Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Francis J. Hourigan III, Judge, Los Angeles County Super. Ct. No. YA054711
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael R. Johnsen and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Appellant Enrique Diaz appeals from the judgment entered following his conviction by jury on count 1 – first degree murder (Pen. Code, § 187) with personal discharge of a firearm causing death (Pen. Code, § 12022.53, subd. (d)). The court sentenced him to prison for 50 years to life. Appellant claims there was trial and sentencing error. We affirm the judgment.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that for four or five years prior to March 12, 2003, Angel Reygadas and Elizabeth Diaz (Elizabeth) had been dating. Elizabeth was appellant’s sister.
On August 12, 2001, Reygadas and Elizabeth were in an alley behind the residence of Francisco Gomez. Gomez was Reygadas’s uncle. The residence was located in the 11800 block of Berendo in Los Angeles County. Appellant approached Reygadas and assaulted him, rendering him unconscious. When Gomez tried to help Reygadas, appellant assaulted Gomez, rendering him unconscious. Later that day, Reygadas and Gomez went to appellant’s house in the area of 119th Street and Vermont. Reygadas’s brother went to the house with a friend who had a bat. Appellant was present and a confrontation occurred, but appellant was not injured.
About 8:45 p.m. on March 21, 2003, Reygadas was driving his blue or green Cadillac on Berendo towards 119th Street. A black Nissan came from behind the Cadillac and drove along the driver’s side of the Cadillac. Mitchell Sampson, who was standing outside an apartment complex, saw the Cadillac and Nissan driving on the same side of the street where Sampson was standing. The passenger side of the Nissan was closest to Sampson.
Sampson saw two male Hispanics in the Nissan, a driver and a front seat passenger. After Sampson saw the Cadillac and Nissan drive by, and after he saw the passenger in the Nissan, Sampson heard about six or seven gunshots, and they were fired so quickly that he believed that probably two guns were fired. Sampson did not see the gunshots because an ice cream truck was blocking his view. Sampson testified at a preliminary hearing, and at trial, that he got a good look at the front seat passenger of the Nissan. There was overhead lighting that illuminated the front passenger’s face.
Deputies showed Sampson a photographic identification folder (People’s exhibit No. 5) containing six photographs including photograph No. 1, and Sampson selected photograph No. 1 as depicting the front seat passenger in the Nissan. Sampson testified at trial that he was positive, both at the time he selected the photograph, and at trial, that that photograph depicted the front seat passenger. Sampson also testified that a larger photograph, People’s exhibit No. 7, depicted the person who was also depicted in photograph No. 1 in People’s exhibit No. 5. Sampson made the identification of photograph No. 1 based on the person he remembered seeing in the passenger seat of the black vehicle just before the shooting.
Sampson testified in June 2004 at trial that, at the July 2003 preliminary hearing in the present case, Sampson positively identified the person seated at counsel table at the preliminary hearing as the front seat passenger. Photograph No. 1 in People’s exhibit No. 5 looked much like the person whom Sampson identified at the preliminary hearing.
At trial, Sampson was a reluctant witness and did not identify appellant as involved in the shooting. Sampson testified at trial that he could not tell if the person in photograph No. 1 of People’s exhibit No. 5 was appellant as he appeared at trial. The person in the photograph wore short hair and had facial hair, while appellant at the trial wore long, “slicked back” hair and had no facial hair. However, there is no dispute that photograph No. 1 in People’s exhibit No. 5, and the larger photograph of People’s exhibit No. 7, depict appellant. Nor is there any dispute that the person whom Sampson identified at the preliminary hearing as the front seat passenger was appellant.
About 8:45 p.m. on March 21, 2003, Hassan Bahar and Joanna Jones were buying ice cream from an ice cream truck vendor on Berendo near 119th Street. Bahar heard gunfire and saw accompanying flashes of light coming from the direction of the Cadillac and another car, which were next to each other. Bahar testified the flashes came from the car next to the Cadillac, and the car next to the Cadillac was a Nissan or Honda. Jones heard gunfire coming from the two cars, which had parked. There were also flashes of light coming from between the two cars. The cars were parked next to each other about five to ten minutes before Jones heard the gunshots.
After the gunshots stopped, the Nissan turned onto 119th Street, but returned and parked behind the ice cream truck. The Cadillac slowly moved forward and crashed into a fence located at 119th Street and Berendo. The Nissan then left.
Marquese Smith testified he was driving to his home on 124th Street when he saw the Cadillac crash into the fence and a black car drive away. After the Cadillac crashed, Smith drove up the street and asked someone whose Cadillac it was. Smith then drove to the Cadillac and saw another person walking down the street and towards the Cadillac. Smith checked Reygadas’s pulse and tried to call 911. Smith denied that he and Sampson were friends. When detectives interviewed Smith at the station, he denied that he and Sampson were friends. Sampson testified he went to the Cadillac by himself and, when he did so, Smith was there. Sampson tried to call 911.
Sampson saw a casing on the street, close to the curb where the Nissan and Cadillac had been parked parallel to each other. Sampson picked up the casing but dropped it when a deputy told him to do so.
Deputies recovered two bullet fragments from the crime scene. A bullet fragment was also recovered from Reygadas’s body during his autopsy. An expended shotgun shell casing, and shotgun wadding, were recovered from the crime scene. The shotgun wadding was recovered from the back seat of the Cadillac. A criminalist examined the Cadillac and determined that bullets struck its driver’s door, and a bullet entered the interior compartment of the Cadillac and hit its passenger door. The bullet holes were consistent with someone shooting from a car that was next to the Cadillac. The criminalist testified that the bullet holes indicated that one shot was slightly downward but, for the most part, all of the shots were very level and the shooting was “consistent with a car-to-car.”
A coroner determined Reygadas died from multiple firearm wounds. Reygadas had 12 wounds, eight of which were consistent with one shotgun blast. Two wounds were fatal. All of the entry wounds were on the left hand side of Reygadas’s body, which was consistent with the shooter having been to the left of Reygadas. Based on the coroner’s examination of the wounds and the projectiles recovered from Reygadas’s body, the coroner opined that two weapons with two types of ammunition were fired. A criminalist examined the ballistics evidence and opined that evidence recovered from the crime scene and Reygadas’s body was consistent with a shotgun, plus either an AK-47 or SKS rifle, having been used in the shooting.
Los Angeles County Sheriff’s Detective Richard Ramirez interviewed appellant on March 26, 2003, during which appellant said the following. On August 12, 2001, appellant had a fight with Reygadas. Twenty minutes later, Reygadas’s family members, carrying bats and sticks, went to appellant’s house. On the evening of March 21, 2003, appellant went to the house of a person named Nasha. He left before Reygadas was shot. After appellant left Nasha’s house, he drove on Vermont to the 105 Freeway, then drove on the freeway to his Inglewood home.
2. Defense Evidence.
In defense, Los Angeles County Sheriff’s Deputy James Andrews testified as follows. Andrews was one of the first deputies to arrive at the scene. He saw Sampson and Smith standing on the sidewalk about five feet from the Cadillac’s front passenger side. Sampson was holding a shotgun shell casing and said he had picked it up from the middle of the block on Berendo. Smith told Andrews that Smith had been driving his black Oldsmobile on 119th Street when he saw the Cadillac stopped across the south side of the sidewalk. Smith drove northbound on Berendo, picked up Sampson, and drove back to the Cadillac.
Los Angeles County Sheriff’s Deputy Philip Briones testified that Sampson told Briones the following at the crime scene. Sampson was leaving his girlfriend’s apartment in the 11800 block of Berendo when he heard two gunshots just south of his location. Sampson looked towards 119th Street and saw that a blue car had crashed into a fence at 119th Street and Berendo. As he walked southbound to see if someone was in the car, he saw Smith. Sampson picked up a shotgun shell and went with Smith to 119th Street and Berendo to see if someone was in the car. Andrews, who was first at the scene, told Sampson to drop the shell, and Sampson complied. Briones testified he assumed Sampson and Smith were friends, but also testified he was uncertain whether they described themselves as friends.
