Opinion
No. A139460
05-30-2018
THE PEOPLE, Plaintiff and Respondent, v. EZELL EDWARDS et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. Nos. C171263A and C171263B)
Codefendants Ezell Edwards and Anthony Hoskins appeal from a judgment entered after a jury trial convicting them of the second degree murder of Brondon McDaniel and other charges and enhancements, for which they were sentenced to terms of 43 years to life and 60 years to life respectively. They assert Batson-Wheeler error, arguing the district attorney improperly struck the only two African-American prospective jurors because of the district attorney's racial bias. Hoskins, whom Edwards purports to join, also argues the trial court prejudicially erred by improperly admitting certain accomplice and informant testimony, uncharged offenses evidence and statements by Collier and Edwards against him; that he, Hoskins, received ineffective assistance of counsel; and that the court should not have ordered him to pay for a probation report.
We conclude there were no prejudicial errors or ineffective assistance of counsel and therefore affirm. We remand for resentencing of both defendants so that the trial court may exercise its discretion under Penal Code section 12022.53, subd. (h) regarding the firearm enhancements. We also direct that on remand the trial court should afford Edwards the opportunity to make a record of information relevant to his eventual youth offender parole hearing.
Except as otherwise indicated, further section references are to the Penal Code.
BACKGROUND
At trial, several witnesses testified about events relevant to this appeal.
Collier
Rashay Collier, Edwards's girlfriend at the time of the killing and a convicted felon, testified under a grant of use immunity. Collier said that prior to October 22, 2012, she had been in a relationship with Edwards for two and a half years, during which she gave birth to their child. She and Edwards lived at her mother's house in Oakland's Sobrante Park area and later in a duplex on 100th Avenue. Edwards kept several guns at their home, including a .40-caliber gun that he called "Jodie." Hoskins, a friend of Edwards, kept a revolver at their home.
According to Collier, McDaniel, the murder victim, was a friend's boyfriend and ran an illegal tax scam using fake W-2 forms. In 2011, Collier participated in the scam, getting more than $1,000. In February 2012, as she prepared to participate in someone else's scam, she learned her name had been used again. On February 4, 2012, she called McDaniel, who said he did not know what had happened and that he was having problems too. Collier called Edwards and told him to talk to McDaniel "man to man." Edwards came to Collier's house with Hoskins, and the two left to talk to McDaniel, using a Toyota Collier had rented for Edwards. Thirty minutes later, Edwards called her and said he and Hoskins had shot McDaniel.
About two hours after the call, Edwards and Hoskins came back to the house and the three sat together in a car smoking marijuana. Edwards was upbeat and happy, cracking jokes and laughing, and Hoskins had the same demeanor. Edwards said they confronted McDaniel at his house. McDaniel, angry that Hoskins was there, said he would be right back and started to turn around. Edwards, concerned McDaniel was going to get a gun, started shooting. Edwards and Hoskins said, "it took a lot of bullets to take [McDaniel] down because of him being a big guy," and talked about how the bullets affected McDaniel's body. Hoskins said he "domed" McDaniel, meaning shot him in the head, "to make sure that he was gone." Hoskins also talked about his gun jamming up. Collier thought Hoskins and Edwards were "proud" of shooting McDaniel. Neither expressed regret or remorse.
Collier also testified that several months later, in June 2012, Edwards called her and said he had been arrested in Oakland and that "Jodie," his gun, was gone. He later told her the police caught someone else with the gun.
Collier also said she eventually called McDaniel's girlfriend and told her the truth about McDaniel's murder. Collier also referred to a later call she had with the girlfriend "after Anthony had broke out of jail."
According to Collier, she broke up with Edwards on October 22, 2012. That day, she learned her house had burned down and received a text from Edwards that stated, "Watch the news, bitch; up in smoke." Edwards later told her that "[i]f he couldn't live there, no one would." When Collier sold two of Edwards's guns and kept some of his money, Edwards said he would shoot her. Collier was afraid of Edwards as a result. The court, after an objection by Hoskins's counsel, instructed the jury to consider this part of Collier's testimony regarding Edwards only.
Collier said she was testifying because she felt it was right and felt responsible for McDaniel's death. She was living out of state in a witness protection program. She was not being paid to testify and, although the district attorney paid for her expenses while she was in town, she was losing money because she had to take time off from work.
Witnesses Who Saw the Murder or the Perpetrators
Two witnesses testified about their observations around the time of the shooting. Ja'Rhonda Wright-Willard testified she was at McDaniel's house when she heard a shot or shots, looked out the window and saw a man shoot McDaniel three more times while standing directly in front of him. The man wore his hair in shoulder-length dreads and was of a thin build. In the statement she gave to police on the day of the shooting, she described him as "5'6-5'7, thin build, narrow face, dark complexion, black," with "[s]houlder-length dreads, clean shaven, wearing a black baseball cap with a red brim and an oversized, black-hooded sweatshirt, [and] blue jeans." She said he was "holding a black semi-automatic handgun" and was "shooting towards the ground." Five months later, she tentatively identified Hoskins as looking like the shooter and did not pick a photo of Edwards. Hoskins is over six feet tall. At trial, Wright-Willard identified Edwards as the shooter, was positive he was the one she saw shooting, and said she had only seen one person outside during the shooting.
Rafael Navarro testified that on February 4, 2012, he heard five or six gunshots, went to his bedroom window and, looking out, saw two black males running, one of whom had long dreads. Navarro did not see their faces or see guns and he did not identify defendants at trial.
Testimony About the Crime Scene
Officer Michele Melham of the Oakland Police Department (OPD) testified that she arrived at the scene of the shooting shortly after it happened and found a black man lying on the ground. Blood was coming from the rear of his pants, was around his head and chest area, and was pooling in his ear. He did not appear to be breathing and she could not find a pulse. He had brain matter in his hair. There were bullet casings scattered around his body and in the yard where he was laying. She summoned paramedics, who arrived within minutes and declared the victim deceased. Crime scene investigators found bullet casings, bullets and bullet jackets in the front yard, including several casings from a .45-caliber semi-automatic and several from a .40-caliber Smith & Wesson, as well as fragmented bullet slugs. There were eight .45-caliber cartridge cases, four .40-caliber Smith & Wesson cartridge cases, bullets and fragments. Several months later, after the police obtained "Jodie," it was determined that all the .40-caliber casings found at the scene were fired from it. Some of the bullets came from that gun as well. The .45-caliber casings were all determined to have been fired from one gun, but the gun was never identified. A loaded assault rifle was found in McDaniel's house, but nothing found at the scene came from it.
Ballistics Evidence
OPD firearms examiner Susan Malloy testified that the evidence she received in this case from the crime lab included eight .45-caliber cartridge cases and four .40-caliber cartridge cases, as well as bullets and bullet fragments. Malloy said cartridge cases are ejected from a semi-automatic gun when it fires. All .45-caliber cartridge casings and bullets had been fired from the same .45-caliber weapon. All .40-caliber cartridge casings and bullets were fired by a single firearm, the Smith & Wesson that was Exhibit 21 (identified by Collier as Edwards's gun, "Jodie"). The bullets identified as having been taken from the victim's torso were fired by the Smith & Wesson. The bullet identified as having been taken from his head was from the .45.
Autopsy Evidence
Autopsy evidence indicated McDaniel died of multiple gunshot wounds. There were seven entrance wounds on his body—on his head, chest, arm, thigh, buttock, knee and hand. There were also exit wounds on the chest, thigh, hand and arm. Authorities determined two bullets recovered from the torso were fired from "Jodie" and the one recovered from the head was fired from a .45. The trajectory of one bullet (which entered the right buttock and exited on the left front side of the chest) suggested McDaniel was shot at least once after falling to the ground.
Testimony of Lead Investigating Officer Tran
OPD Officer Phong Tran testified that he led the investigation into McDaniel's homicide. He first obtained evidence of Edwards's and Hoskins's involvement in the homicide in April 2012, when a man named Terrance White was arrested. White, who previously had served time for multiple felonies and misdemeanors, offered to provide information about the McDaniel shooting in exchange for leniency. White's statements to Tran were video-recorded, and that video was played for the jury.
Video-Recorded Statement of Terrance White
In this video-recorded statement, White, using nicknames and slang terms, indicated that he knew both Hoskins and Edwards. He said when he was in a jail pod with Hoskins two weeks earlier, Hoskins said he and Edwards were driving around robbing people on the street. They used a blue rental car that Collier probably rented for Edwards. At one point, Edwards pulled the car up, Hoskins got out of the car, walked up to a "dude" and "domed him," and Edwards shot the victim too. The victim was the "rapper boy in Sobrante Park," who White knew from the papers was "Brondon." White also told Tran that a few days earlier, Edwards had pulled a .40-caliber gun out of his car trunk because the gun's clip had fallen out when Edwards had shot someone the night before. He told Tran that Collier had been arrested on suspicion of robbery with Edwards. White identified Edwards's photograph from a "six pack" lineup, said he had known Hoskins for 30 years, and identified a photograph of Hoskins as well.
Inspector Nguyen's Testimony About White's Statements
Tai Nguyen, an inspector for the District Attorney's Office, testified that on June 10, 2013, he accompanied the district attorney to a courthouse jail facility to speak to White, who had been in custody with Hoskins in the same pod in Santa Rita Jail. White said Hoskins had made up a song that referred to having "domed this rapper and he spilled his noodles," meaning shot him in the head and caused some of his brain matter to come out. White also said he was a member of a gang and fearful of testifying in this case because "he had to be back on the street and we can't protect him out there." Also, White had told Nguyen in an earlier conversation that he was "risking his life by coming over here."
White's Testimony
White testified at trial that he made up his statements to Tran. At the time he made them, he was "heavy under drugs," "dead tired," had been offered money by Tran, was "kicking heroin; kicking crack cocaine," just wanted to "get some more dope in my system as quick as humanly possible" and would have told Tran anything to get out of jail. Tran told him what to say and he made up the story about Hoskins, hoping to get out of jail and to get money Tran had promised him. White never told the district attorney that Hoskins had said he "domed" McDaniel. White admitted telling the district attorney Hoskins told him McDaniel had "spilled his noodles."
Officer's Testimony About Finding a Gun During Traffic Stop
The prosecution presented other evidence about defendants' use of guns. OPD officers testified that they conducted a traffic stop of a black Toyota Corolla on Birch Street in Oakland on June 8, 2012, and found Edwards, Sedra Smith and Excel McKinley in the car. Smith had a loaded semi-automatic gun in his pocket. The gun, it was later determined, was Edwards's gun, "Jodie," the .40-caliber Smith & Wesson used in the McDaniel murder.
Smith's Testimony
Smith pleaded guilty to possession of the gun, which he said he had obtained on the streets of Oakland. Smith testified that after his arrest he was in jail with Hoskins, who told him the gun Smith had been caught with was used in the homicide in Sobrante Park. Smith admitted that gun belonged to Edwards and that Edwards called it "Jodie." Hoskins told Smith he shot McDaniel a couple of times in front of McDaniel's house, including in the head, and that he did it for Edwards. He said it had something to do with tax returns. When McDaniel said he'd be back, they killed him. Smith was in jail on February 4, 2012, and was not involved in the McDaniel shooting.
Quevido's Testimony
Ramon Quevido testified that Hoskins robbed him near the Cooper Church on Fruitvale on November 19, 2011. Hoskins approached him on a sidewalk, put what looked like a dark silver .45-caliber semi-automatic gun to his chest, demanded Quevido's diamond-studded gold chain, pulled it off Quevido's neck and ran away. Quevido later identified Hoskins in a photographic lineup and identified him in the courtroom at trial.
Defendants presented no affirmative evidence in their defense. They filed timely notices of appeal.
DISCUSSION
I.
Defendants' Batson-Wheeler Challenge Lacks Merit.
Both defendants are African-American (as were the victim and many of the witnesses at trial). During jury selection, defendants brought a motion under People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, 173, and Batson v. Kentucky (1986) 476 U.S. 79 (Batson), arguing the district attorney had excused the only two prospective African-American jurors in the jury pool because of their race, with the result that there were no African-American jurors on the jury. Defendants contend the trial court erred in denying the motion. We conclude the trial court did not err.
A. Legal Standards
As discussed in People v. Gutierrez (2017) 2 Cal.5th 1150 (Gutierrez): "At issue in a Batson-Wheeler motion is whether any specific prospective juror is challenged on account of bias against an identifiable group distinguished on racial, religious, ethnic or similar grounds. [Citation.] . . . [¶] When a party raises a claim that an opponent has improperly discriminated in the exercise of peremptory challenges, the court and counsel must follow a three-step process. First, the Batson-Wheeler movant must demonstrate a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. The moving party satisfies this first step by producing ' "evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." ' [Citations.]
"Second, if the court finds the movant meets the threshold for demonstrating a prima facie case, the burden shifts to the opponent of the motion to give an adequate nondiscriminatory explanation for the challenges. To meet the second step's requirement, the opponent of the motion must provide 'a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges.' [Citation.] In evaluating a trial court's finding that a party has offered a neutral basis—one not based on race, ethnicity, or similar grounds—for subjecting prospective jurors to peremptory challenge, we are mindful that ' "[u]nless a discriminatory intent is inherent in the prosecutor's explanation," ' the reason will be deemed neutral. [Citation.]
