her sister and confirmed her date of birth. Thereafter, Mendoza called him and he "put her on phone standby."
The trial court denied defendant's request for a continuance to allow him more time to subpoena Brito and Mendoza. In so ruling, the court reasoned that this case had been "going on for months" and defense counsel was unable to serve Brito with a subpoena and did not properly serve Mendoza with a subpoena. The court further reasoned that it was unclear what Mendoza would actually say if she testified.
B. Applicable Legal Principles and Standard of Review
A midtrial continuance in a criminal case may be granted only for good cause. (People v. Winbush (2017) 2 Cal.5th 402, 469; § 1050, subd. (e).) "Motions to continue the trial of a criminal case are disfavored and will be denied unless the moving party . . . presents affirmative proof in open court that the ends of justice require a continuance." (Cal. Rules of Court, rule 4.113.)
"An important factor for a trial court to consider is whether a continuance would be useful." (People v. Beeler (1995) 9 Cal.4th 953, 1003.) "[T]o demonstrate the usefulness of a continuance a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time." (Ibid.) "When a continuance is sought to secure the attendance of a witness, the defendant must establish 'he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.' [Citation.] The court considers ' "not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." ' " (People v. Jenkins (2000) 22 Cal.4th 900, 1037.)
"[T]he decision whether or not to grant a continuance of a matter rests within the sound discretion of the trial court." (People v. Beames (2007) 40 Cal.4th 907, 920.) "Although 'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality[,] . . . [t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.' [Citation.] Instead, '[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' " (Id. at p. 921.) "The party challenging a ruling on a continuance bears the burden of establishing an abuse of discretion, and an order denying a continuance is seldom successfully attacked." (Id. at p. 920)
C. Analysis
We find no abuse of discretion here. Defendant failed to demonstrate that he could have successfully secured Brito or Mendoza to testify at trial within a reasonable time. This is particularly true as to Brito, as nothing in the record indicates that defense counsel had any idea where to find him. (See People v. Winbush, supra, 2 Cal.5th at p. 470 [no abuse of discretion in denying continuance where there was no proffered basis to expect witness could be located].) And defendant failed to show that a continuance to secure Mendoza's testimony would be useful in producing material evidence favorable to the defense. The materiality of Mendoza's testimony was unclear. Defense counsel acknowledged that when Mendoza spoke with the police, she claimed that she was drunk and did not see or hear anything of note, except hearing the gunshot. He also admitted that he had not spoken to Mendoza about the night of the shooting. Although he speculated that she would nonetheless provide testimony favorable to defendant, without any basis this did not establish materiality. We see no abuse of discretion.
V
Motion for New Trial
Defendant contends the trial court erred in denying his motion for new trial based on newly discovered evidence. We disagree.
A. Additional Background
On the same day as the matter was set for sentencing, defendant filed a motion for new trial based on newly discovered evidence. He argued that such relief was warranted because the defense had recently learned of and located an eyewitness, Mary Kietsathit, who could corroborate and bolster his testimony that he did not bring a gun into the club on the night of the shooting. In support of his motion, defendant submitted a declaration executed by Kietsathit. In her declaration, Kietsathit explained that she was a regular patron at the club and that she knew defendant and Mendoza. She claimed that she knew defendant did not have a gun with him on the night of the shooting because she had danced with him and had touched his body around his waist. In making this claim, she noted that defendant did not bring a bag or backpack into the club, and that a gun could not have fit into Mendoza's purse, unless it was a very small gun.
After hearing arguments from counsel, the trial court denied the motion. The court concluded that the evidence identified by defendant did not qualify as newly discovered evidence. The court found that the evidence could have been developed earlier, reasoning that defendant knew about Kietsathit and there was no reason why defense counsel could not have learned about her earlier and had her "come forward" and testify. The court additionally concluded that it was not reasonably probable that the result would be different if Kietsathit had testified at trial. In so concluding, the court noted that, based on Kietsathit's declaration, her testimony would not have established that Grimes rather than defendant was the person who had brought the gun into the club on the night of the shooting.
B. Applicable Legal Principles and Standard of Review
A court may grant a new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." (§ 1181, subd. 8.) In ruling on a motion for new trial based on newly discovered evidence, the trial court considers whether: (1) the evidence, and not simply its materiality, is newly discovered; (2) the evidence is not merely cumulative; (3) the defendant in the exercise of reasonable diligence could not have discovered and produced the evidence at trial; (4) the newly discovered evidence is of such strength that a result more favorable to the defendant is probable if the new evidence is admitted on retrial; and (5) these facts are shown by the best evidence of which the case admits. (People v. Howard (2010) 51 Cal.4th 15, 43.) " 'In addition, "the trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable." [Citation.]' " (Ibid.)
"A new trial motion based on newly discovered evidence is looked upon with disfavor. We will only disturb a trial court's denial of such a motion if there is a clear showing of a manifest and unmistakable abuse of discretion." (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151.)
C. Analysis
Defendant failed to meet his burden of establishing the existence of newly discovered evidence within the meaning of section 1181. No evidence was presented showing that Kietsathit could not have been discovered with reasonable diligence before or during trial, particularly since she was a friend or acquaintance of defendant and Mendoza. "Facts that are within the knowledge of the defendant at the time of trial are not newly discovered even though he did not make them known to his counsel until later." (People v. Greenwood (1957) 47 Cal.2d 819, 822.)
Moreover, we cannot say that the trial court abused its discretion in determining that it is not reasonably probable defendant would receive a more favorable result on retrial if Kietsathit testified.
VI
Cumulative Error
Defendant contends that reversal is required due to the cumulative effect of the errors he asserts on appeal. As we have held that any error or possibility of error was nonprejudicial, we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1158, 1232.)
VII
Custody Credit
Defendant contends, and the People concede, that the trial court erred in calculating his custody credit. We agree.
"A defendant may 'accrue both actual presentence custody credits under . . . section 2900.5 and conduct credits under . . . section 4019 for the period of incarceration prior to sentencing.' [Citation.] The calculation of actual credits is performed by simply adding together 'all days of custody' the defendant has served. [Citation.] In contrast, the calculation of conduct credits depends on the purpose for which they are being calculated. . . . [U]nder section 2933.1(c), a defendant convicted of a violent felony 'cannot earn good behavior credits under section 4019 exceeding 15 percent of the actual time of confinement in a local facility "prior to placement in the custody of the Director [of Corrections and Rehabilitation]." ' [Citations.] We independently review whether a trial court has correctly applied these statutes in awarding custody credits." (People v. Arevalo (2018) 20 Cal.App.5th 821, 827, fn. omitted.)
The trial court awarded defendant 525 days of custody credit. At the time of sentencing, defendant had been in custody for 562 days. He was arrested on August 17, 2017, and sentenced on March 1, 2019. The parties agree that because defendant was convicted of a violent felony, he is only entitled to conduct credits at a rate of 15 percent. Accordingly, the trial court should have awarded defendant 646 days of custody credit, 562 days of actual custody credit, plus 84 days of conduct credit. We will modify the judgment to correct this error.
DISPOSITION
Defendant's conviction on count five for intimidating a witness (§ 136.1, subd. (a)) is reversed. The judgment is modified to reflect that defendant is entitled to 646 days of custody credit. In all other respects, the judgment is affirmed as modified. The trial court shall prepare an amended abstract of judgment and forward a certified copy thereof to the Department of Corrections and Rehabilitation.
/s/_________
Duarte, Acting P. J. We concur: /s/_________
Hoch, J. /s/_________
Krause, J.