A sheriff’s detective who interviewed Sampson and Smith testified as follows. Sampson told the detective that Sampson had seen the Nissan’s passenger but had not seen a weapon. Sampson described the passenger as a male Hispanic in his early twenties with short dark hair. Sampson said he did not think the suspect had facial hair. The detective showed Sampson a photographic identification folder containing six photographs, one of which depicted appellant.
CONTENTIONS
Appellant contends the trial court erred by (1) admitting evidence that appellant assaulted Reygadas in 2001, (2) admitting evidence of appellant’s interview with a sheriff’s detective, because the interview contained the detective’s inadmissible hearsay statements of his theory of the case, (3) denying appellant’s motion for a mistrial after a detective’s testimony violated a court order excluding gang evidence, and (4) instructing the jury on first degree drive-by murder after jury deliberations had commenced.
Appellant also contends (1) he suffered impermissible multiple convictions when the jury convicted him of murder and found true the Penal Code section 12022.53, subdivision (d), enhancement allegation, (2) multiple punishment for the murder conviction and enhancement violated Penal Code section 654, (3) the prosecutor committed misconduct during jury argument by commenting upon appellant’s courtroom demeanor and accusing his defense counsel of lying, (4) the trial court abused its discretion by denying appellant’s request for juror identification information, and (5) cumulative prejudicial error occurred.
DISCUSSION
1. The Trial Court Did Not Err by Admitting Evidence of Appellant’s Prior Assault on Reygadas.
Appellant claims other crimes evidence of his 2001 assault upon the decedent was inadmissible. For the reasons discussed below, we conclude the evidence was relevant to motive, identity, and intent to kill, and was not excludable under Evidence Code section 352. Even if evidentiary error occurred, the issue in this case was identity, and there was ample evidence that appellant was the person who committed the murder; therefore, no prejudicial error occurred.
a. Pertinent Facts.
On June 9, 2004, appellant filed a motion to exclude evidence of uncharged offenses, namely, appellant’s assault upon Reygadas over 19 months before Reygadas was killed. The written motion urged the evidence was irrelevant and excludable under Evidence Code section 352.
The following evidence was presented at the related June 10, 2004 Evidence Code section 402 hearing out of the presence of the jury. On August 12, 2001, Reygadas and Elizabeth, appellant’s sister, were outside Gomez’s house in the 11800 block of Berendo. Reygadas and Elizabeth had been dating a long time. Appellant approached Reygadas and hit him, knocking him out. Gomez intervened but appellant knocked him out. Appellant’s friend kicked Gomez in the face. Appellant and his friend left.
After the presentation of evidence at the Evidence Codes section 402 hearing, the prosecutor urged that appellant and Reygadas had a bad relationship because Reygadas was dating appellant’s sister. The prosecutor also urged that evidence of that relationship was relevant to prove appellant’s motive to kill Reygadas.
The court tentatively ruled that evidence of the dating relationship and appellant’s assault upon Reygadas was relevant to show there was bad relationship between appellant and Reygadas, and notwithstanding the passage of time from the assault to the present offense. The court suggested the evidence was relevant to appellant’s motive and intent.
Appellant argued the assault was perhaps evidence that appellant disliked Reygadas but not evidence that appellant had a motive to kill him, and there would effectively be two trials, namely, one concerning the assault, the other for the present offense.
The prosecutor argued there was not only evidence that appellant assaulted Reygadas, but that Reygadas’s relatives later confronted appellant. The prosecutor urged this was evidence of a prior history of violence which was relevant to prove appellant’s motive, and the evidence was not more prejudicial than probative. The prosecutor argued the assault was not remote, and represented that during a portion of the period after the assault but before the present offense, appellant was in prison and Reygadas lived in Reno. The court ruled that evidence of appellant’s assault on Reygadas was relevant, and not excludable under Evidence Code section 352.
On this issue the following occurred: “[The Prosecutor]: . . . [¶] But I believe Mr. Diaz did serve some time on something else. Went to state prison during that time period. . . . [¶] [The Court]: I know you’re stating that in good faith. You filled in a gap. [The Prosecutor]: Correct. [¶] [The Court]: Go ahead. [¶] [The Prosecutor]: That would take into account the time frame. Because he was not available. Also -- I can present testimony to the court that [Reygadas] also lived in Reno as well as here. [¶] So he wasn’t in this neighborhood on a sort of a regular basis.”
Later, after the jury was sworn, but before the presentation of evidence, the prosecutor asked the court to modify its ruling to permit the introduction of the following additional proffered evidence. After appellant’s assault on Reygadas, Reygadas and his relatives, armed with baseball bats and other items, went to 119th and Vermont to continue the fight. Once there, Reygadas’s group saw appellant and other people, but appellant, who was unarmed, left. The prosecutor urged that evidence of this additional confrontation was relevant to show that appellant committed the present offense in retaliation for that confrontation.
Appellant urged the additional proffered evidence was irrelevant, the only evidence he had heard (presented at the Evidence Code section 402 hearing) was that there had been only one baseball bat, and the additional proffered evidence pertained to an incident that occurred an hour after appellant’s assault on Reygadas. The court modified its ruling as requested by the prosecutor. At trial, evidence was presented as to appellant’s assault on Reygadas, and the later events at 119th and Vermont, as reflected in our Factual Summary ante. We will recite additional facts below where relevant.
b. Analysis.
Appellant claims the trial court prejudicially erred by receiving evidence of appellant’s August 12, 2001 assault upon Reygadas. We disagree. The trial court ruled admissible (1) the evidence of appellant’s initial assault upon Reygadas and (2) the evidence that Reygadas and his armed group later confronted appellant. Evidence of prior quarrels between the same parties is relevant to the issue of identity, and the requirement of a distinctive modus operandi common to the prior and charged acts does not apply in such circumstances. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 585-586 [and cases cited].)
Witnesses at the Evidence Code section 402 hearing testified to appellant’s 2001 assault upon Reygadas. Moreover, as part of his statement to detectives, appellant admitted he fought with Reygadas. Appellant, as part of his present contention, discusses his motion to exclude his statement to detectives. To the extent he complains that that portion of his statement in which he admitted the fight should have been excluded, we reject that complaint for the reasons discussed below. To the extent he otherwise complains his statement should have excluded, we address that issue in part 2 of the Discussion.
Moreover, we note “‘Evidence tending to establish prior quarrels between a defendant and decedent and the making of threats by the former is properly admitted . . . to show the motive and state of mind of the defendant.’ [Citations.]” (People v. San Nicolas (2004) 34 Cal.4th 614, 668.) We similarly believe that evidence tending to establish prior quarrels between a defendant and decedent and the making of threats by the latter may properly be admitted to show, through their effect upon the defendant, the latter’s motive and state of mind. “‘Evidence showing jealousy, quarrels, antagonism or enmity between an accused and the victim of a violent offense is proof of motive to commit the offense.’” (People v. Zack (1986) 184 Cal.App.3d 409, 413, quoting People v. Daniels (1971) 16 Cal.App.3d 36, 46.)
In the present case, the above mentioned combined evidence was evidence of prior quarrels. It was also evidence of a threat to kill, or commit serious bodily injury upon, appellant. Evidence was presented at trial that Reygadas and his confederates, at least one of whom was armed with a bat, went to appellant’s house to assault him. We believe the combined evidence was thus relevant and highly probative on the issues of identity, appellant’s retaliatory motive, and his retaliatory state of mind. Appellant, by his not guilty plea, raised these issues, and took no action to narrow the prosecution’s burden of proof on them. (People v. Ewoldt (1994) 7 Cal.4th 380, 400, fn. 4.)