"Third, if the opponent indeed tenders a neutral explanation, the trial court must decide whether the movant has proven purposeful discrimination. [Citation.] In order to prevail, the movant must show it was ' "more likely than not that the challenge was improperly motivated." ' [Citation.] This portion of the Batson-Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] At this third step, the credibility of the explanation becomes pertinent. To assess credibility, the court may consider, ' "among other factors, the prosecutor's demeanor; . . . how reasonable, or how improbable, the explanations are; and . . . whether the proffered rationale has some basis in accepted trial strategy." ' [Citations.] To satisfy herself that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, her knowledge of trial techniques, and her observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. [Citation.]
"We review a trial court's determination regarding the sufficiency of tendered justifications with ' "great restraint." ' [Citation.] We presume an advocate's use of peremptory challenges occurs in a constitutional manner. [Citation.] When a reviewing court addresses the trial court's ruling on a Batson-Wheeler motion, it ordinarily reviews the issue for substantial evidence. [Citation.] A trial court's conclusions are entitled to deference only when the court made a ' sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.' [Citation.] What courts should not do is substitute their own reasoning for the rationale given by the prosecutor, even if they can imagine a valid reason that would not be shown to be pretextual. '[A] prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives. . . . If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.' " (Gutierrez, supra, 2 Cal.5th at p. 1158-1159.)
B. The Proceedings Below
The only two African-American prospective jurors in the pool from which defendants' jury was selected were Mitchell and Wayfer. There was initially a third African-American in the pool, but the court excused her because she absented herself from some of the jury selection proceedings.
We refer to stricken jurors by their last names in the interest of their privacy.
In questioning Mitchell on voir dire, the district attorney began with Mitchell's questionnaire responses, noting, "[y]ou have some concerns about the criminal justice system; is that fair?" Mitchell acknowledged her response, and the district attorney then asked whether, given that there were "two individuals here who are both African-American" that concern about the unfairness of the system to minorities was "weighing on your mind at all?" She said it was not. He then asked her to elaborate on her statement about "the system needing an overhaul about minorities." She responded, "I believe that minorities, and especially African-Americans are arrested more than other people. I believe it's imbalanced." Asked whether she had any feeling whether the defendants in this case had been "wronged in some way by the system," she said "I would have no idea. No, it wouldn't effect [sic] me." Asked whether anything about "what we're doing here, you know, a criminal trial" was "of concern" to her, she responded "[n]o."
The record does not contain the questionnaire responses for jurors who were not seated, and we therefore do not have Mitchell's or Wayfer's questionnaires.
Although the district attorney did not exercise any of his next eight peremptory challenges to strike Mitchell, eventually he exercised one to strike her.
In voir dire, the district attorney asked Wayfer about his questionnaire, observing, "[y]ou did have concerns about whether the defendants would testify or not, and I believe your words were, 'the truth will set you free' or something along those lines?" Wayfer acknowledged the statement and the district attorney then asked whether, having heard the attorneys and other prospective jurors discuss that subject, his opinion had changed about whether the defendants should testify. Wayfer indicated it had "[m]aybe a little bit," and explained "[i]t's a difficult situation to be in to, be on trial and to have to face a jury of your peers who come from different walks of life, who they don't know nothing about your neighborhood, your background, and be put in that situation; can be scary." He affirmed that he could follow the law and not hold it against the defendants if they did not testify, but then qualified that response, stating, "I mean it's situational. I think really what it comes down to, if you don't testify and the evidence goes a certain way, maybe it can hurt you, at least for me, if you don't. Where I come from, if you are accused of something, we usually say something to you or whoever it is and you should talk."
The district attorney then turned to a comment in Wayfer's questionnaire about the prison system. "You talked about how it's big business. It doesn't address the real issues, disparity from the issue and poor [sic]. And, obviously, this is a murder case, and even though you are not going to be involved in the punishment, you know that there's a possibility of a guilty verdict that these individuals could be sent to prison. [¶] Knowing that, and knowing what you say here in the questionnaire about your thoughts of the system, how does that effect [sic] your ability to render a verdict one way or the other?" Wayfer said he wasn't "sure of the answer," and went on to say the system was "like prescription medicine. It's not always designed to cure. Sometimes it hides the symptoms, and that's probably one of my biggest issues with the system as it is now, that you can send someone to jail and it makes the symptoms worse." When asked whether knowing the defendants could be facing prison would it make him less likely to return a verdict of guilty, he said "[i]t's possible."
The district attorney then described a questionnaire response indicating some law enforcement officials were good and some bad, noting Wayfer had "mentioned Oakland specifically," and asked whether anything about his interaction with OPD would make him "feel one way or another, if an OPD officer comes in here?" Wayfer said "[t]hey're fine, just like everybody else is. I've had good experiences and bad experiences with police, so . . . ." The district attorney asked whether Wayfer was "feeling a little bit more reluctant to be on my side if I prove my case?" Wayfer responded "[i]t's hard to say. I don't really know. It's situational. I have cousins who have been in jail. I know people who have been killed."
The district attorney used his next challenge to strike Wayfer. After he struck Wayfer, Edwards's counsel indicated she wanted to say something on the record, which the court allowed after the jury and alternates were selected and sworn and the pool was dismissed.
The court quickly ruled that the defense did not make a prima facie case of discriminatory intent regarding Wayfer, citing Wayfer's "statements that he had relatives that were in prison, knew other people who had been murdered. And so I didn't see any reason to believe that the challenge against him was racially motivated." Although not required, the district attorney stated for the record of his reasons for striking Wayfer.
These included, along with the court's stated reasons, Wayfer's "clearly negative opinion" about Oakland police, which was "problematic" because officers would be testifying in the case, Wayfer's concerns about the prison system and his "already feeling as though he is leaning toward the defense, and it might impact his ability to deliberate fairly and give the People a fair trial."
The court found the defense had established a "light" prima facie case regarding Mitchell, shifting the burden to the district attorney. The district attorney said he excused Mitchell because she stated in her questionnaire that "she hopes the system is fair, but it does need some overhaul when it comes to minorities being arrested and jailed more than non-minorities, especially in reference to drugs. . . . [¶] I did question her about it during the voir dire process, and she did state that it was more of a general concern. However, given the fact that she thinks that the system needs to be overhauled, and—because of minorities, it gave me concern that she is not willing to follow the law as instructed by the Court, and so I exercised a peremptory challenge for her."
Defense counsel responded that Mitchell's comments "were specifically addressed to drug issues and minorities being arrested for drug issues. This is not a drug case, . . . [¶] No one asked her whether she thought that—whether or not murder was in that same category, whether minorities are arrested more, disproportionately, for serious and violent crimes involving murder and weapons, and that sort of thing. I think the district attorney didn't go into it. It shows it was just a presumption on his part that she was going to be unfair because she was—listed herself as black."
The court then denied defendant's motion concluding "that neither challenge was racially based or because of a racial bias." It found that Mitchell's statement about drug offenses "can evidence the fact that she is somewhat not law-enforcement oriented, and if the district attorney finds that to be a reason, that's not a racially biased reason. So the motion under People vs. Wheeler is denied."
C. Analysis
Defendants contend the trial court erred when it ruled that the defense had failed to establish a prima facie case of discrimination as to Wayfer. They argue the defense produced "statistical evidence sufficient to permit the trial court to draw an inference that discrimination had occurred," namely that the district attorney excused the only two African-American prospective jurors who "came close to being seated on the jury in this case." The People contend defendants failed to establish a prima facie case, arguing the challenge of two or three black jurors, by itself, is insufficient.
Defendants also take issue with the district attorney's stated reasons for excusing Wayfer and Mitchell, claiming they "do not hold up under scrutiny," and defendants point out other answers to various questions given by Wayfer and Mitchell suggesting these jurors could be fair. The People counter by observing the standard of review of whether there is purposeful discrimination is substantial evidence, and that where the issue is whether the reasons proffered were genuine, we defer to the trial court's credibility determinations.
We need not resolve whether the challenge of the only two black jurors may be sufficient in some circumstances to establish a prima facie case. Assuming it may suffice in some circumstances, here the totality of circumstances did not support a finding that the strike of Wayfer was discriminatory. (See People v. Scott (2015) 61 Cal.4th 363, 385 (Scott) ["the high court has directed us to consider the totality of the relevant facts in determining whether an inference of discrimination exists"].) As to Mitchell, we assume (as the trial court apparently did) that the strike exercised to remove Mitchell, as one of only two African-American jurors, was sufficient to establish a prima facie case as to her, but conclude the trial court did not err in deciding that the district attorney's legitimate nondiscriminatory reasons overcame that showing.
We now turn to the trial court's finding there was no prima facie case of discrimination in the district attorney's strike of Wayfer. The trial court relied on its own recollection, which was not entirely accurate, that Wayfer had said "he had relatives that were in prison, knew other people who had been murdered." As defendants point out, Wayfer referred to cousins having been in jail, not in prison. However, this is not a significant difference given the entirety of Wayfer's responses on voir dire. The district attorney asked Wayfer whether he was "feeling a little bit more reluctant to be on my side if I prove my case?" and Wayfer responded, "It's hard to say. I don't really know. It's situational. I have cousins who have been in jail. I know people who have been killed." His response was at best equivocal as to whether he would hesitate to vote for a guilty verdict if the district attorney proved his case. Further, in follow up to an earlier question regarding Wayfer's questionnaire response indicating he thought prison did not cure the underlying cause of criminal behavior and sometimes made it worse, the district attorney asked Wayfer whether, knowing defendants could be facing prison, he would be less likely to return a verdict of guilty. Wayfer's response—"[i]t's possible"—also suggested he might be reluctant to vote to convict the defendants.
Under the totality of the circumstances, which we consider in reviewing a determination at the first-step ruling that a prima facie case has not been established (see Scott, supra, 61 Cal.4th at pp. 385, 390), we conclude there was no error in the trial court's conclusion that as to Wayfer the defendants could not establish a prima facie case. Defendants argue "the prosecutor's stated reasons for excusing Wayfer do not hold up under scrutiny," but do not contend they are facially discriminatory. And wisely so. Nothing about the district attorney's stated reasons, which we have described above, is facially discriminatory. This, then, ends our inquiry as to prospective juror Wayfer. (See Scott, at p. 391 ["If the appellate court agrees with the trial court's first-stage ruling, the claim is resolved"])
As to Mitchell, the trial court concluded there was a prima facie case, albeit one that was "light." Defendants challenge the district attorney's proffered reasons for excusing Mitchell as pretextual. As to Mitchell, therefore, we must address the second and third steps of the Batson-Wheeler framework.
The district attorney meets the second step if he "provide[s] 'a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenges.' [Citation.] In evaluating a trial court's finding that a party has offered a neutral basis—one not based on race, ethnicity, or similar grounds—for subjecting prospective jurors to peremptory challenge, we are mindful that ' "[u]nless a discriminatory intent is inherent in the prosecutor's explanation," ' the reason will be deemed neutral." (Gutierrez, supra, 2 Cal.5th at p. 1158.)
The district attorney stated he excused Mitchell because in her questionnaire, she said she hoped the justice system was fair, but that it needed some overhaul when it came to minorities, especially regarding drugs. Acknowledging that, when questioned, Mitchell said this was more of a "general concern," the district attorney said her questionnaire response "gave me concern that she is not willing to follow the law as instructed by the Court." Defendants argue the trial court erred in accepting this reason for excusing Mitchell as "race-neutral and bona fide."
Defendants contend the district attorney failed to inquire of Mitchell whether her concerns about how minorities are treated regarding drug crimes also applied to minorities arrested for violent crimes. They also contend he "made no effort . . . to inquire as to whether other jurors held similar views about the disproportionate number of minorities arrested and charged for drug crimes," and his " 'disparate questioning' on this topic was evidence of purposeful discrimination." They point to another juror whom the district attorney "failed to question . . . about her comment in her questionnaire that the criminal justice system 'works most of the time but definitely makes mistakes too.' " And they argue the district attorney's stated concern that Mitchell was not willing to follow the law as instructed by the court is belied by the fact that Mitchell said she had no idea whether the defendants in this case had been " 'wronged in some way by the system,' " and that in any event it would not affect her.
In making these arguments, defendants conflate the second step of Batson-Wheeler analysis with the third. They are not the same. As we have indicated, the question at the second step is whether the prosecutor provided " 'a "clear and reasonably specific" explanation of his "legitimate reasons" for exercising the challenge[]' " and the reason is race-neutral. (Gutierrez, supra, 2 Cal.5th at p. 1158.) The district attorney's reason was clear and specific; he explained that Mitchell's concern about minorities not being fairly treated by the justice system, even if directed to the issue of drug arrests, led him to worry she would not be willing to apply the law as instructed to defendants, who in this case were minorities.
Defendants are right in pointing out that the district attorney did not question Mitchell very thoroughly, such as by asking whether that concern would affect her ability to be fair in this murder case, and it is far from self-evident that anyone who believes racial minorities are disproportionately arrested and prosecuted will be unwilling to fairly apply the law in a criminal case against defendants who are racial minorities. But on the second step of Batson-Wheeler, the question is not whether the reason given is logical or reasonable. It is whether it is specific enough to be comprehensible and is facially race-neutral. There is nothing inherently discriminatory about the district attorney's reason for striking Mitchell. The beliefs she expressed, while perhaps more likely to be held by minorities, may be held by individuals of any race or ethnicity.
It is at the third step of Batson-Wheeler where defendants' arguments about the district attorney's questioning of Mitchell and of other jurors become relevant. Here, the trial court was required to "decide whether the movant has proven purposeful discrimination," assessing the credibility of the district attorney's explanation. (Gutierrez, supra, 2 Cal.5th at p. 1158.)
