Opinion
A137353
01-13-2015
THE PEOPLE, Plaintiff and Respondent, v. KeANDRE DAVIS, Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT] THE COURT:
Before Humes, P.J., Margulies, J., and Banke, J.
It is ordered that the written opinion filed on January 13, 2015, is modified by (1) Adding a footnote after the first sentence under section II.B.:
[ 9 ] To the extent Davis makes a separate claim that insufficient evidence supported the giving of aiding-and-abetting instructions, we reject it because, as discussed in part II.B.1. below, any error in giving the instructions was harmless. (See People v. Campbell (1994) 25 Cal.App.4th 402, 407-408 [error in giving "factually unsupported instructions" on aiding and abetting only "requires reversal if it is reasonably probable the jury relied solely on these . . . instructions to convict the defendant"].)
and (2) Deleting the second sentence in the second paragraph of section II.B.1., replacing it with "His objection below to the aiding-and-abetting instructions was that the evidence did not support such a theory of liability."
The addition of the footnote will require renumbering of all subsequent footnotes.
As modified, the judgment is affirmed. This modification does not change the judgment. (Cal. Rules of Court, rule 8.264(c)(2).) The petition for rehearing is denied. Dated: __________ /s/_________, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115 . (San Francisco County Super. Ct. No. 215769
Defendant KeAndre Davis was charged with first degree murder after a 19-year-old man was shot and killed outside a nightclub in San Francisco. Davis's defense was that he did not shoot the victim, but a jury found otherwise and convicted him of one count of first degree murder and found true an allegation that he personally and intentionally discharged a firearm causing death. On appeal, Davis contends the trial court wrongly (1) admitted DNA evidence tying him to a gun used to kill the victim; (2) instructed the jury on principles of aiding and abetting; and (3) denied him a further continuance to secure the presence of a reluctant defense witness. We disagree and affirm.
Davis was convicted of murder under Penal Code section 187, subdivision (a), and the firearm allegation was found true under Penal Code section 12022.53, subdivision (d). All further statutory references are to the Penal Code unless otherwise noted.
Davis also argues that, should we conclude that he did not preserve certain aspects of his first two claims, his trial counsel rendered ineffective assistance of counsel by not making the relevant objections. We need not address this argument because, even if we assume Davis fully preserved those claims, they fail on other grounds.
I.
FACTUAL AND PROCEDURAL
BACKGROUND
The shooting occurred in the early hours of February 7, 2010, outside Club Suede, a nightclub near Fisherman's Wharf in San Francisco. The victim, 19-year-old Lawon Hall, had gone to the nightclub with a group that included his sister, Laninja Jefferson, to celebrate a birthday. Jefferson recognized several people at the "really crowded" nightclub, one of whom was Davis, an acquaintance she and Hall had grown up with in Richmond. She and Davis did not acknowledge each other, but she testified that there was no "bad blood" between their families at the time. Jefferson saw Davis talking to a "tall," slim, "dark[-]skinned" man with "shoulder[-]length" dreadlocks whom she did not know but later identified in a lineup as William Agbekoh.
Around 1:30 a.m., the music stopped and dozens of people began to leave the nightclub, which was on the south side of Bay Street between Mason Street to the west and Powell Street to the east. Jefferson was separated from Hall and saw him walk outside with two acquaintances, Ronald and Cecil Walker. About a minute later, Jefferson heard gunshots.
Joshua Edma, a security guard at Club Suede, was outside as it was closing. He saw a Black man with short hair, wearing a "reddish top" with "horizontal stripes," standing in an alcove in front of the doorway to Secrets, a pornography store next door to Club Suede to the west on Bay Street. The man, who was facing away from Edma, appeared to be talking to someone. Edma then saw the man pull a semiautomatic pistol from his waistband, extend his arm, and shoot into the alcove. Edma saw a hand come up as if someone in the alcove was falling backward. As the man continued shooting, Edma heard gunshots coming from the other direction and turned to see Officer Robert Burns, who was east of the nightclub, firing his weapon at the shooter.
Officer Burns, a San Francisco patrol special police officer whose beat included Club Suede, had come to the club around closing time, as he normally did. He was in uniform and armed with a nine-millimeter semiautomatic Baretta pistol. He testified that as he was approaching the club from the east, he heard gunshots and saw two Black men about 15 yards away "standing off of the curb [on Bay Street itself] firing into the doorway of . . . Secrets." Although he could see "legs sticking out from the [Secrets] doorway," he could not tell whose they were.