Moreover, a trial court enjoys broad discretion under Evidence Code section 352, in assessing whether probative value outweighs undue prejudice, confusion, or consumption of time. (People v. Brown (2000) 77 Cal.App.4th 1324, 1337.) The combined evidence was not more inflammatory than the facts of the present offense. The 2001 incidents were not too remote in time (cf. People v. Ewoldt, supra, 7 Cal.4th at p. 405; People v. Zepeda (2001) 87 Cal.App.4th 1183, 1212), and usually any remoteness of evidence goes to weight, not admissibility. (People v. Archerd (1970) 3 Cal.3d 615, 639.) We note on the issue of remoteness that appellant did not dispute during the admissibility hearing that, during a portion of the period after the 2001 incidents but before the present offense, appellant was in prison and Reygadas was in Reno, with the result that, during that portion of the period, appellant was precluded from assaulting Reygadas. Moreover, this is not a case in which the other crimes evidence was “cumulative regarding an issue that was not reasonably subject to dispute.” (People v. Ewoldt, supra, at p. 406.) The evidence was relevant to the issue of identity, and appellant concedes his defense was mistaken identification.
The fact that no evidence was presented that appellant had been convicted for the 2001 assault increased the risk that the jury would convict him of the present offense to punish him for the prior one. However, People v. Frazier (2001) 89 Cal.App.4th 30, facing a similar issue (and without indicating whether the defendant had been convicted of the prior offenses there at issue) observed, “A risk does exist a jury might punish the defendant for his uncharged crimes regardless of whether it considered him guilty of the charged offense . . . . This risk, however, is counterbalanced by instructions on reasonable doubt, the necessity of proof as to each of the elements of [the charged offense] . . . , and specifically that the jury ‘must not convict the defendant of any crime with which he is not charged.’” (Id. at p. 42.)
Here too, the court instructed the jury, using CALJIC No. 2.90, on reasonable doubt and, using CALJIC No. 8.10, on the necessity of proof as to each of the elements of murder. Moreover, after testimony was received at trial concerning the 2001 incident, the court instructed the jury that they were to consider it only on the issue of motive or intent. Further, during its final charge to the jury, the court, using CALJIC No. 2.50 (1998 revision), instructed that other crimes evidence was to be considered only on the issue of motive. We presume the jury followed the instructions. (Cf. People v. Sanchez (2001) 26 Cal.4th 834, 852; People v. Callahan (1999) 74 Cal.App.4th 356, 372.) The trial court did not err by receiving evidence of appellant’s August 12, 2001 assault on Reygadas.
Finally, even if the claimed evidentiary error occurred, there is no dispute that someone committed first degree murder upon Reygadas. The issue was identity. Sampson identified the Nissan’s front seat passenger in a photographic lineup. Sampson positively identified at the preliminary hearing the front seat passenger, and testified there that he got a good look at him. The jury received the various pretrial photos of the front seat passenger. There is no dispute that the photograph Sampson selected from the photographic lineup depicted appellant. Nor is there any dispute that the person whom Sampson identified at the preliminary hearing was appellant, or that the pretrial photographs, including the large photograph, depicted him. The jury could observe appellant and compare his appearance with the pretrial photographs. The jury also reasonably could have concluded that appellant changed his appearance at trial to prevent being identified as the killer.
The fact that there may have been conflicting evidence on this issue does not alter our analysis.
Moreover, during jury deliberations, the jury, on June 22, 2004, requested copies of the transcripts of deputies’ interviews of Sampson, appellant, and Smith, and the transcripts were provided. Later that day, the jury requested a readback of Sampson’s testimony, and the readback occurred. On June 24, 2004, however, the jury, in its last request (quoted below), asked if the jury had to be unanimous regarding whether the murder was of the first degree and, if the jury was not unanimous, was the result automatically second degree murder. The question reasonably may be viewed as indicating that, by the time the jury posed that question, the jury had resolved the identity issue against appellant and had turned to the issue of the degree of the murder he committed. The claimed evidentiary error was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.) Appellant has failed to demonstrate that receipt of the evidence violated due process. (Cf. People v. Catlin (2001) 26 Cal.4th 81, 122-123.)
See part 4.a., post.
2. The Trial Court Did Not Err by Admitting in Evidence the Detective’s Interview of Appellant.
Appellant claims the trial court erred by admitting in evidence his denial of involvement in the shooting, and a detective’s hearsay statements of the detective’s theory of the case. However, for the reasons discussed below, we conclude evidence that appellant denied involvement in the shooting, when considered with the ample evidence of his guilt, was evidence of fabrication and consciousness of guilt. The detective statements were not inadmissible opinion but statements designed to be considered with appellant’s responses. Moreover, the statements were therefore nonhearsay to which Crawford did not apply.
a. Pertinent Facts.
On March 26, 2003, Los Angeles County Sheriff’s Department Sergeant Richard Garcia and Los Angeles County Sheriff’s Detective Richard Ramirez interviewed appellant at the sheriff’s station after he waived his Miranda rights. Appellant denied involvement in the shooting of Reygadas and appellant presented an alibi. He advised the detectives as to his alleged whereabouts until 8:30 p.m. on the night of the shooting. At 8:30 p.m., he left the house of a female named Nasha. At some point after appellant left for home, he dropped off a person named Louie where Louie’s car was located. Appellant arrived home right before 9:00 p.m., and remained there until the next morning.
Miranda v. Arizona (1966) 384 U.S. 436.
Appellant guessed he was in an Acura when the shooting occurred because he was en route home. Appellant both acknowledged and denied that he was in the area. Appellant made other contradicting statements. He denied that on the night of the shooting, anyone was with him in his car. He then said he was with Louie. He subsequently denied he was with Louie, and appellant claimed he dropped Louie off at Nasha’s house.
During the interview, Ramirez made five statements about which appellant complains (other than his statement denying his involvement). The statements are quoted and enumerated below. Ramirez asked appellant during the interview if he was in the suspect car when the shooting happened. Appellant replied no. Ramirez later said, (1) “So you’re in the area. Somebody identifies you to be the passenger of the vehicle. You don’t like this guy.” Ramirez later said, (2) “You don’t like the guy. He’s still dating your sister periodically. ‘Cause we talked to . . . your girlfriend.” Still later, Ramirez said, (3) “It’s a whole lot of things we put together here, partner. It’s not just a matter of one thing. Just because somebody says that they throw you in the mix. It’s [a lot] of things.”
Subsequently, Ramirez said, (4) “So what are we saying here Enrique is the guy identified you . . . we got to go fight this in court?” (Sic.) Appellant indicated no. Ramirez also said, (5) “We got a whole bunch of stuff here you’re in the area. [¶] . . . [¶] . . . they had a small car. Matching your car . . . .” A redacted transcript of the interview including the above quoted statements was admitted in evidence.
b. Analysis.
(1) Evidence of Appellant’s Denial of Involvement Was Relevant.
Appellant, citing People v. Allen (1976) 65 Cal.App.3d 426 (Allen), claims his denial during the interview that he was involved in the shooting of Reygadas was not an admission of guilt and, therefore, should have been excluded as irrelevant. Allen held that certain statements by the defendant in that case, proffered as evidence that he was admitting a theft, should have been excluded as irrelevant. (People v. Hamilton (1985) 41 Cal.3d 408, 428, fn. 12; Allen, supra, at pp. 431-434.)
We reject appellant’s claim. An appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including a ruling concerning the relevance of evidence. (People v. Waidla (2000) 22 Cal.4th 690, 717.) Appellant’s denial, in and of itself, was not, of course, an admission of guilt. However, more evidence was presented than merely appellant’s denial. Appellant made conflicting alibi statements, including conflicting statements as to whether Louie was with him around the time Reygadas was killed. The People presented evidence, other than appellant’s statements, that appellant killed Reygadas. Thus, evidence of appellant’s denial was, when viewed with other evidence of appellant’s guilt, relevant to show his denial was a fabrication evidencing consciousness of guilt and that he in fact killed Reygadas.