The district attorney's explanation for striking Mitchell is not compelling. The fact that a prospective juror holds the view that racial minorities are disproportionately targeted for arrest by law enforcement does not demonstrate the juror will not apply the law faithfully. Nonetheless, we cannot say the district attorney's stated reason for excusing Mitchell was so " 'implausible or fantastic' " as to support an inference that it was pretextual. (See Gutierrez, supra, 2 Cal.5th at p. 1159.) A prosecutor's justification " ' "need not support a challenge for cause," ' " and may even be " ' " 'trivial' " ' " or based on " ' "facial expressions, gestures, [or] hunches," ' " so long as it is " ' "genuine and neutral." ' " (People v. O'Malley (2016) 62 Cal.4th 944, 975.) "[T]he law recognizes that a peremptory challenge may be predicated on a broad spectrum of evidence suggestive of juror partiality. The evidence may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative." (Wheeler, supra, 22 Cal.3d at p. 275.)
Moreover, there were other circumstances supporting the trial court's finding that the district attorney's proffered reason was not simply a pretext for discrimination. First, the district attorney did not immediately excuse Mitchell, but rather excused several other individuals before eventually using a peremptory challenge to excuse her. This tends to indicate his concern about her was modest, which, given the attenuated reasoning behind it, makes sense. Further, contrary to defendants' contention that there was "disparate questioning" of other jurors, the record reflects that the district attorney followed up with many of the other prospective jurors, none of whom were African-American, about qualms they had expressed regarding law enforcement and the justice system and that he excused at least one of them, possibly for similar reasons. For example, one juror expressed concern that the justice system makes mistakes. The district attorney asked about that, the juror mentioned the Scott Peterson and Trayvon Martin cases as ones he or she followed in the news, and the district attorney later exercised a peremptory to excuse that individual. He asked another about her statement that law enforcement personnel are fine unless they abuse their authority. The record, which reflects that jurors continued to change seats to fill in those vacated by excused jurors, does not clearly indicate whether he excused that juror. The district attorney asked a third juror about his or her concern that there may be a few law enforcement officials who "do not work for fair justice." Again, the record is unclear whether he exercised a peremptory challenge to remove that juror. He followed up with another juror who commented about the work ethic of police officers. He asked another about a comment that "in some respects, the system is not perfect," and another about the comment that most but not all police are honest and fair. In short, the district attorney focused a good deal of time eliciting comments from prospective jurors about their views on law enforcement and the justice system. Although the record is not entirely clear about which jurors were excused, the district attorney's questions were designed to ferret out beliefs that indicated skepticism of law enforcement and the justice system. The district attorney's questioning of other jurors about these subjects and exercises of peremptory challenges at least to one of them and possibly others provide substantial evidence supporting the trial court's conclusion that the reasons he gave for excusing Mitchell were genuine.
It was defendants' burden to ensure an adequate record was kept of the proceedings to allow us to consider issues they raise on appeal. (People v. Neilson (2007) 154 Cal.App.4th 1529, 1534.)
For these reasons, defendants' Batson-Wheeler claim lacks merit.
II.
Defendant Hoskins's Argument That the Evidence Was Legally Insufficient
Because Collier Was an Accomplice Whose Testimony
Was Not Properly Corroborated Lacks Merit .
In a single sentence at the end of his opening brief, Edwards purports to join in all of Hoskins' arguments that "may accrue to [Edwards's] benefit." However, his briefs contain no discussion about how any of these arguments apply to his particular circumstances. While joinder in the arguments of a co-appellant is "broadly permitted (Cal. Rules of Court, rule 8.200(a)(5)), each appellant . . . has the burden of demonstrating error and prejudice." (People v. Nero (2010) 181 Cal.App.4th 504, 510, fn. 11.) Edwards's "cursory joinder," which relies solely on Hoskins's arguments and reasoning, does not satisfy his burden on appeal and he has waived these issues. (Ibid.) We therefore consider the issues raised in Hoskins's briefs only as they pertain to Hoskins.
Defendant Hoskins argues that he was "convicted on the basis of Collier's testimony" and "the testimony of two in-custody informants, Terrance White and Sedra Smith," that Collier "was an accomplice to the murder and whose testimony required corroboration," that the in-custody informants' testimony also required corroboration, and, referring to all three as "accomplices," argues "the evidence purporting to corroborate the accomplice's testimony is insufficient to connect Hoskins to the commission of the crimes." He contends, without citation to or discussion of relevant authority, that this rises to the level of a constitutional violation.
Hoskins did not seek either of the standard CALCRIM instructions (CALCRIM Nos. 334 and 335) or any other instruction on accomplice testimony. Had he proffered such an instruction and had the trial court agreed it was appropriate, the jury would have been instructed either that Collier was an accomplice as a matter of law, or that it should decide whether she was an accomplice, that an accomplice's testimony may not alone be the basis for a conviction but must be supported by corroborating evidence and that an accomplice's statement that tends to incriminate the defendant should be viewed with caution. (§ 1111; see CALCRIM Nos. 334, 335.) Because the jury was not so instructed, it was not called upon to decide whether Collier was an accomplice and was not required to find corroborating evidence or view her testimony with caution.
Hoskins did seek, and the trial court gave, CALCRIM No. 336 pertaining to in-custody informants. The jury was instructed that Terrance White and Sedra Smith were in-custody informants; their statements and testimony should be viewed "with caution and close scrutiny"; the jury should consider whether their testimony was influenced by receipt or expectation of any benefits; it could not convict the defendants based on their testimony alone; and it could use their statements or testimony only if it was supported by other evidence the jury believed that was independent of the statements or testimony and connected defendants to the commission of the crimes. The court also instructed the jury not to use the testimony or statement of one in-custody informant to support the statement or testimony of another in-custody informant unless the People proved the informants had not communicated with another in-custody informant about the testimony. (See § 1111.5.)
Hoskins's failure to request the accomplice testimony instruction would not result in a forfeiture of a claim of instructional error because our Supreme Court has held that " '[w]hen there is sufficient evidence that a witness is an accomplice, the trial court is required on its own motion to instruct the jury on the principles governing the law of accomplices,' including the need for corroboration." (People v. Tobias (2001) 25 Cal.4th 327, 331.) However, Hoskins does not claim instructional error, but makes a substantial evidence argument that incorporates the legal principles governing accomplices and informants. The problem with the argument is that a challenge to sufficiency of the evidence is a claim of jury error, and accordingly, we measure the evidence adduced at trial against the law as the jury was instructed to apply it. (Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1534.) Defendants effectively concede that there was no error in the instructions, yet ask us to measure the evidence based on rules of law "located in law books: in codes, reports of appellate cases, etc." rather than according to the instructions the jury was given. (Ibid.)
One could view defendants' failure to claim instructional error as a concession that the evidence did not support a finding that Collier was an accomplice, the accomplice rule therefore did not apply and her testimony therefore could support the verdict of guilt without corroborating evidence. However, the People have not argued waiver, and we will address whether there was sufficient evidence to support Hoskins's conviction as a matter of law, considering the accomplice testimony rules. The rules, embodied in section 1111, are these: "A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given." These rules reflect an extrinsic policy that in effect renders insufficient as a matter of law evidence that would otherwise suffice to support a verdict of guilt. Its importance is underscored by the Supreme Court's holding requiring trial courts to give an accomplice instruction sua sponte if the evidence supports it. (See People v. Najera (2008) 43 Cal.4th 1132, 1137 ["The corroboration requirement for accomplices thus qualifies as a general principle of law vital to the jury's consideration of the evidence, and the jury must be so instructed even in the absence of a request"]; People v. Cuevas (1995) 12 Cal.4th 252, 261 [Legislature has determined that because of reliability questions posed by accomplice statements such a statement by itself is insufficient as a matter of law to support a conviction].)
Hoskins argues the evidence demonstrated Collier was an accomplice, that accomplice testimony must be corroborated by evidence connecting the defendant to the crime, that her testimony, together with that of in-custody informants White and Smith, could not support the verdict absent independent corroboration connecting Hoskins to the crime and that there was no such corroborating evidence. Hoskins implicitly and in his reply brief explicitly contends that the testimony of an accomplice cannot serve as corroboration for the testimony of in-custody informants and the testimony of in-custody informants cannot serve as corroboration for that of an accomplice. Thus, he argues, there must be evidence independent of the testimony of Collier, White and Smith that corroborates all their statements and testimony and connects Hoskins with the murder. Finally, Hoskins argues there was no such evidence.
The People argue the evidence did not show Collier was an accomplice, even if she had been an accomplice her testimony was corroborated, among other evidence, by the statements of White and the testimony of Smith and while an accomplice cannot corroborate the testimony of another accomplice, the testimony of an accomplice may be corroborated by an in-custody informant. The People argue Collier's testimony was corroborated by White's statements and Smith's testimony and theirs were corroborated by hers. The People cite the decision authored by our colleague Justice Mark Simons in Division 5 of this court in People v. Huggins (2015) 235 Cal.App.4th 715 (Huggins).
We need not decide whether Collier was an accomplice because we agree with the holding in Huggins that the testimony of an accomplice may be corroborated by the testimony of in-custody informants and the testimony of in-custody informants may be corroborated by the testimony of an accomplice.
In Huggins, the defendant was charged with and convicted of two robberies and a murder committed during one of the robberies. His former girlfriend, who participated in the robberies and was an accomplice, testified against him as part of a plea agreement that reduced her sentence. (Huggins, supra, 235 Cal.App.4th at pp. 717-718.) Another witness who was an in-custody informant also testified about his conversation with defendant, who admitted the robberies and the killing. (Id. at p. 717.) The trial court declined to give defendant's requested instruction that an accomplice and an in-custody informant cannot corroborate each other's testimony. Our court rejected defendant's claim this was error.
As Justice Simons pointed out, section 1111, which governs accomplice testimony, does not by its terms address who may corroborate an accomplice's testimony but has been held to require corroboration by evidence other than the testimony of another accomplice. (Huggins, supra, 235 Cal.App.4th at p. 718, citing People v. Rodrigues (1994) 8 Cal.4th 1060, 1132.) By contrast, section 1111.5, which governs in-custody informant testimony, specifies that "[c]orroboration of an in-custody informant shall not be provided by the testimony of another in-custody informant unless the party calling the in-custody informant as a witness establishes by a preponderance of the evidence that the in-custody informant has not communicated with another in-custody informant on the subject of the testimony." It defines "in-custody informant" to exclude an accomplice. (§ 1111.5, subds. (a), (b), italics added.) "[T]he plain language of the statutes does not prohibit an in-custody informant and an accomplice from corroborating each other's testimony." (Huggins, at p. 719.) "[W]hile section 1111 is silent with respect to any limits on permissible corroborating witnesses, section 1111.5 precisely defines those witnesses who may not corroborate an in-custody informant's testimony." (Ibid.)
Further, prior to adoption of section 1111.5, our Supreme Court "approved the use of testimony by an in-custody informant to corroborate the testimony of an accomplice" in People v. Williams (1997) 16 Cal.4th 153, 201, and section 1111.5 "explicitly provides that its terms do not 'limit[], or change[]' the accomplice testimony corroboration requirements." (Huggins, supra, 235 Cal.App.4th at p. 719.) "That the Legislature prohibited corroboration by another in-custody informant except under certain circumstances, but declined to prohibit corroboration by an accomplice, strongly suggests the Legislature did not intend to prohibit the latter." (Id. at p. 719.)
Hoskins contends Huggins was "wrongly decided and should not be followed." Hoskins engages in lengthy argument about how section 1111.5 should be interpreted, contending the concluding sentence in the statute "undermines the reasoning of Huggins." That sentence—"Nothing in this section limits or changes the requirements for corroboration of accomplice testimony pursuant to Section 1111"—in Hoskins's view means the rule that an accomplice's testimony cannot be used to corroborate another accomplice's testimony is incorporated into section 1111.5, precluding use of accomplice testimony to corroborate the testimony of an in-custody informant. We are not persuaded.
The language Hoskins cites does not state the limitation on corroboration of accomplice testimony is incorporated into the in-custody informant rule, or that the limitation on corroboration for in-custody informants creates a further limitation on corroboration of accomplice testimony. If the new rule for informants was intended to change and further limit the types of evidence that could be used to corroborate accomplice testimony, it would not have included the language Hoskins relies on, which says precisely the opposite.
Because we agree with Huggins, the testimony of Collier, which directly tied Hoskins to the murder, could and did provide corroboration for the statements of White (to which Nguyen testified) that Hoskins admitted participating in the murder of McDaniel and wrote a rap song about it indicating he "domed" McDaniel, and for the testimony of Smith that Hoskins admitted he shot McDaniel in the head. Likewise, Smith's testimony and White's statements, which also directly tied Hoskins to the murder of McDaniel, could and did corroborate Collier's testimony. Thus, even if Collier were an accomplice, which again we do not decide, her testimony was properly corroborated by White's and Smith's testimony.
Finally, contrary to Hoskins's contention, there was independent corroborating evidence for both Collier's testimony and the statements and testimony of the two informants. Eyewitness Willard-Wright tentatively identified Hoskins as the shooter, although she testified Edwards was the shooter at trial, and Navarro testified one of the shooters wore dreadlocks, a hairstyle Hoskins was known to have worn. The ballistics evidence indicated one of the two murder weapons was a .45-caliber gun and that gun fired the bullet found in McDaniel's head. Quevido testified that in November 2011, approximately three months before the McDaniel murder, a man he later identified as Hoskins approached him on the sidewalk, put a .45-caliber semi-automatic gun to his chest and demanded his necklace. This evidence tied Hoskins to the crime in such a way as to satisfy a reasonable trier of fact that Collier, Smith and White (in his statement but not his testimony) had told the truth.