Patrol special police officers provide security services to businesses within their beats, which they purchase the right to patrol, and are paid by those businesses. Patrol special police officers are trained and supervised by the San Francisco Police Department. (See S.F. Charter, § 4.127 (as amended Mar. 2004).)
Officer Burns described the closer of the two men, whom he referred to as "Suspect 1" and identified as Davis at trial, as "[a]pproximately five foot ten," "heavy[]set," and "wearing dark pants [and a r]ed shirt with black dots or [a black] design on it." "Suspect 2," whom the officer was never able to identify, was "about six feet" tall and "thin" with "[l]ong dreadlocks" and was wearing "a tan shirt and gray pants, or light blue pants." Davis was holding a "black object" and Suspect 2 was holding an all-silver automatic weapon that "looked to be larger than a nine-millimeter." The suspects were "standing shoulder to shoulder, both facing southbound into the [Secrets] doorway" with their arms outstretched in front of them and palms down and "appeared to be . . . shooting sideways," as if they were taking "target practice." The officer saw "muzzle flash[es]" coming from the silver gun.
As he approached, Officer Burns yelled, "[P]olice, freeze," and drew his Baretta. He saw Davis "ma[k]e a move as if he was going to turn towards" him, so he began shooting toward the suspects. Suspect 2 started running across Bay Street toward Mason Street, and Davis followed. As they reached the middle of the street, both suspects "turned as if they [were] going to raise their weapons and fire again at the crowd, or [Officer Burns]," and the officer fired at them again. Suspect 2 "flinched as if he had been hit" and "bumped" Davis, but he continued to run in the same direction. Meanwhile, Davis, who "still had the black object in his hand," turned and headed back toward Officer Burns and the crowd.
Officer Burns stopped watching Suspect 2 and fired two more shots at Davis, who "went down [on] his knee by [a] white car" parked across Bay Street from Club Suede. The officer ordered him at gunpoint to lie down on the ground, and he complied. Officer Burns testified that he never lost sight of Davis between the time he first saw him shooting at Secrets and the time he ordered him to the ground. He did not see Davis dispose of the "black object" and assumed he still had it.
Two other witnesses testified that they saw an additional, unknown shooter. Tyronne Nuque, an attendant at the parking lot across the street from Club Suede, saw a man wearing "a dark hoodie" standing in front of the nightclub and holding a gun with "flames coming out of the barrel." The man appeared to be shooting across Bay Street toward the parking lot. Nuque did not recognize Davis in the courtroom, and he was "[a] hundred percent" sure the shooter was not Officer Burns, whom he knew.
Philip Hammond was crossing Bay Street at Mason Street when he heard shots, and he took cover behind a large steel container. He saw a man, who was wearing "a white hooded sweatshirt" under a dark jacket, on the sidewalk in front of Club Suede shooting west down Bay Street. The man appeared to be walking backward, east on Bay Street, as he continued to shoot. Hammond was shown a photograph of Officer Burns and testified that the shooter he saw was "definitely not" the officer.
Police officers quickly arrived to help Officer Burns, who had called for backup. Davis, who was wearing a red-and-black-striped polo shirt, was handcuffed and searched, but no weapon was found on him. He had been shot by Officer Burns and was taken to the hospital.
Other bystanders were wounded by gunfire: one of the Walkers; Jayboy Sulaiman, who was shot while he was standing on the corner of Bay and Mason Streets; and Andrew Young, who collapsed on the street in front of Secrets.
Neither of the Walkers testified at trial. Nor did Young, who, as discussed below, was the witness who was the subject of Davis's motion for a continuance.
Hall's body was found lying in the doorway to Secrets. Judy Melinek, M.D., the forensic pathologist who performed the autopsy, testified that Hall had sustained 15 gunshot wounds and was hit by at least 13 bullets. The wounds were spread throughout his body and were consistent with his having been in a defensive position when he was shot. Dr. Melinek opined that the shooter or shooters were at least three feet away from Hall and that most if not all of the shots had traveled from his left to his right. Both .40 caliber and nine-millimeter bullets were extracted from Hall's body, and Dr. Melinek testified that "all the gunshot wounds . . . essentially contribut[ed]" to Hall's death because he had died from blood loss.
A Smith & Wesson nine-millimeter pistol was discovered under the white car, 10 to 15 feet from where Davis lay down after Officer Burns ordered him to the ground. It was black with a silver slide and muzzle. Agbekoh's thumb print was on the magazine. The Smith & Wesson had fired at least one of the bullets extracted from Hall's body. Aside from Officer Burns's Baretta, no other gun was ever recovered.