In Donchin v. Guerrero (1995) 34 Cal.App.4th 1832 (Donchin), this issue arose in a civil case, but the court resolved it relying upon principles employed in criminal cases. The appellate court stated, “The law of California and other jurisdictions has long recognized a false exculpatory statement is evidence of a guilty conscience in the context of criminal cases. The underlying principle is that a false statement is evidence of a declarant’s state of mind and demonstrates his knowledge he has committed a wrong. Furthermore, from this consciousness of guilt the jury is entitled to infer other facts bearing on a defendant's guilt. . . .
“For example, in People v. Mendoza (1987) 192 Cal.App.3d 667 [238 Cal.Rptr. 1] the Court of Appeal affirmed the trial court’s judgment . . . . The issue on appeal was whether a defendant’s exculpatory statements to police officers may be used to show his consciousness of guilt and therefore his guilt. . . . [The defendant’s] statement, although exculpatory, was false. [¶] The court held the defendant’s statement was contradicted and hence proven false by the officers’ statements. The court explained, ‘[f]alse statements which “are apparently motivated by fear of detection, . . . suggest there is no honest explanation for the incriminating circumstances” and may be used as evidence of the accused’s guilt.’ [Citation.] [¶] This principle is well settled under California law. [Citations.]” (Donchin, supra, 34 Cal.App.4th at pp. 1841-1842.)
The trial court did not abuse its discretion by failing to exclude, as irrelevant, evidence of appellant’s denial of his involvement in the killing. Allen does not compel a contrary conclusion. In any event, for the reasons discussed in our analysis of the issue of prejudice in part 1 of our Discussion, the claimed error was not prejudicial. (People v. Watson, supra, 46 Cal.2d at p. 836.)
(2) The Court Did Not Erroneously Admit Evidence of Ramirez’s Theory and Opinions.
Appellant, citing People v. Killebrew (2002) 103 Cal.App.4th 644 (Killebrew), claims the trial court erroneously admitted Ramirez’s theory of the case, and his opinion concerning appellant’s motive, intent, and credibility. He asserts Ramirez made it clear during the interview that he believed appellant had a motive to kill Reygadas because he was dating Elizabeth, Ramirez disbelieved appellant’s responses, and Ramirez believed appellant was involved in the shooting of Reygadas. Appellant cites the five previously enumerated statements of Ramirez to support appellant’s claim. We reject it.
Ramirez’s questions and statements during the interview were not independent opinion evidence concerning appellant’s credibility or guilt. They were designed to elicit responses from appellant concerning those issues, and were to be considered in connection with those responses. Appellant’s responses provided relevant evidence of a prior history of quarrels between appellant and Reygadas which, when considered with other People’s evidence, provided evidence of motive and intent to kill. Moreover, those responses, especially when viewed with the People’s evidence, provided evidence that appellant’s denial of involvement was a fabrication (see Donchin, supra, 34 Cal.App.4th at pp. 1841-1842), that he lacked credibility, and that he was involved in the shooting of Reygadas.
Appellant’s citation to Killebrew is inapposite. Killebrew reversed the judgment in a case in which (and unlike the situation in the present case) (1) the sole evidence of the elements of a crime was the testimony of a police gang expert, (2) the expert erroneously testified as to the ultimate issues of the defendant’s subjective knowledge and intent, and (3) the trial court admitted that testimony under the mistaken notion that all officers’ opinions on gangs were admissible. (Killebrew, supra, 103 Cal.App.4th at pp. 649-659.) In any event, for the reasons discussed above in our analysis of the issue of prejudice in part 1 of the Discussion, the claimed error was not prejudicial. (People v. Watson, supra, 46 Cal.2d at p. 836.)
(3) Ramirez’s Statements Were Not Inadmissible Hearsay Violative of Appellant’s Right to Confrontation.
Appellant claims Ramirez’s statements during the interview constituted inadmissible hearsay, the admission of which in evidence violated appellant’s right to confrontation under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). Appellant cites the five previously enumerated statements of Ramirez to support appellant’s claim. We reject it.
Evidence of Ramirez’s statements was admissible, not for their truth, but as evidence of statements designed to elicit responses from appellant concerning his involvement in the killing of Reygadas. Ramirez’s statements were to be considered in connection with those responses, including any admissions by appellant of what Ramirez stated. Ramirez’s statements were thus admissible as nonhearsay. The admission in evidence of nonhearsay does not violate Crawford. (Cf. People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6 (Cage); People v. Combs (2004) 34 Cal.4th 821, 843-844.) Appellant claims the use of his statement permitted Ramirez to recite “inadmissible hearsay upon which his opinions were based.” Again, to the extent Ramirez based his opinion on extrajudicial statements, they were nonhearsay with which Crawford is unconcerned. (Cage, at p. 975, fn. 6; People v. Thomas (2005) 130 Cal.App.4th 1202, 1208-1210.)
3. The Court Did Not Err by Denying Appellant’s Motion for a Mistrial.
Appellant claims the trial court erroneously denied his motion for a mistrial made after a testifying detective impermissibly referred to gang evidence. We conclude, for reasons discussed below, that, although the trial court made clear it did not want testimonial gang references, the detective’s reference to gang investigations was brief, the trial court suggested it was appropriate in context and indicated it had no impact on the jury, and there was ample evidence of appellant’s guilt.
a. Pertinent Facts.
Prior to voir dire of prospective jurors, the court, with exceptions not pertinent here, indicated there would be no references to gangs. During the defense presentation of evidence, the following occurred during the direct examination of Los Angeles County Sheriff’s Detective Louie Aguilera: “Q [Defense Counsel]: . . . what steps were you trained to do to avoid contamination of an eyewitness identification in a photo lineup? [¶] A I’ve had over 80 hours of in-service training in regards to gang investigations, with all types of investigations. That would be the six pack lineup identification, witness interviews, suspect interviews. Over 80 hours of that. [¶] I’ve conducted six packs in lineups throughout the 18 years I’ve been on the sheriff’s department.”
The court interrupted and indicated Aguilera’s statement was nonresponsive. The court asked the reporter to read back the question, the reporter did so, and the court asked if appellant wanted Aguilera to continue with his answer, or specifically answer about contamination. Appellant’s counsel replied, “Like to strike the answer, and ask what steps you have been trained to use to avoid a [sic] having an innocent person identified.” Appellant did not state the basis for his motion to strike, or then refer to Aguilera’s reference to gang investigations. After appellant’s counsel made the statement quoted immediately above, the prosecutor objected and the court sustained the objection.
At sidebar, the court indicated appellant had not objected when Aguilera referred to a gang investigation. The court indicated it believed appellant failed to object for tactical reasons. The court also indicated it did not interrupt when Aguilera made the gang reference because the court did not want to emphasize it. Appellant did not then state whether it was because of tactical reasons that he failed to object.
After the court’s comments, the prosecutor indicated he had told Aguilera not to mention gangs. The court stated it thought Aguilera’s answer was nonresponsive, the court would allow appellant to question Aguilera on his training as it related to avoiding contamination in lineups, but the court hoped Aguilera would not “blurt out gangs again.” Appellant indicated he would withdraw his question. Appellant did not secure a ruling on his motion to strike.
After Aguilera finished testifying, appellant’s counsel commented that Aguilera was very antagonistic toward the defense, he deliberately introduced gang evidence and, as a result, appellant was moving for a mistrial. The court disagreed and stated, “as far as the witness being antagonistic towards you, I think the answer to your question is I wished he hadn’t.” (Sic.) The court commented that when appellant asked Aguilera about his qualification to conduct photographic lineups, it was true that he was assigned to the gang unit, or was at certain times. The court asked if Aguilera was still so assigned, and the prosecutor replied yes.