"Corroborative evidence sufficient to satisfy section 1111 need not corroborate every fact to which the accomplice testified or establish the corpus delicti, but is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy a fact finder the accomplice is telling the truth. [Citation.] 'Corroborative evidence may be slight and entitled to little consideration when standing alone.' " (People v. Williams, supra, 16 Cal.4th at p. 246.)
For these reasons, we reject Hoskins's claims that the evidence was insufficient to sustain his conviction because it was not adequately corroborated, including the constitutional claims he bases on this asserted deficiency.
III.
Hoskins Has Failed to Show Prejudicial Error in the Admission of
Uncharged Crimes Evidence.
Hoskins next challenges the court's admission of a "[a] mass [sic] amount of extremely prejudicial evidence . . . consisting of other crimes committed by Hoskins and/or Edwards," only some of which was admitted over objection. He contends the trial court abused its discretion under Evidence Code sections 1101 and 352 in admitting the evidence. He further argues the admission of all this evidence violated his right to due process under the Fourteenth Amendment. We first set out the governing legal principles and then address the evidence by category.
In his opening brief, Hoskins refers to each of his challenged categories of evidence, but analyzes them all together. He tardily presents arguments about these separate categories for the first time in his reply brief, which we may ignore. (Reichhardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) We exercise our discretion to consider them.
A. Governing Legal Principles
Evidence Code section 1101, subdivision (a) states the general rule that, with certain exceptions not relevant here, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." Subdivision (b) makes plain that prior conduct evidence (evidence that a person committed a crime, civil wrong, or other act) is not prohibited when offered to prove "some fact . . . other than his disposition to commit such an act," such as "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." We review the trial court's ruling under Evidence Code section 1101 for abuse of discretion. (People v. Cage (2015) 62 Cal.4th 256, 274.)
Evidence Code section 352 gives trial courts the discretion to exclude evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." "To preserve a claim that a trial court abused its discretion in not excluding evidence under Evidence Code section 352, 'a party must make a timely and specific objection when the evidence is offered.' " (People v. Harrison (2005) 35 Cal.4th 208, 230.)
" 'Evidence is substantially more prejudicial than probative . . . [citation] [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" [citation.]' " (People v. Eubanks (2011) 53 Cal.4th 110, 144.) " '[P]rejudice' does not mean damage to a party's case that flows from relevant, probative evidence. Rather, it means the tendency of evidence to evoke an emotional bias against a party because of extraneous factors unrelated to the issues. [Citation.] Thus, evidence is subject to exclusion under Evidence Code section 352 based on prejudice only ' "when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction. In such a circumstance, the evidence is unduly prejudicial because of the substantial likelihood the jury will use it for an illegitimate purpose." ' " (People v. Cortez (2016) 63 Cal.4th 101, 128-129 (Cortez).) "The potential for such prejudice is 'decreased' when testimony describing the defendant's uncharged acts is 'no stronger and no more inflammatory than the testimony concerning the charged offenses.' " (Eubanks, at p. 144.)
"A trial court's exercise of discretion under [Evidence Code] section 352 will be upheld on appeal unless the court abused its discretion, that is, unless it exercised its discretion in an arbitrary, capricious, or patently absurd manner." (People v. Thomas (2012) 53 Cal.4th 771, 806.) Even if error is found in admission of other crimes evidence, reversal is appropriate only if the error is prejudicial under People v. Watson (1956) 46 Cal.2d 818, 836, that is, if "the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Id.; see People v. Foster (2010) 50 Cal.4th 1301, 1333 [applying Watson prejudice standard to claim that trial court erroneously admitted other crimes evidence].) Finally, "the admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439.)
B. Analysis
1. Quevido Testimony
Quevido testified that Hoskins robbed him on November 11, 2011, while he was standing outside a church on Oakland's Fruitvale Avenue talking to two other men. Hoskins passed him twice, coming and going, and then approached him a third time and put a gun to Quevido's chest. Hoskins said he wanted the chain Quevido was wearing, which was gold with diamonds, and pulled it off Quevido. Quevido recognized that the gun Hoskins used was a dark silver semi-automatic that looked like a .45. He testified he previously had guns, can describe different kinds of guns and knew the gun was a .45 by its size. Quevido identified Hoskins at trial, and had identified him in photographs shown to him earlier by police. Defense counsel did not object to this testimony. Hoskins argues the trial court erred by admitting Quevido's testimony in violation of Evidence Code sections 1101 and 352 and his due process rights under the United States Constitution.
He argues the Quevido robbery "demonstrates no more than Hoskins may have used a .45-caliber weapon to rob Quevido" and the People "never connected the alleged .45 used in the Quevido robbery to [the McDaniel] homicide," noting that the .45-caliber weapon used in the homicide was never recovered. He contends that even if the robbery showed Hoskins used a .45 to rob Quevido, so much time passed between that robbery and the killing of McDaniel that "it proves nothing." Finally, Hoskins argues that even if the robbery evidence had some minimal amount of relevancy, its probative value was clearly outweighed by its prejudicial effect to Hoskins.
Even if we overlook that Hoskins did not object to Quevido's testimony below, he has failed to show error. Hoskins's defense was, at base, to deny he committed the crime. Although the prosecution presented evidence tying Edwards's .40-caliber gun, "Jodie," to the killing, the second gun used, a .45-caliber semi-automatic, was never found. Hoskins's defense counsel challenged the motives, and argued the inconsistencies and inaccuracies, of the witnesses whose statements and testimony implicated Hoskins; claimed the police work, including photograph identifications, was sloppy and suggestive; and contended the only thing that connected Hoskins to the murder was that he knew Edwards. The Quevido robbery, which placed a .45-caliber semi-automatic gun in Hoskins's hand on November 11, 2011, three months before the murder, while not sufficient by itself to prove he was one of McDaniel's killers, supported the other evidence tying him to that murder. The prior robbery evidence was offered to prove Hoskins's identity as the second perpetrator of the McDaniel murder. As such it was admissible under Evidence Code section 1101, subdivision (b).
The People point out the failure to object below but do not argue Hoskins forfeited the issue, instead addressing it on the merits.
The People appropriately rely on People v. Carpenter (1999) 21 Cal.4th 1016 (Carpenter), in which our Supreme Court rejected the claim that the trial court erred in admitting witness testimony that within one to four months of the murders defendant carried a gun in his van and showed one witness a gun that " 'looks like' " the murder weapon. In so holding, it stated, "Although the witnesses did not establish the gun necessarily was the murder weapon, it might have been. . . . [T]his evidence did not merely show that defendant was a person who possesses guns, but showed he possessed a gun that might have been the murder weapon after the first and before the last of the killings. The evidence was thus relevant and admissible as circumstantial evidence that he committed the charged offenses." (Id. at pp. 1029-1030, 1052.)
Hoskins attempts to distinguish Carpenter, arguing the ballistics evidence in that case provided greater precision about the murder weapon, identifying it by brand as well as caliber. We are not persuaded. Although the ballistics evidence in Carpenter was more precise about the type of weapon (see Carpenter, supra, 21 Cal.4th at p. 1030 [.38-caliber Rossi revolver]), the testimony was not: one witness testified only that defendant carried "a gun" in his van, and another said he showed her a gun that "looks like" the murder weapon. Here, Quevido testified in greater detail, describing the gun Hoskins used to rob him as a "semi-automatic" and stating its caliber as a .45, which according to the ballistics evidence was the type and caliber of the second gun used in McDaniel's murder. As in Carpenter, this was probative evidence, although not dispositive. Quevido's testimony was probative not only of the identity of Hoskins as one of McDaniel's murderers, but also tended to support the special allegation that Hoskins used a firearm during the murder and the charge that he was a felon unlawfully in possession of a firearm.
Moreover, the district attorney did not suggest the robbery showed Hoskins had a propensity to commit murder; rather, it argued the use of the gun in the robbery was relevant to his identity as the second murderer. In closing, he asked rhetorically, "[h]ow else do we know that Anthony Hoskins was one of the two murderers[?]" He answered by describing the ballistics evidence showing one of the murder weapons was a .45-caliber semi-automatic gun and describing Quevido's testimony about Hoskins "point[ing] a .45 caliber, semi-automatic weapon at his chest" while robbing him, and argued this showed "that Anthony Hoskins had a semi-automatic three months before the murder."
Finally, the court instructed the jury to consider the prosecution's uncharged offenses evidence only if the prosecution proved the offenses by a preponderance of the evidence, and only to decide whether a defendant possessed a specific firearm during the commission of the charged offenses. It also instructed the jury not to conclude from this evidence that a defendant had a bad character or was disposed to commit crime. We presume the jury followed this instruction and did not consider the robbery as evidence of propensity to commit crime. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
In short, we do not agree with Hoskins's argument that this evidence was not relevant. Nor do we agree that its probative value was greatly outweighed by its prejudice. Quevido's testimony that Hoskins put a gun to his chest and robbed him of a diamond-studded chain was considerably less inflammatory than the evidence of the murder, in which a dozen shots were fired, eight by one .45-caliber weapon, and four by "Jodie"; the victim was shot seven times and his body was riddled with holes and bullets (including two .40-caliber bullets found in his torso and one .45-caliber bullet in his head); police found him dead with blood coming from the rear of his pants, around his head and chest area, and pooling in his ear, and brain matter in his hair; Hoskins and Edwards bragged to Collier about the number of bullets required to fell McDaniel and how the "meat" flew off his body when they shot him; Hoskins told Collier he had "domed" McDaniel to be sure he was dead; and Hoskins bragged to White and Smith about having "domed" McDaniel or shot him in the head, and told White he wrote a rap song about doming the victim and the victim having "spilled his noodles." The evidence about the murder was far more inflammatory than Quevido's testimony about Hoskins's armed robbery.
2. White's Statements About Hoskins's Conduct
Hoskins next argues the trial court erred regarding various statements made by White. First, he claims error in the trial court's denial of his motion for a mistrial, which he made after Inspector Nguyen testified on cross-examination by Edwards's counsel that White told him Hoskins had broken out of jail to kill Edwards and the prosecution played for the jury a recorded statement in which White purportedly said the same thing. Hoskins also argues it was error to admit the video-recorded statement by White to police and the transcript of his statement (which was provided to jurors to aid in understanding the video but not admitted in evidence) without redaction to remove several statements he claims portrayed him in a bad light. Specifically, he complains about White's statements that Hoskins was "being charged with like seven robberies right now," that under the rules of the street "you don't hit old people and you don't hit babies," and that Hoskins "did" something to "Jermaine's sister," specifically "threatened the girl, threatened to do something to her brother, and he's trying to line Jermaine's mother up around her because he feels like she's holding onto Jermaine's money." Hoskins also contends it was error to admit "White's recorded statement to Nguyen where he talked about Hoskins escaping from jail to kill Edwards."
The transcript of White's interview does not reflect such a statement, and we have been unable to hear such a statement on the DVD.
We begin with the testimony about Hoskins's escape. First, there was no "recorded statement" by White to Nguyen to "redact." Neither White's recorded statement to Tran nor the transcript of that statement contain any reference to any escape. As to White's statement to Nguyen, an inspector who assisted the District Attorney's Office in preparing cases for trial, there was no recording at all. Nguyen, who accompanied the district attorney to participate in a conversation with White in the jail, testified about statements made by White during that conversation.
Second, the district attorney did not elicit from Nguyen any statement made by White about Hoskins having escaped from jail. Rather, Edwards's counsel asked Nguyen about White's statement to him and the district attorney that Hoskins broke out of jail to kill Edwards. Her purpose appears to have been an attempt to discredit White and possibly Nguyen. She implied the statement was false since, obviously, Edwards was still alive. Rather than object to this line of inquiry, Hoskins's counsel sought to impugn White by echoing another question asked by Edwards's counsel about White's having claimed Hoskins was sleeping with Collier. Hoskins's counsel elicited from Nguyen that there was nothing at all "in the case that seems to suggest that."
Subsequently, counsel for Hoskins moved for mistrial on, among other grounds, Nguyen's testimony and White's purportedly recorded statement about the alleged escape. Again, the only evidence we have found regarding White mentioning an escape was Nguyen's testimony during Edwards's counsel's cross-examination of him. Thus, the only issue is whether it was an error to deny Hoskins's mistrial motion based on Nguyen's testimony about escape.
There is also an isolated and passing reference by Collier to Hoskins having "broke[n] out of jail."
The district attorney opposed the motion because he did not elicit Nguyen's testimony about the alleged escape, Edwards's counsel did, and because Hoskins's counsel had not objected at the time. The court denied the motion because Hoskins had failed to object "either before or immediately after during the time where the Court could have given an admonition to the jury as to that." Hoskins fails to address the waiver resulting from his counsel's failure to timely object to this evidence under Evidence Code sections 1101 and 352. Thus, he has not met his burden as appellant of affirmatively showing the trial court erred by denying his mistrial motion on that ground. This is a sufficient reason for us to affirm the court's denial of the mistrial motion.