Ballistics evidence recovered at the scene corroborated Officer Burns's account. This evidence included seventeen nine-millimeter shell casings fired by the Smith & Wesson and eleven .40 caliber shell casings fired by a single, unidentified firearm that were all recovered in and around the Secrets alcove, consistent with the officer's testimony that he saw two men shooting in that area.
At trial, criminalist Tahnee Mehmet, formerly with the San Francisco Police Department Crime Laboratory (SFPD Crime Lab), was qualified as an expert in forensic DNA analysis. She testified that she compared a DNA sample, which contained a mixture of at least four people's DNA taken from the Smith & Wesson's grips, with DNA samples taken from Davis and Agbekoh. She concluded that both Davis and Agbekoh were "possible contributors" to the DNA mixture from the gun. On cross-examination, she testified that she calculated a 1-in-370 chance that an African-American unrelated to either man was a possible contributor to the mixture.
Although Agbekoh was initially a suspect and his DNA was collected about two weeks after the crime, the record does not indicate whether he ever faced charges for Hall's murder.
The jury found Davis guilty of first degree murder and found true the allegation that he personally and intentionally discharged "a firearm, to wit: 9 MM handgun" causing death. The trial court sentenced him to 50 years to life in prison, comprised of a term of 25 years to life for the murder and a consecutive term of 25 years to life for the firearm allegation.
The verdict form states that the allegation was that Davis "did personally and intentionally use a firearm" instead of that he personally and intentionally discharged it. (Italics added.) Davis makes nothing of this discrepancy, however, and it appears to have been a clerical error, as the jury was instructed that it had to conclude that he both "personally discharged a firearm" and "intended to discharge the firearm" to find the allegation true. (See People v. Trotter (1992) 7 Cal.App.4th 363, 369-370.)
II.
DISCUSSION
A. Any Error in the Admission of Expert Testimony About DNA Analysis Was Harmless Even Assuming Davis Preserved the Claim.
Davis argues that the trial court improperly admitted Mehmet's DNA testimony because (1) the court failed to hold a foundational hearing to determine whether Mehmet's 1-in-370 statistic was properly calculated under the third prong of People v. Kelly (1976) 17 Cal.3d 24 (Kelly); and (2) the testimony "had no valid statistical value" and was "highly prejudicial" under Evidence Code section 352. We conclude that any error in admitting Mehmet's testimony was harmless given the substantial other evidence supporting the jury's determination.
Kelly established a three-prong test governing the admissibility of expert testimony based on a new scientific technique. (People v. Jones (2013) 57 Cal.4th 899, 936.) Its third prong addresses " 'whether the procedures utilized in the case at hand complied with that technique' " (id. at p. 941), which, as relevant here, bars expert testimony on DNA-related statistical calculations unless "the calculations in the particular case followed correct scientific procedures." (People v. Venegas (1998) 18 Cal.4th 47, 84.)
Before trial, Davis moved to exclude the results of Mehmet's analysis, arguing that he "ha[d] a right to a third prong Kelly hearing on whether the laboratory . . . conducted testing in a generally accepted and reliable manner and whether [it] calculated the random match probability correctly." (Capitalization and boldface omitted.) At a subsequent hearing, he argued that the prosecution was required to show that the proper procedures were followed before Mehmet's testimony could be admitted. He claimed he was unable to articulate a more specific challenge because he had no "declaration stating what steps were actually taken [by Mehmet in conducting her analysis] under penalty of perjury." The trial court declined to order a foundational third-prong hearing "[r]ight now" because whatever evidence would be presented "is going to be reduplicated in front of the jury." The court stated that "any weaknesses in the D.N.A. procedure" could be elicited "during trial, or if it is necessary just before the witness takes the stand in front of the jury."
Several days later, while the parties were discussing other DNA-related issues, the trial court reiterated that it would not hold a separate foundational hearing on the third prong of Kelly. Davis's trial counsel said to the court, "[I]t appears to me, and you can correct me if I'm wrong, that we are going to be denied the Kelly third-prong hearing in this court." The court responded, "I don't think so. The whole issue of that third prong goes to the weight of everything and that can be fully litigated in front of the jury. If I find that there is something about what they did . . . that ought to result in [the evidence's] exclusion, I preclude it and so instruct the jury. [¶] But all I can say is that on this record[,] without an offer of proof regarding something in . . . the [SFPD Crime Lab's] written protocol that is subject to serious exclusionary question and/or . . . something that occurred in the actual manipulation of the evidence, I just am not going to . . . entertain a separate hearing on the issue."