The court then stated, “That’s part of his training and experience. Again, you didn’t make any objection for tactical reasons, not to upset the jury. I didn’t say anything. Went right over their heads. [¶] So the motion for mistrial is denied.”
b. Analysis.
A mistrial motion should be granted only when the moving party’s chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 283.) “‘“Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” [Citation.]’ [Citation.]” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1154.) Therefore, we review a trial court’s ruling on whether to grant a mistrial for abuse of discretion. (People v. Ayala, supra, at p. 283.)
In the present case, Aguilera made a single brief reference to gang investigations. Appellant made a motion to strike, but never moved to strike the gang reference in particular. Appellant’s motion to strike may have been based merely on the ground that Aguilera’s testimony concerning training was nonresponsive. Appellant never claimed it was for tactical reasons, that is, avoiding further gang references in front of the jury, that he failed to move to strike the gang reference. Appellant may have failed to move to strike the reference because he thought it was either a legitimate part of Aguilera’s response to appellant’s question, or because that portion of the response was innocuous.
Appellant did not think the gang reference was so irreparably damaging that he mentioned it prior to the mistrial motion. When appellant later, as part of the mistrial motion, urged Aguilera was antagonistic and deliberately introduced gang evidence, the court disagreed and suggested the gang reference was appropriate as part of Aguilera’s answer concerning his training and experience. The court indicated the jury had not paid attention to the gang reference. For the reasons discussed in our analysis of the issue of prejudice in part 1 of our Discussion, there was ample evidence that appellant was the person who killed Reygadas. The trial court did not abuse its discretion by denying appellant’s motion for a mistrial. (Cf. People v. Welch (1999) 20 Cal.4th 701, 749-750.)
4. The Court Did Not Err by Giving CALJIC No. 8.25.1.
Appellant claims the trial court erred by instructing the jury on first degree drive-by murder using CALJIC No. 8.25.1 after jury deliberations commenced. For the reasons discussed below, we conclude appellant received adequate notice of the first degree drive-by murder theory, the court properly instructed the jury on first degree deliberate and premeditated murder, and the facts supporting that instruction supported CALJIC No. 8.25.1. Moreover, although the court gave CALJIC No. 8.25.1 only after jury deliberations had commenced, appellant never asked to reopen the presentation of defense evidence or jury argument.
a. Pertinent Facts.
A felony complaint charged appellant with murder (Pen. Code, § 187) with personal use of a firearm (Pen. Code, § 12022.53, subd. (b)). The complaint also alleged personal use of a firearm by a principal during the commission of a gang-related felony. (Pen. Code, § 12022.53, subd. (e)(1)).
Penal Code section 12022.53, subdivision (b), states, “Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), and who in the commission of that felony personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply.” Murder is a felony specified in Penal Code section 12022.53, subdivision (a).
Penal Code section 12022.53, subdivision (e)(1), states, in relevant part, “The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: [¶] (A) The person violated subdivision (b) of Section 186.22. [¶] (B) Any principal in the offense committed any act specified in subdivision (b), . . .” The complaint also alleged that appellant had a prior prison term for purposes of Penal Code section 667.5, subdivision (b).
In our analysis post, we rely on the fact that the preliminary hearing evidence put appellant on notice that the People intended to establish at trial that appellant committed first degree drive-by murder. We set forth that evidence here. During the preliminary hearing, Sampson testified that about 8:45 p.m. on a day in March 2003, he was standing on the sidewalk at 119th and Berendo, about five cars behind a parked ice cream truck, when he saw a blue car, and then a black Nissan car, pass by him. Sampson had seen the blue car driving around the neighborhood, and had seen Reygadas driving in the neighborhood. Sampson identified Reygadas as the sole occupant of the blue car. The Nissan had two Hispanic occupants, and Sampson identified appellant as the Nissan’s front seat passenger. As between the Nissan’s occupants, appellant was closer to Sampson.
After both cars drove around a parked ice cream truck, Sampson heard six or seven rapidly fired shots. The shots were fired too quickly to have been fired from one gun, and Sampson concluded about two guns had been fired. When Sampson heard the shots, he looked around but did not see anyone on the street with a gun. The shots were fired from the direction of the ice cream truck, and the black car was right next to the ice cream truck. Sampson did not see anyone in the truck fire shots. At the time, the ice cream vendor was selling ice cream to about four children who were standing on the passenger side of the truck. The ice cream truck was between those children and the blue car.
After the shots were fired, the vendor continued selling ice cream. The blue car drove slowly onto a curb, and the Nissan, which never stopped, drove away. After the vendor finished selling ice cream, he drove away. Sampson found a shotgun shell in the street in front of the ice cream truck, and where the black car had been at the time of the shooting.
After the shots were fired, Sampson did not see anyone run on the street, the only pedestrians he saw were the persons right around the ice cream truck, and Sampson saw no other vehicles except the blue car, the Nissan, and the ice cream truck. Sampson also testified there were vehicles parked on both sides of the street when the incident occurred. The parties stipulated for purposes of the preliminary hearing that a coroner determined that Reygadas died as a result of multiple firearm wounds.
Appellant moved to dismiss the complaint on the ground there was insufficient evidence that appellant was the person who committed the crime. The magistrate replied that Sampson “seem[ed] to be pretty confident that the defendant is the person that he saw in the vehicle.” The magistrate denied the motion.
The magistrate held appellant to answer for the murder and asked what was the People’s theory as to the Penal Code section 12022.53 allegation. The prosecutor urged Sampson had heard gunshots in such rapid succession that they had to have come from multiple firearms and, since appellant was the passenger in the Nissan and its driver never stopped, appellant had to have personally fired a firearm. The prosecutor did not expressly refer to the Penal Code section 12022.53, subdivision (e)(1) allegation.
Appellant urged Sampson did not know how many people were in the Nissan, Sampson never saw a weapon, and it was “pure speculation as to who did what.” The magistrate held appellant to answer on the “special allegations.” Appellant did not, during argument on his motion to dismiss, argue that the shooter was not inside a vehicle when the shots were fired.
In our analysis post, we also rely on the fact that the information put appellant on notice that the People intended to establish at trial that appellant committed first degree drive-by murder. We set forth the pertinent facts here. The August 2003 information alleged in statutory language that murder was committed by appellant, who “did unlawfully, and with malice aforethought murder” Reygadas. The information also alleged that a “principal personally used a firearm” within the meaning of “Penal Code section 12022.53 (b) and (e)(1).” On June 18, 2004, the information was amended by the deletion of the Penal Code section 12022.53, subdivision (b) and (e)(1) allegations, and by the addition of a Penal Code section 12022.53, subdivision (d), allegation.
Penal Code section 12022.53, subdivision (d), states, in relevant part, “Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), . . . and who in the commission of that felony intentionally and personally discharges a firearm and proximately causes great bodily injury . . . or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life.” Murder is a felony specified in Penal Code section 12022.53, subdivision (a). (Pen. Code, § 12022.53, subd. (a)(1).)
Appellant was represented by the same counsel at the preliminary hearing, at arraignment on the information, and at trial. During jury argument, the People argued appellant committed murder by shooting from the Nissan into the Cadillac, and that this was first degree deliberate and premeditated murder for purposes of Penal Code section 189. The prosecutor did not expressly rely on the theory that appellant committed a first degree drive-by shooting for purposes of that section. On the other hand, appellant argued he was misidentified, noting that Sampson picked up the shotgun shell.
The court gave standard instructions on murder, malice aforethought, deliberate and premeditated murder, and unpremeditated murder of the second degree. The court also instructed on “doubt whether first or second degree murder” (CALJIC No. 8.71) and on “unanimous agreement as to offense -- first or second degree murder or manslaughter” (CALJIC No. 8.74). CALJIC Nos. 8.71 and 8.74 were on pages 40 and 41, respectively, of the written instructions delivered to the jury.