The same is true regarding White's statements about other robbery charges against Hoskins, his reference to hitting old people and babies, and a threat being made to "Jermaine's sister"; again, Hoskins's counsel failed to object to any of this evidence and thereby forfeited the issue. But even if he had not, his argument would fail because Hoskins overstates the import of this evidence. Tran and White's discussion about the rules of the street and not shooting old people and babies was not about Hoskins or any crime Hoskins allegedly committed. It arose in the context of White's reference to an incident in which his brother "got caught up in this dope game" and "got into it with some guys" who then "shot up my mom's house in West Oakland" and "jumped" White. His mom was an "old lady that lives by herself," and shooting up her house was one of those things "you don't do." Thereafter, White referred to a threat Hoskins made to "Jermaine's sister" because of something her brother or mother did, but he testified on cross-examination that incident "could have been verbal" and was not "something the police could have documented like somebody being shot or beat up." White's reference to Hoskins having been charged with robberies could have been excluded under Evidence Code section 1101, subdivision (a) had a proper objection been made. However, it was a fleeting reference during a lengthy interview. Even if Hoskins had objected to the admission of any of this evidence, we would conclude that, in the context of the brutal murder with which defendants were charged, its admission was not prejudicial. (See People v. Foster, supra, 50 Cal.4th at p. 1333.)
At the mistrial motion, Hoskins's counsel stated he thought he had objected to White's statement during the motions in limine. The record reflects no such objection. He objected to the recording of White's interview being played for the jury but stated no ground for the objection, which is tantamount to no objection at all. (See Evid. Code, § 353; People v. Zamudio (2008) 43 Cal.4th 327, 354.) Edwards's counsel objected that the White interview lacked foundation, but the court overruled that objection. Hoskins does not contend the trial court erred in overruling that objection.
3. Collier's Testimony About the Robberies
Hoskins contends Collier's testimony about armed robberies in which she participated with Hoskins and Edwards was erroneously admitted. This testimony was elicited not by the district attorney but by Edwards's counsel. It consists of Collier's testimony that Edwards supported her with money he obtained through drug deals and robberies; that she, Hoskins and Edwards had committed prior robberies together, in which she or Edwards drove the car and helped spot potential victims while Hoskins committed the robberies and used a gun in doing so; and that she heard but did not see Hoskins shoot someone during one of these robberies and did not know if anyone was killed.
Edwards's counsel had elicited similar testimony from Collier, except for the part about a shooting, during the preliminary hearing. During the colloquy about motions in limine on June 10, 2013, she informed counsel and the court she intended to pursue this line of questioning at trial. Hoskins's counsel did not object at that time. Nor did he seek to revisit the issue thereafter until June 25, 2013, in the middle of trial. After the trial was recessed for lunch that day and the jury had left, the district attorney informed the court he would call Collier that afternoon and "[b]ased on the representations by counsel, it's my expectation that defense is going to cross-examine her about her involvement in crimes . . . ." Hoskins's counsel did not raise the issue of Collier's potential testimony about robberies at that point or after the lunch break or during the district attorney's direct examination of Collier. He first did so later that afternoon, in the middle of Edwards's counsel's cross-examination of Collier, after she had testified that Edwards supported her with money from robberies and drug deals, that she participated in robberies with Edwards and Hoskins by driving or riding with them, and that Hoskins was the one who carried out the robberies. He did so only after the district attorney sought a sidebar. After that sidebar, which was not recorded, the court instructed the jury that Collier was receiving immunity.
At a subsequent colloquy outside the presence of the jury, Hoskins's counsel stated that at the previous sidebar he had "object[ed] to that whole line of cross-examination because it was one, time consuming; two, prejudicial." The court interpreted the objection as one under Evidence Code section 352 and stated, "I indicated at sidebar that I felt that the relevance in that this witness had participated in the action and the witness's credibility is on the line, that it was highly relevant, and I think that relevance outweighs the prejudice and time consuming nature." Hoskins's counsel stated his objection was section 352 and relevance.
Hoskins has failed to show error on the part of the court. By the time his counsel objected, Edwards's counsel had elicited from Collier her participation in prior robberies with Edwards and Hoskins in which Hoskins was the one who committed the robberies. At that point it was too late to prevent that testimony from coming in. The court could have stricken the testimony and instructed the jury not to consider it. However, we conclude its failure to do so was not an abuse of discretion. The trial court correctly concluded Collier's testimony about her role in defendants' other crimes was highly relevant to her credibility and, since she was the prosecution's key witness, its relevance outweighed its prejudice.
Again, we could hold that Hoskins forfeited the issue, but the People have addressed the merits of the issue and we exercise our discretion to do the same.
Between the sidebar and the later discussion outside the presence of the jury, Collier had further testified that Hoskins used a gun in robbing people and shot at someone during a robbery, though she did not know if he killed anyone. Again, by the time his counsel raised the testimony about a shooting having occurred, that testimony had already been elicited by his co-defense counsel. The only thing the court could have done at that point was to strike the testimony and issue a curative instruction, but counsel did not request that relief. Hoskins's counsel contended Collier's credibility has nothing to do with Hoskins's shooting a gun "in something unrelated to this event." The court reminded counsel that it had been unaware that Collier would testify Hoskins shot at someone during a robbery. After the district attorney stated he had emailed both counsel the night before to tell them he had just learned of that shooting from Collier, Hoskins's counsel admitted receiving the email. Nonetheless, he implied he had been surprised, pointing out he had not received police reports or any other evidence suggesting a shooting had occurred.
Even if it was an abuse of discretion for the court not to strike this testimony or, more accurately, even if it would have been an abuse of discretion had Hoskins's counsel requested it be stricken, we would conclude the error was harmless under the Chapman harmless-beyond-a-reasonable-doubt standard, which we employ because Hoskins has raised a federal due process claim. (Chapman v. California (1967) 386 U.S. 18, 24.) The evidence of Hoskins's participation in the murder was strong, consisting of his admissions to three different people that he shot McDaniel in the head and the evidence corroborating these admissions. He told Collier he "domed" McDaniel to "make sure that he was gone." It is evident that the jury believed Collier, because it found defendants shot McDaniel but did not convict them of first degree murder. The jury's rejection of the district attorney's argument that the killing was premeditated indicates the jury believed Collier's testimony that defendants said they only shot McDaniel because he turned around and they feared he might return with a gun.
Further buttressing the prosecution's case against Hoskins were the common threads between Collier's testimony about the circumstances of the murder and the White and Smith testimony. Hoskins told Smith that Edwards's gun "Jodie" was used in the murder; that Hoskins shot McDaniel in the head; that he did it in front of McDaniel's house; that he did it for Edwards; that it had something to do with tax returns; and that when McDaniel said he would be back, they killed him. Hoskins bragged to White that he "domed" McDaniel using a .45 or a .38 and wrote a song about McDaniel having "spilled his noodles." He also told White that Edwards also shot McDaniel using a .40-caliber gun. Finally, Collier's, Smith's and White's testimony about Hoskins's admitted role in the murder was corroborated by (1) ballistics and autopsy evidence showing "Jodie" was used in the killing along with a .45-caliber semi-automatic, the .45 had fired the bullet found in McDaniel's head and McDaniel was found with brain matter in his hair; (2) the eyewitness testimony that the shooter and one of two black males running from the scene had long dreadlocks; and (3) the testimony of Quevido showing Hoskins had a .45-caliber gun three months before the killing. Given this overwhelming evidence of Hoskins's guilt, apart from the challenged robbery-shooting testimony, we conclude, on the whole record, that the assumed errors were harmless beyond a reasonable doubt.
Hoskins also contends his counsel should have objected to a statement made by Edwards's counsel in closing argument that Hoskins contends accused him of killing a six-year-old girl during a robbery. Edwards's counsel argued that if Collier drove or rode in the car during a robbery in which a child was killed, Collier could have been charged under a felony murder theory as an aider and abettor of the robbery. The district attorney objected to this as arguing facts "outside the record," and the court sustained the objection. Edwards's counsel then stated, "I didn't mean to infer that happened. I meant to infer you should look whether to see that happened. To corroborate that it doesn't happen, to corroborate that she isn't being given immunity, that she isn't being charged, that she isn't the devil, and not just a little minor demon. What kind of person does that? What kind of a person pays her rent, feeds her child? Is that a demon or a devil or the prosecution's star witness?" We find no error on the trial court's part given the district attorney's objection, the court's striking of the argument, and Edwards's counsel's explanation that it was theoretical, not actual.
4. Evidence of Other Crimes Committed by Edwards
The last category of other crimes evidence Hoskins claims was erroneously admitted concerns statements by White and testimony by Collier and others about other crimes committed by Edwards. Hoskins contends he "was probably convicted in whole or in part on the basis of his association with Edwards," who through admission of other crimes evidence was portrayed "as a cruel and brutally violent person."
Here, Hoskins points to White's statement about Edwards shooting someone in the head, shooting someone on a Saturday night, threatening to kill White over money and flashing a gun at him; Collier's testimony about Edwards having burned down her house and texting her about it; a police officer testifying that when he stopped Edwards with Smith in June 2012, Edwards had a plastic bag containing what the officer suspected was rock cocaine; and Smith testifying that Edwards shot at him shortly after Smith testified against Edwards in the drug possession case and Edwards tried to pin the murder on him and was mad enough to shoot at him.
As with most of the other evidence of criminal conduct that Hoskins now claims should not have been admitted, his counsel did not object to the admission of this evidence under Evidence Code section 1101 or section 352; nor did Edwards's own counsel. Indeed, Edwards's counsel returned to some of these subjects during her cross-examination of Collier and Smith. Hoskins's counsel also elicited testimony from Collier about Edwards "oftentimes hav[ing] a quantity of drugs."
The failure to object to this testimony prevented the trial court from addressing whether it should be excluded, but again the People do not argue forfeiture. Had an objection been raised and overruled, we would not find an abuse of discretion. The evidence of Edwards's drug possession was not remotely prejudicial compared with the evidence concerning the murder. As to the evidence of Edwards having shot at other people, White's statement about this bordered on incoherent. Neither his statement about Edwards's shooting nor Smith's testimony that Edwards's shot at him in any way implicated Hoskins. In Collier's testimony about Edwards having burned her house down, she did not mention Hoskins, and there was no evidence or argument suggesting he had any involvement in that incident. Finally, the house fire incident was relevant; Edwards's counsel used it, along with other evidence, to argue Collier had strong motives to lie at trial. In short, none of this evidence implicated Hoskins, and no rational juror would conclude from it that Hoskins participated in the murder of McDaniel.
In support of his argument that the other crimes evidence concerning Edwards was prejudicial error, Hoskins relies on three cases, none of which is on point. In People v. Albertson (1944) 23 Cal.2d 550, the evidence connecting Albertson to the murder by poisoning was circumstantial and very weak (id. at pp. 563-568), and the trial court admitted evidence of an assault on the victim several weeks before his death by a stranger. (Id. at pp. 568, 576, 578, 580.) The appellate court held this was error. (Id. at pp. 580-581.) Here, there was strong evidence that Hoskins murdered McDaniel that was neither circumstantial nor attenuated; it consisted of his own admissions to three different people that he and Edwards shot McDaniel.
People v. Chambers (1964) 231 Cal.App.2d 23 involved a joint trial of two defendants for separate acts of abuse against aged and mentally ill patients in a rest home owned by Chambers. (Id. at p. 25.) Chambers was charged with a single act of punching a patient, whereas his codefendant was charged with multiple acts of physical abuse against many patients many of which were inflammatory. (Id. at pp. 25-27.) The appellate court concluded Chambers had been denied due process by consolidation of the defendants' trials and admission of evidence about the other defendant against Chambers. Admission of the "massive quantum of prejudice-arousing evidence of brutality in the rest home" on the one hand and the "comparative thinness of directly incriminating evidence" against Chambers on the other hand made him vulnerable to a verdict of "[g]uilt by association." (Id. at pp. 27-29.) Chambers is a far cry from this case, in which the evidence of guilt on the part of both defendants was strong, and if not precisely equal, was approximately so, and the uncharged offenses evidence was less inflammatory than the evidence of the murder.
Finally, People v. Jackson (1967) 254 Cal.App.2d 655 does not aid Hoskins. Jackson was tried for attempted grand theft from a utility company substation where he was discovered with a man named Lee and ran. To prove Jackson intended to steal, the prosecution offered evidence of four similar crimes committed by Lee without Jackson's involvement. (Id. at p. 657.) The court held this was error because it placed on Jackson "the burden of proving Lee's innocence of the principal crime in order to avoid the imputation to him of Lee's intent." (Ibid.) Here, there was no theory by the prosecution that Edwards's other misdeeds proved Edwards's role in the murder, much less that of Hoskins. Nor could rational jurors have linked Hoskins to the McDaniel murder because of Edwards's alleged unrelated crimes.
IV.
Hoskins Has Not Shown Ineffective Assistance of Counsel in the Treatment of Other
Crimes Evidence Except in One Respect That Was Not Prejudicial.
Hoskins contends his counsel was ineffective because he did not object to the Quevido testimony, the evidence about Hoskins's escape, statements by White in his recorded interview implicating Hoskins in robberies and other crimes, testimony implicating Edwards in various crimes, and some of Collier's testimony about the robberies. Hoskins claims his counsel should have sought to redact White's statement to police to eliminate the objectionable statements about other crimes and should have sought a limiting instruction for the other crimes evidence in Collier's testimony and White's statements. Hoskins's ineffective assistance of counsel contentions are unpersuasive for multiple reasons.
A. Governing Legal Principles
"To show ineffective assistance of counsel, defendant has the burden of proving that counsel's representation fell below an objective standard of reasonableness under prevailing professional norms, and that there is a reasonable probability that, but for counsel's unprofessional errors, the result would have been different." (People v. Kelly (1992) 1 Cal.4th 495, 519-520 (Kelly).) "Generally, failure to object is a matter of trial tactics as to which we will not exercise judicial hindsight." (Id. at p. 520.)
" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." ' [Citations.] '[W]e accord great deference to counsel's tactical decisions' [citation], and we have explained that 'courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' [Citation.] [¶] In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions." (People v. Weaver (2001) 26 Cal.4th 876, 925-926.
" 'Competent counsel is not required to make all conceivable motions or to leave an exhaustive paper trail for the sake of the record. Rather, competent counsel should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances.' " (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147-1148.) To prevail on an ineffective assistance claim, the defendant "must affirmatively show counsel's deficiency involved a crucial issue and cannot be explained on the basis of any knowledgeable choice of tactics." (Id. at p. 1147.)
B. Analysis
1. Quevido Testimony
Hoskins has not shown his counsel's failure to object to the Quevido testimony amounted to ineffective assistance. (See People v. Gray (2005) 37 Cal.4th 168, 207 [" '[f]ailure to object rarely constitutes ineffective legal representation' "].) Hoskins's counsel did not object to this testimony for good reason; as we have discussed, the testimony was highly relevant because, coupled with the ballistics evidence, it tended to connect Hoskins to the crime. It is unlikely the trial court would have sustained any objection to this testimony, and counsel could reasonably have assumed an objection would have been futile. (See People v. Maury (2003) 30 Cal.4th 342, 419 [counsel not ineffective for failing to object where he could reasonably have concluded objection would be futile], disapproved in part on other grounds in Barnett v. Superior Court (2010) 50 Cal.4th 890, 901.) Further, counsel proactively sought and received a limiting instruction regarding this evidence that eliminated any potentially prejudicial effect it might otherwise have had.
Specifically, Hoskins's counsel requested, and the trial court instructed the jury, with a modified version of CALCRIM No. 375 regarding this evidence: "The People presented evidence that the defendants committed other offenses that were not charged in this case. You may consider this evidence only if the People have proved by a preponderance of the evidence that defendants in fact committed the offenses. . . . If the People have not met this burden, you must disregard this evidence entirely. If you decide that the defendants committed the offenses, you may, but are not required, to consider that evidence for the limited purpose of deciding whether or not a defendant possessed a specific firearm during the commission of the charged offenses. Do not consider this evidence for any other purpose. [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged offenses, that conclusion is only one factor to consider along with the other evidence. It is not sufficient by itself to prove that the defendant is guilty of murder and felon in possession of a firearm or that the personal use of a firearm . . . [has] been proved. The People must still prove every charge and allegation beyond a reasonable doubt. (Italics added.) "We presume the jury understood and followed the court's instructions." (People v. Jackson (2016) 1 Cal.5th 269, 352.)
2. White's Statements About Hoskins's Conduct
We next address Hoskins's argument that his counsel's failures to object to Nguyen's testimony, seek redaction of White's statement or request a limiting instruction that would apply to that evidence constituted ineffective assistance of counsel.
As to Nguyen's testimony about Hoskins's escape, elicited by Edwards's counsel, Hoskins's counsel explained his reason for not having objected while arguing the mistrial motion he made based on the admission of this and other evidence. "When the question was asked of the witness at the time, 'isn't it true that Mr. Hoskins said . . .'[,] it was out there at that point. It was very difficult at that point to object without sending up flares." As he stated further, "I don't think I waived that objection. I just chose not to make a spectacle out of it in front of the jury." In other words, Hoskins's counsel made a judgment call that objecting would do more harm than good. This is precisely the kind of tactical decision that we do not second-guess. (Kelly, supra, 1 Cal.4th at pp. 519-520.) We cannot say that Hoskins's strategic decision not to highlight the testimony by objecting to it fell below an objective standard of reasonableness under prevailing professional norms.
As to White's various statements, the trial court found defense counsel had a tactical reason for not seeking redaction of White's statement. In denying defendants' mistrial motion, the trial court stated, "much of Mr. White's testimony is impeached by the defense based on the degree of his intoxication . . . at the time that he was giving the statement. So there was a reason to bring it all in." We have reviewed the video recording, and the trial court correctly described it as showing intoxication that was so substantial that, at times, White's statements were essentially incoherent. In view of the trial court's finding that counsel's failure to request redaction was a reasonable tactical decision, Hoskins has failed to show counsel's failure to seek redaction to eliminate White's statements about other crimes committed by Hoskins and by Edwards constituted ineffective assistance. (See People v. Weaver, supra, 26 Cal.4th at pp. 925-926.)
This leaves the question whether Hoskins's counsel's failure to seek a limiting instruction constituted ineffective assistance, an issue we address below.
3. Collier's Testimony About the Robberies
The strategy pursued by Edwards's counsel at trial was to use all available evidence, including Collier's testimony about other crimes that was potentially damaging to both Edwards and Hoskins, to impeach her. Collier was the key witness for the prosecution, and if successful, this strategy would have redounded not only to the benefit of Edwards, but even more to the benefit of Hoskins. Edwards was tied to the murder by "Jodie," the gun he owned that ballistics evidence showed had been used in the shooting of McDaniel. Collier testified that "Jodie" was Edwards's gun, but so did Smith, who was in Edwards's car with Edwards when he was found in possession of "Jodie." Regarding Hoskins, however, the ballistics evidence and the Quevido testimony tying him to the murder were circumstantial, as was the testimony about a shooter with long dreadlocks running from the scene. But the testimony of Collier about Hoskins and Edwards leaving to confront McDaniel and, after returning, admitting they had shot him was critical to the prosecution's case against Hoskins.
Edwards's counsel argued that Collier, whom she aptly described as the prosecution's "star witness," made up the story she told police about the McDaniel murder because she was angry about Edwards's affair and blamed him for her house burning down. She suggested Collier's testimony enabled her to avoid being prosecuted for her participation in the robberies, noting Collier had not been charged with any of them. Finally, she argued that if there had been a shooting during a robbery in which Collier participated, Collier had an even stronger incentive to lie: to avoid being prosecuted for a felony murder. Summing up, she told the jury the People could not meet their burden of proof with "the statement of a demon who's by her own admission a serious criminal."
Edwards's counsel reminded the jury that Collier, White or Smith were not present at the scene, and "all had motives," were "given some financial remuneration, flights and they were forgiven or not prosecuted. . . . They were forgiven for their crimes. They were given their freedom. Their crimes, some of them, were not even investigated." She urged the jury not to "believe these criminals that weren't there that listened to people or made up stuff." "Don't believe that the level beyond a reasonable doubt has been proven by these three criminals that you have been asked to believe."
Hoskins's counsel joined in his co-defense counsel's strategy of using other crimes evidence to impeach Collier. This is evidenced by his failure to object when Edwards's counsel, at the hearing on motions in limine, made plain she intended to impeach Collier with Collier's own criminal conduct committing robberies with defendants. It is evidenced by his failure to raise the issue of Collier's other crimes testimony at any time during the next two weeks as the trial proceeded. And it is evidenced by his failure to raise the issue until the middle of Edwards's counsel's cross-examination of Collier, after she had testified that she drove or rode with Edwards and Hoskins as they committed robberies and Hoskins was the one who committed them. It thus appears Hoskins's counsel made much the same calculus as Edwards's counsel that impeaching Collier was more important for his client than avoiding the taint of the crimes he and Edwards committed jointly with Collier.
It is true that Hoskins's counsel did finally object to Collier's testimony about the robberies before Collier testified that a shot was fired during one of the robberies. However, he did not inform the court that she might testify to a shooting. His belated objection after Collier testified about the robberies does not show that he did not join in Edwards's counsel's strategy. It is just as likely that his belated objection reflected a view that Collier had already provided what they needed to impeach her and that further testimony about the robberies was unnecessary and could do more harm than good.
In his closing argument, Hoskins's counsel built on the foundation laid by Edwards's counsel. First, he tackled the Quevido testimony, relying on the relevant instruction to argue that evidence was not to show Hoskins had robbed him but only that he had a .45-caliber gun. He reminded the jury that two law enforcement witnesses had said they could not tell just by looking what kind of gun it was or that it was a .45, and argued that Quevido's testimony was not enough to show that Hoskins had a .45 on the day of the murder, which was how the prosecution was trying to tie him to that crime.
Hoskins's counsel then discussed White, Smith and Collier—arguing Officer Tran was the glue that tied them all together, and that Tran had done sloppy police work. He reminded the jury that White and Smith were in-custody informants whose testimony should be viewed with caution, and the jury should not consider their statements unless the prosecution proved they had not communicated with each other. He pointed out statements made by White that were obviously untrue, such as that Edwards and Hoskins shot McDaniel while trying to rob him and that Hoskins was sleeping with Collier. White was a "dope fiend" "looking for that next hit," would "say anything," and what he said "just doesn't fit what happened out there." Smith was caught with the gun used during the murder and didn't want to go down for the murder, and Smith also testified that " 'in jail things get around.' " And now he was back out on the streets and could have learned about "this little tax thing that . . . McDaniel had going" on the streets, where "[a] lot of people knew about it."
Finally, Hoskins's counsel turned to Collier, echoing the arguments of Edwards's counsel that she instigated the murder because she was angry at McDaniel about the tax scam and the bad "dope" he had sold her, and because she felt guilty because she herself should have been prosecuted for the murder. He argued the only thing that connected Hoskins to the crime was that he knew Edwards and that only Edwards had a motive to shoot McDaniel. The evidence that Hoskins was there was his supposed admission to Collier, who couldn't clearly say which defendant said what. "[I]f that is the best you got," he argued, "it's not proof beyond a reasonable doubt."
There is no question that Edwards's counsel's strategy to elicit evidence of defendants' participation in robberies was a risky one, as even the trial court noted. There is also no question that Hoskins's counsel was aware of his co-counsel's planned strategy, and it seems clear he decided to join or at least acquiesce in that strategy, to a significant degree. Both counsel necessarily understood that impeaching Collier with other crimes evidence posed a risk of also damaging their clients. Indeed, Edwards's counsel had pursued the same strategy and elicited most of the same evidence at the preliminary hearing, at which Hoskins's counsel was present. Edwards's counsel's decision to employ this risky strategy, and Hoskins's counsel's decision not to object to any of it but the shooting, may seem ill-considered in hindsight. However, Hoskins has not shown either decision was outside the bounds of reasonable advocacy at the time of trial.
Collier was a very strong witness against both defendants. She was the connection between the defendants and McDaniel, and only she could describe the murder with grisly detail, as relayed to her by the defendants later that day, and their callousness in committing it. In short, she was central to the prosecution's case, and defendants had little chance of avoiding a guilty verdict on the murder charge if the jury believed her. They had no choice but to attack her credibility. It is true that there was other impeachment evidence, including Edwards's affair with another woman, Edwards's having set Collier's home on fire, Collier's participation in a tax fraud and her conviction of a felony for writing a fraudulent check. But defense counsel could well have viewed these facts as inadequate to undermine her damning testimony against them. Defense counsel could rationally have decided to use all impeachment evidence at its disposal to attack Collier, notwithstanding the attendant risk that some of that evidence would put their clients in a bad light. If the jury believed her testimony that defendants admitted having committed the murder, it would make little difference whether it also believed her testimony about their robberies and other criminal acts.
It is clear, on this record, that Hoskins's counsel made a strategic decision to join in Edwards's counsel's strategy of using most of the criminal acts in which Collier testified she participated in as a means of attacking Collier's credibility. Hoskins's attempt to second-guess that strategy after it proved inadequate to prevent his conviction does not demonstrate ineffective assistance of counsel.
Our analysis of Hoskins's counsel's failure to timely to object to the evidence that Hoskins may have shot at someone during a robbery is somewhat different because that evidence was more damaging than the evidence of the robberies alone. Hoskins's counsel's failure to raise this issue with the court in a timely fashion arguably constituted ineffective assistance. The robbery-shooting testimony was closer in kind to the crime Hoskins was charged with, which involved a shooting, albeit not a shooting during a robbery. As the trial court indicated when it denied the mistrial motion, it was not made aware of this potential testimony even though defense counsel learned Collier might so testify the night before she testified. Reasonably competent counsel would have raised the issue of the shooting and attempted to prevent its admission the morning after the district attorney disclosed that Collier had admitted to a shooting, and before the cross-examination by his co-defense counsel had begun.
Even assuming, without deciding, that Hoskins has shown deficient performance by his counsel in his failure timely to object to the shooting evidence, Hoskins cannot prevail on his ineffective assistance argument unless he has also demonstrated prejudice, i.e., that there was a reasonable probability that the result would have been different if his counsel had objected to the shooting testimony and it had been excluded. (Kelly, supra, 1 Cal.4th at pp. 519-520.) He has not done so. When his objection was overruled and Collier testified to the shooting during a robbery, Hoskins's counsel mitigated the effect of that testimony by eliciting on cross-examination Collier's admission that she had not seen Hoskins shoot anyone but had only heard shots and didn't know if anyone had been shot. More important, as we have already discussed in Part III(B)(3), Hoskins's own boasts about the incident to three different people, to whom he provided consistent information about the McDaniel murder, and the evidence that corroborated those boasts, provided overwhelming evidence of his guilt. His own pride in his murderous acts was his ultimate undoing and would have been even if Collier had not testified about the unrelated shooting.