At trial, Mehmet testified that she used "the correct procedures accepted by the forensic science community for D.N.A. analysis and typing" and that the SFPD Crime Lab was accredited at the time she performed her analysis. She concluded that Davis and Agbekoh were "both included as possible contributors to the D.N.A. mixture" on the Smith & Wesson. She could not say, however, "when or how [the] deposit of D.N.A." that included the men's profiles had happened. She agreed that it was possible that "Agbekoh could have handled the gun at some point and then handed the gun off to . . . Davis[,] who may have deposited his D.N.A. on that gun by firing the weapon." But she also said that "any scenario is possible, including that they never handled the gun [or] that they . . . sneezed on the gun." On cross-examination, she confirmed that "there [was] no scientific way to say that . . . Davis's [DNA] profile [was] actually contained within [the] mixture, other than he [was] included as a possible source."
The prosecutor elicited no testimony on direct examination about statistical calculations. On cross-examination, however, Mehmet was asked about the "statistic" she had put in her report. In response, she testified that she had calculated the combined probability of inclusion (CPI)—the probability that an individual unrelated to Davis or Agbekoh was a possible contributor to the DNA mixture on the Smith & Wesson—as 1 in 370 African-Americans. She explained that in making her calculation she excluded "peaks," indicating possible alleles, or DNA types, at particular genetic loci that were above 50 but below 75 relative fluorescent units (R.F.U.) because they were "below the interpretational threshold set by the laboratory." She explained that those peaks were "inconclusive" because they could have been caused by an actual DNA source or by the machinery used to perform the analysis. She acknowledged that the SFPD Crime Lab's protocol at the time stated that peaks in this range could "be considered for interpretation as warranted on a case-by-case basis," but she explained that such use was limited to determining whether a person was included in or excluded from a DNA sample and was not permitted when calculating the CPI. She also confirmed that she had followed the laboratory's protocol in performing the calculation.
Marc Taylor, the defense's expert on DNA analysis, agreed with Mehmet that Davis could not be "exclude[d] . . . as a source of some of the D.N.A. that's on the [Smith & Wesson]" but also that it was possible his DNA was not on it at all. Taylor did not agree, however, with Mehmet's method of calculating the CPI. He explained that the SFPD Crime Lab, unlike many other laboratories, assumed "the maximum amount of stutter" in determining which peaks to disregard. Although the laboratory's protocol stated that peaks between 50 and 75 R.F.U. could be considered, Mehmet had excluded all such peaks. Taylor testified that excluding peaks between 50 and 75 R.F.U. was the conservative approach when determining whether to include a person as a possible contributor but resulted in a rarer CPI. If the peaks Mehmet ignored were included, the CPI was 1 in 9 African-Americans. Taylor acknowledged that "there [was] no way to determine if [the excluded] peaks came from real D.N.A. material."
Davis makes two related arguments involving the 1-in-370 figure. First, he argues that he was entitled to a separate Kelly third-prong hearing on whether Mehmet used a proper method to calculate the CPI. Second, he argues that Mehmet's testimony that he was a possible contributor to the DNA mixture was not probative since the 1-in-370 figure was not "statistically significant."
"A determination that the DNA profile of an evidentiary sample matches the profile of a suspect establishes that the two profiles are consistent, but the determination would be of little significance if the evidentiary profile also matched that of many or most other human beings. The evidentiary weight of the match with the suspect is therefore inversely dependent upon the statistical probability of a similar match with the profile of a person drawn at random from the relevant population." (People v. Venegas, supra, 18 Cal.4th at p. 82.) Evidence of such statistical calculation is subject to Kelly and, as mentioned above, cannot be admitted absent a showing under Kelly's third prong that "the calculations in the particular case followed correct scientific procedures." (Venegas, at p. 84.)
The reasoning of People v. Venegas, supra, 18 Cal.4th 47 about the need to screen statistical calculations for admissibility is equally applicable here even though the type of DNA analysis used in that case was different from the type used here. (Id. at p. 58 & fn. 6.)
As is other evidence, DNA-related evidence is subject to Evidence Code section 352, which provides that a trial "court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Initially, the Attorney General argues that Davis forfeited his claim that a separate Kelly third-prong hearing should have been held because he did not renew his request for one before Mehmet testified. And she argues that Davis forfeited his claim that Mehmet's testimony should have been excluded under Evidence Code section 352 because he did not raise this objection below. We agree that Davis failed to preserve both claims, but for a different reason: it was the defense, not the prosecution, that first elicited testimony about the 1-in-370 figure. Davis cannot complain on appeal that evidence he himself introduced was inadmissible. (See, e.g., People v. Visciotti (1992) 2 Cal.4th 1, 72.)