The jury commenced deliberations on June 22, 2005, and continued deliberations through the next day. On June 24, 2005, during deliberations, the jury, at 11:20 a.m., sent a note to the court. The note stated, “We need clarification on pages 40 and 41 of the jury instruction as follows: [¶] Do we have to be unanimous whether the murder was of the first degree? [¶] If it is not unanimous, about 1st degree, is it automatically 2nd degree?” (Some capitalization omitted.)
During discussions with counsel, the court indicated it intended to tell the jury that whether they found the murder to be first or second degree, the finding had to be unanimous, and a jury’s failure to render a unanimous verdict that the murder was of the first degree did not mean that the murder was automatically second degree murder. The court also indicated that it had become aware that, according to Penal Code section 189, first degree murder includes “any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, . . .” (hereafter, first degree drive-by murder). The court indicated it had erroneously failed to instruct on that theory of first degree murder, and the court proposed to instruct on the issues using CALJIC No. 8.25.1 and a modified CALJIC No. 3.31.
Penal Code section 189, states, in relevant part, “All murder which is perpetrated . . . by any other kind of willful, deliberate, and premeditated killing, . . . or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.”
CALJIC No. 3.31, as modified, read: “In the determining the degree of the crime charged in Count 1, Murder, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the degree of murder to which it relates is not committed. [¶] The discharge of a firearm from a motor vehicle must be an intentional shooting at a person outside of the vehicle and the act must be done with the specific intent to cause death.
CALJIC No. 8.25.1 reads: “Murder which is perpetrated by means of discharging a firearm from a motor vehicle intentionally at another person outside of the vehicle when the perpetrator specifically intended to inflict death, is murder of the first degree.” The court also proposed to reread CALJIC No. 1.01, which instructed, inter alia, that instructions were to be considered as a whole.
Appellant urged the court should merely answer yes to the jury’s first question and no to the jury’s second question, and further instructing the jury would be highly prejudicial because it would highlight the drive-by shooting theory and he had no notice the court would instruct the jury on that theory. Appellant did not request that he be permitted to reopen (1) the presentation of defense evidence or (2) jury argument. After further argument on the issues, the court noted the jury had not stated they were deadlocked, but had asked for clarification. The court overruled appellant’s objection.
After a lunch break, the court, at 1:20 p.m., instructed the jury consistent with the court’s proposal. The court included CALJIC No. 8.25.1 and the modified CALJIC No. 3.31 with the jury’s written instructions, and returned them to the jury. At 1:25 p.m., the jury resumed deliberations and, at 1:40 p.m., the jury notified the court that the jury had reached a verdict.
b. Analysis.
Appellant claims the failure of the information to allege drive-by murder as a theory of first degree murder, and the court’s instruction on that issue for the first time by giving CALJIC No. 8.25.1 to the jury after its question about degrees of murder, precluded him in violation of due process from cross-examining, and presenting jury argument, on a new prosecutorial theory. We disagree.
Appellant was represented by the same attorney at the preliminary hearing, at arraignment on the information, and at trial. We have recited the pertinent testimony of Sampson at the preliminary hearing. That testimony gave appellant adequate notice of the People’s intent to establish at trial that, inter alia, appellant committed first degree drive-by murder in violation of Penal Code section 189.
The information alleged murder in statutory language, and there was no need for the information to allege the theory under which appellant committed murder or first degree murder. (Cf. People v. Hughes (2002) 27 Cal.4th 287, 368-370.) Moreover, the information was amended by the addition of a Penal Code section 12022.53, subdivision (d), enhancement allegation, which put appellant on notice of the People’s intent to establish that he personally discharged a firearm during the murder. The evidence at trial, previously discussed in our Factual Summary, also alerted appellant to the first degree drive-by murder theory, including its requisite conduct and intent.
We have set forth the instruction on CALJIC No. 8.25.1, and there is no dispute it constitutes a correct statement of law and the elements of first degree drive-by murder under Penal Code section 189. There is no dispute the court properly instructed the jury on first degree deliberate and premeditated murder; the facts supporting that instruction supported an instruction on first degree drive-by murder. Significantly, even though it was after the jury had commenced deliberations that the court gave CALJIC No. 8.25.1, appellant never asked for permission to reopen the presentation of defense evidence or reopen jury argument to meet that instruction. He therefore waived any issue pertaining to the late giving of the instruction. (Cf. People v. Gurule (2002) 28 Cal.4th 557, 629.) In any event, no due process violation resulted from the failure of the information to allege first degree drive-by murder, or by the court’s instructing the jury with CALJIC No. 8.25.1. (Cf. People v. Hughes, supra, 27 Cal.4th at pp. 368-370.)
Moreover, it is settled that “‘[t]he court possesses an inherent power to cause the jury to be returned for further instructions, a power wisely employed whenever the judge becomes convinced that he has not made them fully to understand an appropriate proposition of law, . . .’ [Citation.]” (People v. Ray (1960) 187 Cal.App.2d 182, 189.) Again, CALJIC No. 8.25.1 correctly stated the law concerning first degree drive-by murder, and there is no dispute that the instruction was supported by substantial evidence. The court reread CALJIC No. 1.01 to minimize any emphasis of CALJIC No. 8.25.1. In light of the People’s evidence at trial and our analysis of the issue of prejudice in part 1 of our Discussion, there was ample evidence that appellant was the person who murdered Reygadas, and that the murder was of the first degree under deliberate and premeditated murder, and/or drive-by murder, theories. The jury rejected appellant’s misidentification defense. No prejudicial error resulted from the giving of CALJIC No. 8.25.1. Sheppard v. Rees (9th Cir. 1989) 909 F.2d 1234, does not compel a contrary conclusion. (People v. Lucas (1997) 55 Cal.App.4th 721, 738.)
5. Appellant Did Not Suffer Impermissible Multiple Convictions.
Appellant claims he suffered impermissible multiple convictions based on (1) his conviction for, he claims, first degree drive-by murder for purposes of Penal Code section 189, and (2) the true finding as to the Penal Code section 12022.53, subdivision (d) allegation.
“A judicially created exception to the general rule permitting multiple conviction ‘prohibits multiple convictions based on necessarily included offenses.’ [Citation.] ‘[I]f a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former.’ [Citation.]” (People v. Reed (2006) 38 Cal.4th 1224, 1227.) We have quoted Penal Code section 189, in pertinent part, at footnote 9 above. We have quoted Penal Code section 12022.53, subdivision (d), in pertinent part, at footnote 8 above.
We reject appellant’s claim for two reasons. First, the jury convicted appellant of first degree murder. The jury was not required to agree on a theory of first degree murder (People v. Carpenter (1999) 21 Cal 4th 1016, 1058), that is, whether, the murder was of the first degree because it was premeditated and deliberated, or whether it was first degree drive-by murder. The jury’s verdict did not specify a theory of the degree murder. The burden is on appellant to demonstrate error from the record (In re Kathy P. (1979) 25 Cal.3d 91, 102; People v. Garcia ( 1987) 195 Cal.App.3d 191, 198), and he has failed to demonstrate his premise that the jury convicted him of first degree drive-by murder.
Second, even assuming the jury convicted appellant of first degree drive-by murder, Penal Code section 12022.53, subdivision (d), is merely an enhancement. A firearm enhancement allegation may not be considered for purposes of determining whether a defendant has suffered impermissible multiple convictions for a greater offense and a lesser included offense. (Cf. People v. Wolcott (1983) 34 Cal.3d 92, 102 (Wolcott).) Appellant claims Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi), compels a different conclusion. We disagree. Apprendiheld that any fact other than a prior conviction that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) That requirement was met here with respect to the enhancement. Apprendi, resting on federal constitutional grounds, did not hold that an enhancement must be considered when determining the applicability of the state judicial rule that a defendant cannot be convicted of a greater offense and a lesser included offense. We are bound to follow Wolcott. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 .)