4. Evidence of Other Crimes Committed by Edwards
We have already concluded that counsel did not object to Collier's arson testimony or seek to redact White's statements for tactical reasons, which precludes any finding of ineffective assistance. As to Smith's statements about Edwards shooting at him, this evidence, like the Collier robbery testimony, was a double-edged sword for the defense. On the one hand, it showed Edwards was willing to shoot at someone who had been a friend of sorts, possibly in retaliation for Smith's testifying against him in a drug case. On the other hand, it showed Smith had a motive to frame Edwards for the murder. The evidence of Edwards shooting at Smith served no tactical purpose for Hoskins, since it did not give Smith a reason to implicate Hoskins. But Hoskins's counsel could reasonably have concluded that there was little value in objecting because Hoskins was not implicated in Edwards's shooting at Smith. Hoskins has thus failed to show his counsel's failure to object to this testimony fell below an objective standard of reasonableness under prevailing professional norms. Nor has he shown there is a reasonable probability that, but for counsel's failure to object, the result would have been different, and we have already concluded no rational juror would conclude from this evidence about Edwards shooting at Smith that Hoskins participated in the murder of McDaniel.
5. Failure to Request a Limiting Instruction
Hoskins's penultimate claim of ineffective assistance is predicated on his counsel's failure to obtain a limiting instruction that would preclude the jury from considering the other crimes evidence as propensity evidence, i.e., to show Hoskins had a bad character or was disposed to commit crime. As we have indicated, counsel did request and obtain such an instruction, based on CALCRIM No. 375, but that instruction addressed only evidence elicited by the prosecution and not the other crimes evidence elicited by Edwards's counsel. The instruction clearly addressed the Quevido testimony showing Hoskins possessed a .45-caliber semi-automatic weapon three months before the murder. It also ostensibly covered White's statements, Smith's testimony, Nguyen's testimony and Collier's testimony about the arson. While the instruction did not list the different categories of evidence, it covered evidence presented by the People "that the defendants committed other offenses that were not charged in this case," and it instructed the jury could consider this evidence only "for the limited purpose of deciding whether or not a defendant possessed a specific firearm during the commission of the charged offenses" and not "for any other purpose." As to the evidence other than the Quevido testimony, the instruction was potentially confusing in that this evidence did not tend to show either defendant possessed a particular firearm. However, read literally, it informed the jury it could not consider any of this evidence unless the People had proved by a preponderance of the evidence that defendants had committed the offenses to which the witnesses testified and could not consider it for any purpose other than deciding whether a defendant possessed a specific firearm. The instruction specifically told the jury not to "conclude from this evidence that the defendant has a bad character or is disposed to commit crime."
This instruction allowed the jury to consider the Quevido robbery only for the limited purpose of determining whether Hoskins possessed a specific firearm (a .45-caliber semi-automatic) during the commission of the murder. It also in effect prevented the jury from considering at all other evidence of crimes presented by the prosecution, including all of White's statements about other crimes committed by Hoskins or Edwards; Collier's testimony that Edwards had burned down her house; Smith's testimony that Edwards had shot at him; and Officer Matthews's testimony about Edwards possessing cocaine. All this evidence was presented by the People, none of it had any bearing on defendants' having possessed "specific firearm[s] during the commission of the charged offenses," and the jury was instructed it could not be used for "any other purpose" and specifically could not be used to conclude either defendant had "a bad character" or was "disposed to commit crime."
What the instruction did not address was Collier's testimony about other robberies or the shooting during a robbery, which was presented not by the People, but by Edwards's counsel. For the same reason, it did not cover Nguyen's testimony about White's statement that Hoskins had escaped from jail to kill Edwards. The question is whether Hoskins's counsel's failure to seek a broader instruction that would have covered that testimony amounted to ineffective assistance. This requires some background.
There was a lengthy colloquy between all counsel and the trial court regarding a limiting instruction. Hoskins's counsel had requested that the court give CALCRIM No. 375, which addresses Evidence Code section 1101, subdivision (b) evidence presented by the People to prove such disputed issues as identity, intent, motive and common plan. The form instruction begins by stating "The People presented evidence" that the defendant committed or engaged in a specified uncharged offense or conduct and instructs that the jury "may consider this evidence only if the People have proved [the uncharged offense or act] by a preponderance of the evidence," provides alternative paragraphs describing purposes for which the evidence may be considered and directs the jury not to consider it for any other purpose or to conclude from it "that the defendant has a bad character or is disposed to commit crime." (CALCRIM No. 375.)
As the parties discussed, the form instruction focuses on evidence offered by the prosecution and imposes on it the burden of proving the prior offenses or conduct as a prerequisite to the consideration of that evidence. Some of the evidence was elicited by counsel for Edwards, not by the district attorney, who stated he did not want to shoulder the burden of proving crimes elicited by defense counsel. The court suggested that "rather than providing a litany of all those [other crimes and conduct] at the beginning of the instruction," it would fashion a special instruction that "simply ought to say 'do not conclude from any evidence of other offenses that either defendant may have committed as evidence of bad character or is disposed to commit crime." Both Hoskins's counsel and the district attorney disagreed, and Hoskins's counsel suggested the instruction be based on CALCRIM No. 375 but address only the evidence elicited by the prosecution and state its sole purpose was to show Hoskins possessed a particular gun. The other evidence about robberies and other crimes that was elicited for credibility purposes could be addressed "as part of the general credibility instruction" and then argued by Edwards's counsel during closing.
In the end, the court and counsel all agreed to Hoskins's counsel's proposal to limit the CALCRIM No. 375 instruction to the evidence offered to show a defendant possessed a particular firearm, which Hoskins's counsel said he intended "to argue as to Mr. Hoskins, that one robbery incident that evidence was put on." The court also instructed the jury that "[t]he fact that a criminal charge has been filed against the defendant is not evidence that the charge is true" and that it "must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial." The court also gave credibility instructions, including one that told the jury it could consider in evaluating a witness's testimony whether she was influenced by bias or prejudice, had been convicted of a felony, had engaged in other conduct that reflected on her believability, or was promised immunity or leniency in exchange for his or her testimony. This aided defendants' argument that Collier should not be believed because of her prior criminal acts and her grant of immunity, although it did not instruct the jury that Collier's testimony about robberies or a shooting should not be considered for any other purpose.
The record does not reflect explicitly why Hoskins's counsel rejected the court's suggested instruction that the jury should "not conclude from any evidence of other offenses that either defendant may have committed as evidence of bad character or is disposed to commit crime." The colloquy suggests he wanted the full CALCRIM No. 375 instruction regarding the Quevido testimony, including its requirement that the prosecution had to prove the robbery occurred before that evidence could be considered and its limited purpose of showing whether Hoskins owned a particular firearm. If the court had fashioned a similar instruction for the Collier testimony, the jury would have to conclude Collier's testimony about the robberies and shooting was true before it could consider that evidence to evaluate her credibility. That would put the defense in the awkward position of having to argue they had proved by a preponderance that their own clients committed armed robberies with Collier before they could consider that evidence to assess her credibility. The general credibility instruction, by contrast, allowed the jury without limitation to consider Collier's conduct to assess her believability.
Counsel may also have considered it less important to encompass the Collier robbery testimony in the CALCRIM No. 375 instruction for another reason. Collier was the prosecution's "star witness," and if the jury believed her, Hoskins and Edwards would be convicted. Defense counsel would impeach her with everything at their disposal by painting her as a woman scorned by the unfaithful lover who had burned down her house; a woman who was once defendants' partner in crime; a woman who, having been spurned by Edwards, turned on him and framed him and Hoskins for a murder they did not commit; and a woman who, in return for her testimony, received immunity from the prosecution for her own serious crimes. If this strategy worked, the jury would not believe defendants murdered McDaniel, and whether it believed defendants were robbers would not matter. If the strategy failed and the jury believed Collier's testimony that defendants admitted they murdered McDaniel, it would matter little that the jury might also believe her testimony that they were armed robbers and criminals. In short, whether the defense strategy was successful or unsuccessful, the testimony about armed robberies would be beside the point.
The Nguyen testimony that White stated Hoskins escaped from jail was very brief, and Hoskins's counsel made a tactical decision not to highlight it either by objecting to it. Also, it would have been difficult to justify an instruction that encompassed this testimony but not Collier's testimony about other crimes. Moreover, any such instruction would have required that this testimony be identified to the jury in the instruction, which would have highlighted the escape in precisely the way counsel sought to avoid. The same is true of the Collier shooting testimony. It would have been difficult to include in the instruction this testimony, but not the other Collier testimony about armed robberies, without identifying and thereby highlighting it.
In short, Hoskins has failed to show his counsel's failure to seek a limiting instruction that encompassed the Collier robbery and shooting testimony and the Nguyen escape testimony "fell below an objective standard of reasonableness under prevailing professional norms." (Kelly, supra, 1 Cal.4th at pp. 519-520.) Nor has he shown a reasonable probability that, but for that failure, the result would have been different.
We recognize that the jury requested a transcript and was provided a readback of the Nguyen testimony about Hoskins's escape. We do not know why the jury believed that testimony was significant, but we do know it was not mentioned during any of the closing arguments to argue propensity or otherwise. We also know the jury requested Collier's entire testimony, which it later narrowed to her testimony "about the events that took place on the day of the murder." On the morning of the second day of deliberations the jury was given the readback of Collier's testimony about events on the day of the murder, by 2:00 p.m. that afternoon the foreman informed the court the jury had not been able to unanimously agree that Hoskins or Edwards were guilty of first degree murder and by 3:00 p.m. the jury had reached verdicts finding each defendant guilty of second degree murder, personally and intentionally discharging a firearm and causing the death of McDaniel, and possession of a firearm by a felon on the date of the murder. In the end, the jury deliberated for less than two days before reaching these verdicts. The brevity of the deliberations and the fact that the jury reached a verdict within hours of the readback of Collier's testimony about the murder also strongly suggest the result would have been the same even if there had been a more comprehensive limiting instruction covering all the other crimes evidence.
6. Failure to Request a Severance
Hoskins's final argument that he received ineffective assistance of counsel incorporates both his prior arguments that admission of the other crimes evidence involving Edwards prejudiced him and that Edwards's statements to Collier on the telephone and later that afternoon about the murder were inadmissible. Hoskins claims "[t]he admission of all this evidence involving Edwards, impermissibly lightened the prosecution burden of proving Hoskins guilty beyond a reasonable doubt."
"The Legislature has established a strong preference for joint trials. [Citation.] Section 1098 states, in relevant part: 'When two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order separate trials.' 'Joint trials are favored because they "promote [economy and] efficiency" and " 'serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.' " [Citation.]' [Citation.] We review the denial of a severance motion for abuse of discretion, based on the facts as they appeared at the time of the court's ruling. [Citations.] 'Even if a trial court abuses its discretion in failing to grant severance, reversal is required only upon a showing that, to a reasonable probability, the defendant would have received a more favorable result in a separate trial. [Citation.]'
" 'When defendants are charged with having committed "common crimes involving common events and victims," as here, the court is presented with a " 'classic case' " for a joint trial. . . . ' "If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials 'would appear to be mandatory in almost every case.' " ' " (People v. Winbush (2017) 2 Cal.5th 402, 455-456 (Winbush).)
Here, Hoskins and Edwards were charged with McDaniel's murder. Their defenses were largely consistent. The evidence against both was strong. As in Winbush, "[s]ignificant independent evidence" established Hoskins's guilt, and most of the proof of his guilt "came from evidence 'out of his own mouth.' " (Winbush, supra, 2 Cal.5th at p. 457.) Contrary to Hoskins's arguments, this was hardly a situation in which evidence pertaining to Edwards, even had it been inadmissible as to Hoskins, " 'would have the effect of bolstering an otherwise weak case.' "
Further, insofar as Hoskins argues Edwards's counsel's decision to elicit other crimes evidence was grounds for a severance, we disagree. As we have already indicated, Hoskins's own counsel for the most part joined in this strategy, which, while risky, was not an unreasonable effort to play the bad hand both counsel were dealt. To the extent there were differences between trial counsel regarding strategy, this is not alone grounds for a severance; nor has Hoskins shown other grounds entitled him to a severance. (See People v. Mackey (2015) 233 Cal.App.4th 32, 99-100 [trial court should evaluate whether consolidation may cause introduction of damaging evidence not admissible in separate trial, and whether otherwise inadmissible evidence is unduly inflammatory or would bolster otherwise weak case].)
V.
The Trial Court Did Not Violate the Bruton-Aranda Rule or the Evidence Code in
Admitting Edwards's Incriminating Statements.
Hoskins claims his federal constitutional rights were violated by the trial court's admission of Edwards's statements to Collier by phone shortly after the shooting and in a car later that night, when Hoskins was also present. He asserts that because Edwards invoked his Fifth Amendment right not to testify and, therefore, could not be cross-examined, the admission of Edwards's statements implicating him, Hoskins, in crimes violated his Sixth Amendment right to confrontation according to Bruton v. United States (1968) 391 U.S. 123 (Bruton) and People v. Aranda (1965) 63 Cal.2d 518 (Aranda), and, furthermore, that his trial counsel was ineffective in failing to seek a severance of his case from Edwards's case based on Bruton-Aranda. Alternatively, he argues Edwards's statements should have been excluded under state law as inadmissible hearsay. Hoskins objected to this evidence in the trial court, and the trial court overruled the objection, citing the declaration against interest and adoptive admissions exceptions to the hearsay rule and the decision in People v. Arceo (2011) 195 Cal.App.4th 556 (Arceo).
A. Hoskins's Bruton-Aranda Claims Lack Merit.
Hoskins's Bruton-Aranda claim requires that we discuss both Bruton and Aranda, as well as Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
Bruton was tried with a codefendant, and both were convicted, on a federal charge of armed postal robbery. (Bruton, supra, 391 U.S. at p. 124.) The codefendant, Evans, orally confessed to the crime to a postal inspector while incarcerated in a city jail for other matters, and in doing so incriminated Bruton. (Ibid.) Despite an instruction to the jury that it could only consider the confession against Evans, the Bruton court held the admission of the incriminating confession violated Bruton's constitutional right to confrontation. (Id. at pp. 126-127.)