Even if we assume that Davis preserved these claims, we still reject them because any error in the admission of Mehmet's testimony was harmless. The other, non-DNA evidence that Davis was one of the two shooters was substantial. Officer Burns observed Davis appearing to shoot into the Secrets alcove while holding a "black object" in his hand. This testimony was strong evidence that Davis shot Hall. Davis emphasizes that Officer Burns testified that he did not actually see a gun in Davis's hand when Davis headed back toward him and the officer fired his final shots. But in light of Officer Burns's earlier observations that Davis appeared to shoot into the Secrets alcove while holding a black object, this testimony only suggests that Davis may have disposed of the black object before running back toward the officer.
Officer Burns also testified that two people, one of whom was Davis, appeared to be shooting into the Secrets alcove. Since at least one bullet from a .40 caliber weapon also hit Hall and contributed to his death, Mehmet's conclusion that Davis may have touched the Smith & Wesson was not critical to his conviction. Even if the jury concluded that Davis never touched the Smith & Wesson, it could have found that he shot Hall with the unidentified firearm. Indeed, the evidence that Agbekoh left his thumb print on the magazine of the Smith & Wesson and may have contributed to the DNA found on that gun was just as consistent with a conclusion that he, not Davis, used it to shoot at Hall.
Moreover, the defense fully cross-examined Mehmet and rebutted her opinion with its own expert testimony. Both experts agreed that the DNA analysis could not prove conclusively whether or when Davis touched the Smith & Wesson. In short, the DNA evidence was simply not critical to the state's case, and we therefore conclude that it is not reasonably probable that the outcome would have been more favorable to Davis had Mehmet's testimony been excluded. (People v. Venegas, supra, 18 Cal.4th at p. 93; People v. Watson (1956) 46 Cal.2d 818, 836.)
B. Davis's Challenges to the Aiding-and-Abetting Instructions Fail.
Davis claims the trial court erred by instructing the jury that he could be found guilty of murder as an aider and abettor because the prosecution never pursued that theory of guilt. He also claims the court erred by instructing that he was "equally guilty" of the murder "whether he committed it personally or aided and abetted the perpetrator who committed it." Both contentions lack merit.
The prosecution's theory was that Davis was "Suspect 1," one of the two men whom Officer Burns testified shot directly into the Secrets alcove. Nevertheless, the jury instructions the People submitted before trial included versions of CALCRIM Nos. 400 and 401 addressing aiding-and-abetting liability.
At the conference on jury instructions, the parties discussed whether aiding-and-abetting instructions should be given. The trial court stated, "I did not take the time to put all the pieces . . . of the evidence together. I am leaving that to the attorneys. But if [Officer Burns] says there were two guys there, I couldn't see the gun that the second guy was using, plus the circumstantial evidence that a .40 caliber [weapon] was used, there [were] two people there, . . . I would love help here. [¶] Did . . . any of the slugs that came from the victim . . . get linked up to any gun?" The prosecutor explained that "at least one .40 caliber bullet [was] pulled or extracted from [Hall's] body" and that "eleven .40 caliber shell casings [were found] in the area where [Officer] Burns says there was a second shooter shooting." She also explained that "[f]our bullets that were extracted from . . . Hall" and "17 shell casings matched the Smith [&] Wesson under the car."
Davis's trial counsel responded, "Either [the jurors] are going to conclude that [Davis] was the person that was Suspect . . . 1 there shooting and committing murder or not. There is no evidence of anything else to encourage, facilitate or something . . . . I think to include this is just going to be confusing to [the jurors] . . . . [M]aybe we can't link a gun to him, so what was he doing out there? Can we convict him of aiding somehow? And there's just nothing that's here." The trial court ruled that it would give the prosecutor's requested instructions, "based upon [the] totality of the evidence in this case."
1. Davis's claim that he was not given notice of an aiding-and-abetting theory of liability lacks merit.
Davis first argues that he was not given notice that he might need to defend against an aiding-and-abetting theory of liability because the prosecution did not rely on such a theory at trial. We disagree.
At the outset, we question whether Davis preserved this issue for review, although the Attorney General does not argue that it was forfeited. His objection below to the aiding-and-abetting instructions was that the evidence did not support such a theory of liability, an argument he does not raise on appeal. He never claimed that he lacked notice of the theory or was otherwise prevented from defending against it. (See People v. Cole (2004) 33 Cal.4th 1158, 1204-1205 [claim of lack of notice of lying-in-wait murder theory waived where "[d]efendant never objected at trial to any lack of notice that the prosecution would attempt to prove lying in wait" and did not move for continuance or to reopen evidence].)