On November 29, 2005, we vacated the submission in this case and ordered consideration of this case deferred pending a decision by our Supreme Court in four cases (People v. Izaguirre (S132980), People v. Palacios (S132144), People v. Shabazz (S131048), People v. Sloan (S132605)), and/or pending further order of this court. In 2006, our Supreme Court decided the third of the four cases, People v. Shabazz (2006) 38 Cal.4th 55 (Shabazz). None of the others have been decided.
6. Imposition of Punishment for First Degree Murder and the Penal Code Section 12022.53, Subdivision (d), Enhancement Did Not Violate Penal Code Section 654 or the Merger Doctrine.
Appellant claims punishment for first degree murder and the Penal Code section 12022.53, subdivision (d), enhancement violated Penal Code section 654 and claims such punishment violated the merger doctrine. We reject appellant’s first claim, since the Legislature did not intend that Penal Code section 654 would prohibit imposition of a Penal Code section 12022.53, subdivision (d), enhancement, which applied here when first degree murder was committed in a particular manner. (Cf. People v. Sanders (2003) 111 Cal.App.4th 1371, 1375 ; People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312-1315; People v. Myers (1997) 59 Cal.App.4th 1523, 1530, 1533-1534; People v. Ross (1994) 28 Cal.App.4th 1151, 1155-1159.)
See footnote 11.
We also reject appellant’s merger claim. Appellant is effectively arguing that even as a defendant cannot be convicted of felony murder when the predicate felony is felonious assault because the assault merges with the homicide, so too a Penal Code section 12022.53, subdivision (d), enhancement cannot be found true when the substantive offense is first degree murder because the murder merges with the personal discharge of a firearm.
As mentioned, the jury made no finding as to the theory of first degree murder.
We reject the claim. The merger rule has not been applied outside of the felony-murder context. Nor, in particular, has its application been extended from preventing felony-murder convictions to preventing true findings on enhancements. Moreover, part of the rationale supporting application of the merger rule in the felony-murder context is that most homicides are based on assaults, and reliance on an assault as a predicate felony would subvert legislative intent by preventing proof of the requisite mental state for murder: malice aforethought. (People v. Hansen (1994) 9 Cal.4th 300, 311-312, 315.) However, we cannot say as a matter of law that most violations of Penal Code section 12022.53, subdivision (d), are based on first degree murders. Moreover, reliance on first degree murder to support a Penal Code section 12022.53, subdivision (d), enhancement did not subvert legislative intent by preventing proof of the requisite mental state of the enhancement. That mental state was proven beyond a reasonable doubt. No merger rule barred the true finding as to the Penal Code section 12022.53, subdivision (d), enhancement. (People v. Sanders, supra, 111 Cal.App.4th at pp. 1373-1375.)
7. The Prosecutor Did Not Commit Reversible Misconduct During Jury Argument by Commenting Upon Appellant’s Demeanor or Commenting That the Defense Was Lying.
Appellant claims the prosecutor committed misconduct during jury argument by commenting upon appellant’s courtroom demeanor. For reasons discussed below, we conclude appellant’s prosecutorial misconduct claims are unavailing because he failed to timely object to the alleged misconduct and request an appropriate admonition. Moreover, some of the complained of comments did not constitute impermissible comment on courtroom demeanor and, even if they did, there was no prejudice.
a. Any Comment on Appellant’s Demeanor Was Not Reversible Error.
(1) Pertinent Facts.
During opening argument, the prosecutor commented that appellant hated Reygadas enough to kill him and the jury would never know why. The prosecutor also argued that appellant had no alibi and knew details about the killing because he was there when it happened.
The prosecutor later argued the following concerning statements appellant made to detectives (and we italicize the comments about which appellant complains): “And what did he say? He said, ‘I wouldn’t say I didn’t like him. I would say, “Fuck that fool.”’ [¶] Because that’s who the defendant really is. Not someone who looks nice and neat and clean. But someone who uses words like ‘Fuck that fool.’ [¶] And that’s exactly how he felt about Angel Reygadas. About – he said Angel got smoked. Those are the types of words that the defendant would use. Because that’s the type of person that he is. [¶] Not the person who is being presented to you in court. Clean-shaven and with his hair grown out. That’s a lie. Just like the lie that he told the detectives when they interviewed him that he had nothing to do with [Reygadas’s] death.”(Italics added.) The prosecutor also commented that appellant tried to be smart and admit to detectives that he was in the general vicinity so if someone had seen him, he would have an excuse.
(2) Analysis.
Appellant claims the prosecutor committed reversible misconduct during jury argument by commenting upon his courtroom demeanor as indicated in the prosecutor’s above italicized comments. We disagree. Appellant failed to object on the ground of prosecutorial misconduct or request a jury admonition with respect to the prosecutor’s comments, which would have cured any harm. Appellant has waived the prosecutorial misconduct issue on appeal. (Cf. People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Clark (1993) 5 Cal.4th 950, 1016; People v. Mincey (1992) 2 Cal.4th 408, 471.)
Moreover, a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. (People v. Hill (1998) 17 Cal.4th 800, 819.)
To the extent the prosecutor commented that appellant told detectives that he would say about Reygadas “‘Fuck that fool,’” the prosecutor was referring, not to appellant’s courtroom demeanor, but to an extrajudicial statement by appellant. That comment, and the prosecutor’s later comment that appellant said that Reygadas was smoked, were reasonably susceptible to the interpretation that the prosecutor was conveying that appellant’s coarse language evidenced an animosity and callousness towards Reygadas that was relevant to appellant’s motive to kill and the issue of identity.
To the extent the prosecutor commented appellant was not the person who was being presented in court, the comment effectively urged the jury to disregard defendant’s courtroom demeanor, and there was no misconduct. (Cf. People v. Boyette (2002) 29 Cal.4th 381, 434; People v. Price (1991) 1 Cal.4th 324, 453-454.) Finally, there is no dispute Reygadas was murdered; the issue was identity. Sampson identified appellant, appellant thoroughly cross-examined Sampson on the issue, and the jury convicted appellant. In light of the People’s evidence at trial and our analysis of the issue of prejudice in part 1 of our Discussion, there was ample evidence that appellant was the person who murdered Reygadas, and that the murder was of the first degree under deliberate and premeditated murder, and/or drive-by murder, theories. Any alleged prosecutorial misconduct was not prejudicial. (Cf. People v. Watson, supra, 46 Cal.2d at p. 836.) Nothing the prosecutor did violated due process, or was so reprehensible or deceptive as to constitute prosecutorial misconduct. (Cf. People v. Gionis, supra, 9 Cal.4th at pp. 1214-1215.)
b. The Prosecutor’s Comment That the Defense Was Lying Was Not Reversible Prosecutorial Misconduct.
Appellant claims the prosecutor committed misconduct during jury argument by accusing his defense counsel of lying. For the reasons discussed below, we reject appellant’s claims because he failed to timely object to the alleged misconduct and request an appropriate admonition. Moreover, the prosecutor did not state that defense counsel was lying but only that the defense was lying, and the court’s corrective instruction cured any harm. Finally, any misconduct was harmless.
(1) Pertinent Facts.
During closing argument, the prosecutor commented, “Just as [appellant] lied to the detectives about his role in the murder of Angel Reygadas, the defense is lying to you now.” The prosecutor also commented as follows. A deputy had testified that he had assumed that Sampson and Smith were friends because they had been standing together. However, the jury had heard tape recorded statements of Sampson and Smith, and neither had said that the two were friends.
The prosecutor then stated, “But the defense needs you to believe that because that’s the only thing the defense has to hang their hat on, that these witnesses were lying.” The prosecutor commented that the deputy had “put that to rest when he told you . . . that that was the presumption he made. It wasn’t what [Sampson and Smith] said.”