In Aranda, which foreshadowed the decision in Bruton, Aranda was jointly tried with codefendant Martinez, and both were convicted of first degree robbery. Evidence was presented that Martinez had confessed to police on the day of his arrest that he and Aranda committed the crime, and the jury was instructed to consider this confession as to Martinez only. (Aranda, supra, 63 Cal.2d at pp. 522-523.) Our high court held that as to Aranda, the admission of Martinez's statement was improper and it was "reasonably probable that a result more favorable to Aranda would have been reached had Martinez's confession been excluded." (Id. at p. 527; see id. at p. 524.)
In Crawford, the high court held that "testimonial statements," meaning, generally, formal statements made by an accuser to government officers, may not be admitted unless the witness is available to testify at trial or the defendant has had a prior opportunity to cross-examine her. (Crawford, supra, 541 U.S. at pp. 51-53, 59.) Later, in Davis v. Washington (2006) 547 U.S. 813, the court "clarified a point it had left open in Crawford, now confirming that the confrontation clause is concerned solely with hearsay statements that are testimonial [citation], i.e., those by which " ' "witnesses" ' "—the word used in the Constitution—make ' " 'solemn declaration[s] or affirmation[s] . . . for the purpose of proving some fact.' " ' " (People v. Cage, supra, 40 Cal.4th at p. 981.)
Hoskins, quoting People v. Lewis (2008) 43 Cal.4th 415, 453, disapproved in part on other grounds in People v. Black (2014) 58 Cal.4th 912, 919 claims that in Bruton, the high court held that " 'admission into evidence at a joint trial of a nontestifying codefendant's confession implicating the defendant violates the defendant's right to cross-examination guaranteed by the confrontation clause, even if the jury is instructed to disregard the confession in determining the guilt or innocence of the defendant.' " He argues this rule applies whether the hearsay evidence was testimonial within the meaning of Crawford and its progeny. He suggests that to hold otherwise would be a failure to follow Bruton before the high court itself has overruled it.
We do not agree. Bruton addressed statements made by a codefendant, while incarcerated, to a postal inspector investigating an armed postal robbery. There can be little question that such statement would be viewed as "testimonial" within the meaning of Crawford. Similarly, the Aranda codefendant's statements were made during police interrogations while he was in custody. It is true that Crawford did not overrule Bruton (or Aranda). It did not need to. Bruton's confrontation clause holding that admission of the codefendant's statements made in custody and under interrogation by a government official violated the defendant's right to confrontation was fully consistent with the court's later ruling in Crawford that the confrontation clause precludes admission of testimonial hearsay statements unless the witness is available to testify or the defendant had prior opportunity to cross-examine the witness.
Hoskins's position is that the Bruton rule applies to a codefendant's statements even if they are not testimonial. Here, of course, Edwards's statements to Collier cannot be viewed as "testimonial" under any post-Crawford understanding of that term, and Hoskins does not argue otherwise.
As our colleague and noted evidence scholar Justice Mark Simons has written in his California Evidence Manual, the cases since Crawford defining "testimonial" fall primarily into two groups: those involving "statements by victims and witnesses to law enforcement officers or agents who testify to those statements" and those involving "statements by individuals, like criminalists, provided to the trier of fact through a report prepared by that individual or through the testimony of an expert who relied on that report to form an opinion." (Simons, Cal. Evid. Manual (2018 ed.) Hearsay Evidence, § 2:115, p. 220.) The cases involving statements to family members, friends, neighbors, and teachers have all held such statements were non-testimonial. (Id., § 2:121, pp. 229-231.) Only where the person to whom the statement was made has a relationship with law enforcement have courts made or suggested exceptions. (See ibid.) Collier had no relationship with law enforcement when Edwards made his statements to her.
In Arceo, supra, 195 Cal.App.4th 556, a gang-related murder case, the Second District addressed an argument under Aranda-Bruton that is almost identical to Hoskins's argument. There, Arceo and Mejorado were jointly tried and convicted of murders, two in which both were involved and a third by Mejorado without Arceo. (Id. at p. 559.) On appeal, Arceo contended his Sixth Amendment right to confront witnesses was violated by the admission of testimony of civilian (non-law enforcement) witnesses who recounted the statements of Mejorado, as well as those of another codefendant, Sergio, who was tried separately. (Arceo, at p. 559.) The Second District rejected Arceo's arguments that his right to confrontation was violated by the admission of his codefendants' statements, because "the confrontation clause has no application to out-of-court nontestimonial statements." (Id. at p. 571.) Further, under Bruton and its progeny, a codefendant's hearsay statement, even if testimonial, is admissible " 'if it falls within "firmly rooted" hearsay exception or is "supported by a showing of particularized guarantees of trustworthiness." ' " (Ibid.) We agree with the analysis of Arceo, but even if we did not, Hoskins's argument is foreclosed by a California Supreme Court decision that was issued after this case was briefed.
In 2016, our high court held the Bruton-Aranda rule does not apply to nontestimonial statements. (Cortez, supra, 63 Cal.4th 101.) Defendant Cortez was tried with codefendant Bernal for murder and attempted murder. (Id. at p. 105.) A taped police interview of Bernal's nephew was played for the jury. (Id. at p. 107.) According to the nephew, Bernal had admitted to him that he and Cortez went shooting at some members of a rival gang in Cortez's car. (Id. at pp. 107-108 [Norma is Cortez; see p. 105 referring to "defendant Norma Lilian Cortez"].) Cortez, citing Bruton, argued the admission of Bernal's statements to his nephew violated her Sixth Amendment right to confront and cross-examine witnesses. (Cortez, at p. 129.) The court rejected that argument, holding Bruton was "inapposite because it involved a nontestifying codefendant's hearsay statement that did not qualify for admission against the defendant under any hearsay exception and that was 'clearly inadmissible against [the defendant] under traditional rules of evidence.' " (Cortez, at p. 129.) It further concluded—based on the "unequivocal" holding of Davis v Washington (2006) 547 U.S. 813 " 'that the confrontation clause applies only to testimonial hearsay statements and not to [hearsay] statements that are nontestimonial' "—that Bruton did not apply to Bernal's statements because they were "unquestionably nontestimonial." (Cortez, at p. 129.)
Citing cases in various state and federal courts, Hoskins asserts that whether the Bruton line of cases survived the testimonial versus nontestimonial classification is open to debate. In the wake of Cortez, which was decided between the time the primary and supplemental briefs in this case were filed, the debate, in this state at least, has ended. Since Edwards's statements to Collier were not testimonial, the Bruton-Aranda rule provides no basis for holding those statements inadmissible.
B. Hoskins's State Law Hearsay Claim Lacks Merit.
Hoskins's state law arguments focus on the two bases upon which the trial court admitted Edwards's statements to Collier, the exception for declarations against interest stated in Evidence Code section 1230 and the exception to the hearsay rule for adoptive admissions. We conclude Edwards's statements were admissible under the former and, therefore, have no need to address the latter.
Evidence Code section 1230 provides in relevant part that an out-of-court statement by an unavailable witness may be admitted for its truth if, when it was made, it "so far subject[s] [the declarant] to the risk of . . . criminal liability, . . . that a reasonable man in his position would not have made the statement unless he believed it to be true." We review the trial court's decision to admit such evidence for abuse of discretion. (People v. Grimes (2016) 1 Cal.5th 698, 712 (Grimes).)
To invoke the declarations against interest exception, the prosecution had to show Edwards was unavailable, which Hoskins concedes he was (People v. Fuentes (1998) 61 Cal.App.4th 956, 961-962), that the declaration was against his penal interest when made, and that it was sufficiently reliable to warrant admission despite its hearsay character. (Grimes, supra, 1 Cal.5th at p. 711.) The prosecution met this burden. Edwards's statement to Collier in the brief conversation he had with her on the telephone after the murder, "we shot that nigga," was a declaration against his penal interest because "a reasonable person in [Edwards's] position would have believed that th[is] admission[] would subject him to criminal liability." (Grimes, at p. 712.) The same is true of Edwards's statements to Collier in the car a few hours later, with Hoskins present, when he again admitted they shot Edwards and said, "it took a lot of bullets to take [McDaniel] down because of him being a big guy" and "the meat flew off his body." It is true that Edwards also said he didn't know if McDaniel was going to get a gun and felt it was a "kill or be killed" situation, which might mean he believed the killing was justified and he could claim self-defense, but regardless his other statements were such that a reasonable person would be concerned they would subject him to liability. This is especially so given the number of times he indicated he and Hoskins shot McDaniel, which were far more than necessary to simply disable him. Also, the fact that he and Hoskins immediately fled the scene reflects they were concerned about criminal exposure. The trial court did not abuse its discretion in admitting Edwards's statements under the declaration against interest exception.
We do not address Hoskins's claim that he was prejudiced by the trial court's cumulative errors because we have found the only instance of ineffective assistance of counsel and possible trial court error, which related to Collier's testimony about a shooting during a robbery, was not prejudicial. --------
VI.
Hoskins Failed to Show Error in the Order to Pay Cost of Probation Report.
Hoskins's next argues that the order requiring him to pay a $250 probation investigation fee "must be stricken because there is insufficient evidence to support the trial court's implied finding of ability-to-pay, and Hoskins did not forfeit his right to have the court make an ability-to-pay determination." He acknowledges his failure to object to the fee in the trial court, but contends that if the issue was forfeited his counsel was ineffective for failing to object. The People argue that the failure to object resulted in a waiver, and that because the record does not show why counsel failed to request a hearing on the issue Hoskins has not met his burden to show ineffective assistance of counsel.
We agree with the People. In People v. Trujillo (2015) 60 Cal.4th 850, our Supreme Court held that a defendant forfeits the ability to challenge the imposition of fees for a presentence investigation report on appeal by failing to object in the trial court to any noncompliance with the requirement that such fee be imposed only after the court finds defendant had the ability to pay. (Id. at pp. 858-859.) Further, as to defendant's ineffective assistance of counsel argument, the record does not show why trial counsel did not object or request a hearing on ability to pay, and there could be an explanation, such as that defendant had sufficient assets. In this circumstance, he has not met his burden to establish ineffective assistance of counsel. (People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
VII.
We Remand for Resentencing Under Section 12022 .53.
Hoskins was sentenced to 60 years to life, 25 years of which was based on the jury finding that he personally used a firearm, causing death. Edwards was sentenced to a term of 43 years to life, 25 years of which was based on the jury finding that he personally used a firearm, causing death.
After briefing was completed in these consolidated appeals, Hoskins and Edwards requested to file supplemental briefs regarding Senate Bill No. 620 (S.B. 620) (Stats. 2017, ch. 682). That legislation took effect on January 1, 2018, and vests sentencing courts with discretion to strike or dismiss firearm enhancements in the interest of justice. (§ 12022.53, subd. (h); see People v. Mathews (2018) 21 Cal.App.5th 130, 142.) They argue S.B. 620 is retroactive, and the People concede that it is. The People argue we should not remand for resentencing because "[i]t is unlikely that . . . the trial court would exercise its discretion to strike or dismiss appellants' firearm enhancements," and thus " 'no purpose would be served in remanding for reconsideration.' "
While the murder here was senseless and there was evidence that defendants were callous about it afterward, the jury did not find the murder was premeditated or convict them of first degree murder. At the time it sentenced defendants, the trial court had no discretion to strike the enhancements. It made no comments during the sentencing proceedings indicating it would necessarily have exercised its discretion in one way or the other. We therefore remand the case to the trial court to give it the opportunity to exercise its discretion under section 12022.53, subdivision (h).
VIII.
We Remand for the Superior Court to Afford Edwards Opportunity to
Make a Record Relevant to his Youth Offender Status.
Defendant Edwards also asserted in supplemental briefing that under People v. Franklin (2016) 63 Cal.4th 261 and People v. Perez (2016) 3 Cal.App.5th 612 we should remand his case to the trial court to afford him the opportunity to make a record that may be helpful at his future youth offender parole hearing. Those cases interpreted the youthful offender parole statutes, sections 3051 and 4801, to require trial courts to allow youthful offenders to put on the record, at or near the time of the offense, information regarding the juvenile offender's characteristics and circumstances at the time of the offense that will be relevant at the time of any future youth offender parole hearing. (Franklin, at pp. 283-284; Perez, at p. 619.)
Edwards was 22 at the time he committed the crimes in this case. The statute requiring youth offender parole hearings was amended in October 2013, effective January 1, 2016, to expand the requirement that youthful offender parole hearings be held to encompass persons who committed their controlling offense when they were 23 years old or younger (rather than under 18 years old). (Stats. 2015, ch. 471, § 1.) It was again amended in 2017 to cover persons who committed their offense when they were 25 or younger. (Stats. 2017, ch. 675 § 1; § 3051, subds. (a)(1), (b).) Neither of these amendments had been enacted when Edwards was tried and sentenced in 2013.
The People agree that Edwards is entitled to a remand for these purposes. We therefore remand the case for the trial court to ensure Edwards is afforded the opportunity to create a record of information that will be relevant at the time of his future youth offender parole hearing.
DISPOSITION
The judgment is affirmed in all respects save the sentences and Edwards's right to a youth offender parole hearing. We remand the case to the superior court to exercise its discretion under section 12022.3 as to both defendants and to afford Edwards a youthful offender parole hearing.
/s/_________
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________
MILLER, J.