Even assuming this argument was preserved, however, we reject it. Davis relies on a Ninth Circuit decision, Smith v. Lopez (9th Cir. 2013) 731 F.3d 859, that was recently reversed. (Lopez v. Smith (2014) ___ U.S. ___, 190 L.Ed.2d 1.) In Smith v. Lopez, the Ninth Circuit held that the defendant's constitutional "right to the notice of the nature of the charges against him was violated" when the jury was instructed that he could be found guilty of murder as an aider and abettor. (Smith v. Lopez, at p. 868.) The Ninth Circuit concluded that, although the information gave the defendant initial notice that he could be convicted as an aider and abettor, "the prosecution's conduct throughout the pretrial and trial proceedings affirmatively led [him] to reasonably believe that it would not rely on an aiding-and-abetting liability theory" and he was " 'ambushed' " by the prosecutor's request for the instruction on the day closing arguments began. (Id. at pp. 868-870.)
The United States Supreme Court reversed because the Ninth Circuit had failed to apply the proper standard of review, which only allows a federal court to grant habeas relief to a state prisoner "if the state court's decision was 'contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.' " (Lopez v. Smith, supra, 190 L.Ed.2d at pp. 2-3, quoting 28 U.S.C. § 2254, subd. (d)(1).) The Supreme Court explained it had never held that a defendant can be deprived of any "notice of the possibility of conviction on an aiding-and-abetting theory" that may be constitutionally required "by a prosecutorial decision to focus on another theory of liability at trial." (Lopez v. Smith, at p. 3.)
Smith v. Lopez relied on an earlier Ninth Circuit case that is still good law, Sheppard v. Rees (9th Cir. 1990) 909 F.2d 1234, in which the court had "agreed with the state's concession" that an instruction on felony murder had "violated the defendant's fundamental right to notice of the nature of the charges against him" where the prosecution requested the instruction on "the morning after the instructions conference, and just before closing arguments." (Smith v. Lopez, supra, 731 F.3d at pp. 867-868.) But "California and Ninth Circuit decisions have uniformly viewed Sheppard [v. Rees, supra, 909 F.2d 1234] narrowly and limited it to its facts," and "[t]hus, for example, no ' "ambush" ' occurs where felony-murder instructions are mentioned for the first time at an initial instructions conference, so long as trial evidence supports the theory and the defense has a day or more to prepare oral argument." (People v. Lucas (1997) 55 Cal.App.4th 721, 738; see, e.g., People v. Cole, supra, 33 Cal.4th at p. 1206; People v. Gurule (2002) 28 Cal.4th 557, 629-630; Morrison v. Estelle (9th Cir. 1992) 981 F.2d 425, 428.) Here, the prosecution filed its proposed jury instructions, including the aiding-and-abetting instructions at issue, almost two weeks before opening statements were given. And the ruling that the challenged instructions would be given was made the day before closing statements were given. As a result, the defense had plenty of time to prepare argument on aiding and abetting had it wished to do so.
Finally, even if the aiding-and-abetting instructions were improperly given because Davis lacked notice, we conclude that any such error was harmless. The prosecutor did not, in fact, pursue an aiding-and-abetting theory at trial and did not once mention aiding and abetting during closing arguments. Instead, she consistently argued that Davis was one of the two men Officer Burns saw shooting into the Secrets alcove and that Davis shot the Smith & Wesson. Moreover, the jury could not have found, as it did, that Davis personally and intentionally discharged a nine-millimeter handgun causing death without also concluding that he was one of the men observed shooting into the alcove. Under these circumstances, the giving of the instructions did not contribute to the verdict beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Salvato (1991) 234 Cal.App.3d 872, 884 [applying Chapman standard to prejudice resulting from lack of notice of charges].)
2. The jury instruction that included the phrase "equally guilty" was proper.
Davis also argues that the trial court erred by giving former CALCRIM No. 400 because it incorrectly allowed the jury to conclude that if he aided and abetted the murder, he was "equally guilty" as the direct perpetrator. We are not persuaded.
The version of CALCRIM No. 400 given provided, "A person may be guilty of a crime in two ways: [¶] One, he may have directly committed the crime. I will call that person the perpetrator. [¶] Two, he may have aided and abetted a perpetrator who directly committed the crime. [¶] . . . [¶] A person is equally guilty of a crime whether he committed it personally or aided and abetted the perpetrator who committed it." CALCRIM No. 400 has since been amended to remove the word "equally." (See CALCRIM No. 400.)