Appellant posed an unspecified objection, requested to approach the bench, and the court granted the request. At sidebar, the following occurred: “[Appellant’s counsel]: It is prosecutorial misconduct for the prosecutor, or for any attorney, to accuse the other attorney of lying. And I would like a dismissal, or a sanction. [¶] The Court: What did you mean by your remark the defense had lied? [¶] [The Prosecutor]: I didn’t mean counsel was lying. I’m saying it’s not true, that that was the inference. That’s not the evidence. [¶] I said the defense is lying. I did not say counsel is lying. I chose my words carefully. Because I am not trying to impugn counsel’s integrity. But she said something that’s simply not true. So I phrased it that the defense is telling them something that is not true.”
The court indicated as follows. The parties had latitude in argument but the prosecutor’s choice of words was poor and could have been misconstrued by the jury. The prosecutor’s comments were not misconduct. The prosecutor had explained why she made the statement. The court knew the prosecutor wanted to be a strong advocate. The prosecutor could have said the defense misstated the evidence but the court preferred that the prosecutor not say that the defense lied.
Appellant asked the court to admonish the jury to form its own opinion. The court indicated it would instruct the jury that it was the finder of fact, but deny appellant’s request for further clarification. The court stated, “But I’ll admonish the jury to disregard the last remarks by the defense about lying.” The court admonished the jury, “you’re to disregard [the prosecutor’s] last statement about the defense lying.” Jury argument proceeded.
(2) Analysis.
Appellant claims the prosecutor committed reversible misconduct during jury argument by accusing appellant’s trial counsel of lying. We disagree.
Appellant failed to object, in timely fashion, on the ground of prosecutorial misconduct, and failed to request that the court admonish the jury to disregard the prosecutor’s comments, which would have cured any harm. Appellant has waived the prosecutorial misconduct issue on appeal. (Cf. People v. Berryman (1993) 6 Cal.4th 1048, 1072.) Moreover, a jury is presumed to have followed the court’s instructions. (People v. Sanchez, supra, 26 Cal.4th at p. 852.) The trial court instructed the jury to disregard the prosecutor’s statement about the defense lying, and this cured any harm. (Cf. People v. Prysock (1982) 127 Cal.App.3d 972, 998.)
8. The Court Properly Denied Appellant’s Motion for Disclosure of Juror Identification Information.
Appellant claims the trial court abused its discretion by denying appellant’s request for juror identification information. For the reasons discussed below, we conclude appellant failed to make a good cause showing that he was entitled to a hearing to determine if he should receive the identification information, since he showed little more than that the period during which the jury deliberated before the court gave CALJIC No. 8.25.1 was longer than the deliberation period following the giving of that instruction.
a. Pertinent Facts.
After the verdict, appellant moved the court to disclose jurors’ identifying information pursuant to Code of Civil Procedure section 237, so that appellant could prepare a motion for a new trial. The supporting declaration of appellant’s trial counsel indicated as follows. Counsel believed that during trial and/or during the jury’s deliberations, jury misconduct occurred. The belief was based on the following facts, in pertinent part. The jury deliberated over two days, then, on June 24, 2005, asked the clarifying questions previously quoted in our Discussion. The court, over appellant’s objection, gave to the jury for the first time CALJIC Nos. 3.31 and 8.25.1, and reread CALJIC No. 1.01. The jury then resumed deliberations and, 15 minutes later, notified the court that the jury had reached a verdict. According to appellant, the different lengths of deliberations before and after the court gave those instructions “raise[d] serious juror deliberation issues.”
See part 4.a., ante.
At the hearing on appellant’s motion, and following argument, the court made the following finding, which the court indicated it would reflect in its minutes: “The court finds that [defense counsel’s] declaration does not state sufficient facts to support her conclusion that jury misconduct occurred during deliberations, or that the jury reached its verdict without careful, thorough, and conscientious consideration of the evidence and the instructions. [¶] Further, her assertion of juror misconduct is speculative. While the law permits jurors to be questioned about actions that may be a violation of their oath, they cannot be questioned about the content of the deliberations or their thought process in reaching a particular verdict.”
The court then stated, “The reasons for the court’s findings are as follows: A significant portion of the evidence presented during the trial by the prosecution focused on the accuracy of the identification by Mitchell Sampson of the defendant as the person who murdered Angel Reygadas. [¶] [Defense counsel] vigorously challenged the accuracy of the identification testimony in her cross-examination of [Sampson] and in her closing argument. [¶] The presentation of the evidence and the arguments of counsel took three days. The jury deliberated two and a half days before sending out the note . . . . [¶] The court finds that it’s reasonable to infer from the content of the jury’s question . . . that the jury had reached a tentative verdict of guilty as to the crime charged. [¶] The jury’s question indicates that they were not unanimous as to the degree of the crime, and needed further clarification. [¶] The court answered the jurors’ questions, and gave further instructions regarding the degree of the crime. The jury then returned its verdict. [¶] Each juror was individually polled, and indicated the verdict read by the clerk was that juror’s personal verdict and finding. [¶] The court finds the defense has not made [a] prima facie showing of good cause justifying the release of . . . personal juror identifying information.”
b. Analysis.
Code of Civil Procedure sections 206, subdivision (f), and 237, subdivisions (b), (c), and (d), set forth procedures governing criminal defendants’ petitions for access to the court’s record of personal juror identification information. Code of Civil Procedure section 237, subdivision (b), states that “[t]he court shall set the matter for hearing if the petition and supporting declaration establish a prima facie showing of good cause for the release of the personal juror identifying information, . . .”
Moreover, a defendant makes the requisite good cause showing if a defendant makes a “good cause showing of juror misconduct.” (See People v. Jefflo (1998) 63 Cal.App.4th 1314, 1322.) Concerning proof of jury misconduct, we note that Evidence Code section 1150, subdivision (a) states: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”
Further, when deciding whether to deny a defendant’s petition for access to the court’s record of personal juror identification information, a trial court can properly consider the extent to which the evidence proffered in support of the petition would be excludable under Evidence Code section 1150, subdivision (a). (People v. Jefflo, supra, 63 Cal.App.4th at p. 1322; see People v. Jones (1998) 17 Cal.4th 279, 316-317.) Finally, we review a trial court’s denial of such a petition under an abuse of discretion standard. (People v. Jones, supra, at p. 317.)
The issue in this case is not whether appellant was entitled to the release of personal juror identification information. The issue is whether appellant’s petition made a prima facie showing of good cause for the release of that information, with the result that he was entitled to the hearing referred to in the above subdivisions.
We have set forth the pertinent facts. The trial court reasonably could have concluded that appellant was seeking juror identification information to obtain inadmissible evidence of the jurors’ thoughts and mental processes regarding the impact of CALJIC No. 8.25.1. We conclude the trial court did not abuse its discretion by concluding that appellant failed to make the requisite prima facie showing of good cause, and by denying his disclosure motion.
In light of our above resolution of appellant’s contentions, we reject his contention that cumulative prejudicial error occurred.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., ALDRICH, J.
In Shabazz, our Supreme Court held that where a defendant had been sentenced to life without the possibility of parole for first degree murder, Penal Code section 12022.53, subdivision (j), did not bar imposition of an enhancement pursuant to Penal Code section 12022.53, subdivision (d). Shabazz did not discuss the judicial rule barring multiple convictions for a greater offense and a lesser included offense, or whether, when a defendant has been convicted of an offense, that rule could apply to bar a true finding on an enhancement. Nor did Shabazz discuss Apprendi, or whether our Supreme Court’s decision in Wolcott was erroneous in light of Apprendi. Further, Shabazz did not discuss Penal Code section 654. Nonetheless, by letter dated January 27, 2007, and filed February 6, 2007, appellant urged he was entitled to a speedy resolution of his appeal and, in light of Shabazz, he believed there was no further reason for this court to defer decision. Accordingly, on March 15, 2007, we resubmitted the matter.