The Attorney General argues that Davis forfeited this claim because he "failed to request a clarifying instruction." In doing so, she relies on the rule that a defendant "may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language." (People v. Lang (1989) 49 Cal.3d 991, 1024, italics added.) This reliance is misplaced. Davis claims that the "equally guilty" language rendered the version of CALCRIM No. 400 given incorrect in law. Moreover, Davis's position below was that aiding-and-abetting instructions should not be given at all. As a result, we will consider the merits of his claim.
Davis's claim is based on People v. Samaniego (2009) 172 Cal.App.4th 1148 and People v. Nero (2010) 181 Cal.App.4th 504, both of which concluded that an aider and abettor can act with a less culpable mind state than a direct perpetrator. (Nero, at p. 517; Samaniego, at p. 1164.) In Samaniego, the Court of Appeal addressed a version of CALCRIM No. 400 that was identical in all relevant respects to the instruction given here. (Samaniego, at pp. 1162-1163.) In dicta, the court observed that the instruction was "generally correct in all but the most exceptional circumstances." (Id. at p. 1165.) But the court concluded that, although it was generally correct, the instruction was misleading as applied in that case because "there were no eyewitnesses to the actual shooting of [either victim] and therefore no evidence as to which [of the two defendants]," both of whom were in the same gang, "was the direct perpetrator." (Id. at pp. 1161-1162.) The court nonetheless rejected the claim, concluding that it had been forfeited and that any error was harmless. (Id. at pp. 1163, 1165-1166.)
Davis characterizes People v. Samaniego, supra, 172 Cal.App.4th 1148 as "illustrative" of how former CALCRIM No. 400 may be misleading, but neither he nor Samaniego itself explains why the circumstances in that case were so "exceptional" or why the instruction was misleading in that context. (Samaniego, at p. 1165.) And even assuming Samaniego correctly concluded that the instruction was erroneously given in that case, we do not see why the circumstances here are also so "exceptional" as to render the instruction misleading. Davis suggests the jurors could have concluded he was not one of the two men shooting into the Secrets alcove and "could . . . have speculated that [he] was acting in a manner which aided and abetted the faction that was shooting at Hall and his associates." But no evidence supported such a conclusion. Although Nuque's and Hammond's testimonies suggested another shooter was present, their descriptions of that shooter did not match the description of Davis, who was undisputedly wearing a red shirt. There may have been an issue about which weapon Davis shot, but there was no evidence presented that he shot a firearm that night but was not one of the shooters seen firing into the Secrets alcove.
More generally, we do not see how instructing that a defendant is "equally guilty" whether he acts as a direct perpetrator or as an aider and abettor, which involves a comparison of the defendant to himself, somehow suggests that a defendant who acts as an aider and abettor is as culpable as the direct perpetrator, which involves a comparison of the defendant to someone else. The instruction at issue in People v. Nero, supra, 181 Cal.App.4th 504, CALJIC No. 3.00, compared the defendant to someone else. It directly equated the culpability of an aider and abettor with the culpability of the direct perpetrator by instructing that " '[e]ach principal,' " including direct perpetrators or aiders and abettors, is, " 'regardless of the extent or manner of participation, . . . equally guilty.' " (Nero, at p. 510.) In contrast, the instruction here merely conveyed that Davis was no less guilty if he acted as an aider and abettor instead of a direct perpetrator but did not compare the aider and abettor's culpability to the direct perpetrator's. Nero also does not establish that the instruction given here was misleading.
Finally, even if former CALCRIM No. 400 were improperly given, we conclude the error was harmless. As discussed above, the prosecution did not pursue an aiding-and-abetting theory at trial and, in light of the evidence presented, no reasonable jury could have found true the allegation that Davis personally and intentionally discharged a firearm causing death without also concluding he was one of the men observed methodically shooting into the Secrets alcove. Moreover, there was no evidence to suggest that one of those shooters had a more culpable mental state than the other. As a result, the instructions did not contribute to the verdict beyond a reasonable doubt even if they were given in error. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Nero, supra, 181 Cal.App.4th at pp. 518-519.)
C. The Trial Court Did Not Abuse Its Discretion by Denying Davis a Further Continuance to Secure Young's Testimony.
Davis claims the trial court erred by denying his request for a continuance to secure Young's attendance as a witness. We disagree.
The defense subpoenaed Young to appear at trial. He was personally served with the subpoena and signed an agreement "to appear in court on telephone notice of at least 24 hours" under penalty of contempt. Although initially cooperative, Young stopped communicating with Davis's trial counsel partway through the trial. After being unable to contact Young by phone or e-mail for several days, Davis's counsel asked the trial court to issue a body attachment. Counsel argued that Young was a material witness because his testimony would "indicat[e] . . . that there were shots coming from a location further west . . . than directly in front of the [Secrets] alcove."
The trial court agreed that Young had violated the agreement to be available by telephone and that he was a material witness. It issued a body attachment but stayed it to allow Davis's trial counsel to inform Young of its issuance. A few days later, the court clerk told the court she had spoken to someone claiming to be Young and that person had promised to contact Davis's counsel. The court continued the trial for one day to facilitate that contact.
Two days later, the parties reconvened and indicated they had no further evidence to present at trial. Davis's trial counsel said he still had not heard from Young and had been unable to contact him despite diligent efforts to do so. These included multiple visits to Young's family's home and calls to several businesses throughout Fairfield based on Young's earlier representation that he had a new job at a grocery store in that area. Davis's counsel reiterated that he believed Young was a material witness because "he was shot facing a direction that would not be indicative of where [Officer] Burns puts Suspect 1 or Suspect 2, but rather he was shot from a direction that would have been further [west]bound down Bay Street. [¶] You know, coupled with the testimony of . . . Hammond and . . . Nuque[,] who saw people shooting in various directions [and] both were a hundred percent positive it wasn't Officer [Burns], . . . [it] just verifies that it was chaos out there and it wasn't as simple as Suspect 1 and Suspect 2 as Officer [Burns] has made it seem." Counsel requested a continuance to the following week.
At the same time, Davis unsuccessfully moved for a mistrial. After the verdict was returned, the trial court denied his motion for a new trial based on the denial of the continuance. On appeal, he does not argue that the denial of these motions was erroneous for any reason other than that a continuance should have been granted.
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The trial court denied the motion, stating, "[I]t appears that the witness Young is secluding and hiding himself. And given the extensive and reasonable . . . efforts that [Davis's trial counsel] ha[s] made . . . in the last two weeks, . . . there is no reason to believe that further . . . effort[s] would be productive by next week or next month, necessarily. . . . [A]nd this is not [counsel's] fault. It's just [that] the circumstances don't show that there is any new information that you are likely to get that is going to directly lead to [Young's] production in court or arrest by law enforcement officers in the next number of days. If there was some type of likelihood of something new developing, I would probably grant the motion."
" 'A continuance in a criminal trial may only be granted for good cause.' " (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1181; § 1050, subd. (e).) "A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence. [Citations.] 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.)
We review the trial court's denial of a continuance for an abuse of discretion. (People v. Hajek and Vo, supra, 58 Cal.4th at p. 1181.) We do not disturb the court's ruling unless " 'the court exceed[ed] the bounds of reason, all circumstances being considered.' " (Ibid.)
The trial court properly denied Davis's motion on the basis that Young's presence would not likely be secured within a reasonable time even if the trial were continued again. (See People v. Jenkins, supra, 22 Cal.4th at p. 1037.) Davis's trial counsel, who apparently had Young's telephone number and e-mail address, diligently attempted to track down Young over several days. Young refused to respond to counsel's messages and did not follow through on his promise to the clerk to contact counsel. This defiance was shown even though Young had apparently been informed that a body attachment had been issued. Davis claims "[i]t is reasonably likely that[,] had [he] been given the opportunity to seek enforcement of the body attachment through official channels (such as the sheriff's department), Young would have complied with his obligation to testify." But this is entirely speculative. It is far from certain that law enforcement officers would have been able to find Young, whose address was unknown, and secure his presence when he was uncooperative. In light of these circumstances, the court did not abuse its discretion by determining that a continuance was unlikely to result in Young's presence.
Davis also argues that the trial court's denial of a continuance violated his "right[s] to a fair trial and to present a defense" because of the importance of Young's testimony. "Although completely excluding evidence of an accused's defense" might rise to the level of a constitutional violation, preventing a defendant from presenting "evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense." (People v. Fudge (1994) 7 Cal.4th 1075, 1103.) Here, the trial court did find that Young was a "material" witness, but it also found, in ruling on Davis's mistrial and new-trial motions, that Young's testimony would not be "exculpatory." At best, Young's testimony would have supported the defense theory that there was at least one unidentified shooter and that Officer Burns had not completely described what happened. But two other defense witnesses, Nuque and Hammond, testified that they saw an unidentified shooter, and the evidence as a whole conveyed that the scene was chaotic. Moreover, even if there was another shooter, that fact would not have contradicted the evidence that Davis had shot into the Secrets alcove. As a result, Young's anticipated testimony was not crucial to the defense. We therefore conclude that the denial of a continuance to secure that testimony did not violate Davis's constitutional rights.
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J.
We concur: /s/_________
Margulies, J.
/s/_________
Banke, J.