Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 198228, Janet I. Kintner, Judge.
IRION, J.
A jury convicted Willie Ulysess Grant of first degree murder (Pen. Code, § 187) and found true an allegation that he personally and intentionally discharged a firearm proximately causing death (§ 12022.53, subd. (d)). The trial court sentenced Grant to 50 years to life in prison: 25 years to life for the murder, plus an additional consecutive term of 25 years to life for the firearm enhancement.
All statutory references are to the Penal Code unless otherwise indicated.
On appeal, Grant contends that his conviction must be reversed because: (i) it rests on the uncorroborated testimony of an accomplice; (ii) the trial court erred in failing to instruct the jury that the chief witness against him was an accomplice as a matter of law; (iii) the trial court omitted jury instructions that it intended to give from its oral presentation to the jury; (iv) the trial court confused the jury by instructing it on both felony murder and conspiracy; (v) the trial court erred in failing to sua sponte instruct on the lesser included offense of involuntary manslaughter; (vi) there was no substantial evidence to support the jury's finding that Grant personally used a firearm in committing the offense; (vii) the trial court erred in excluding as hearsay an exculpatory statement Grant made to police; (viii) the trial court erred in admitting evidence of ammunition found in Grant's apartment; and (ix) the effect of the cumulative errors alleged above denied Grant his constitutional right to a fair trial. As discussed below, we find Grant's contentions to be without merit and affirm.
FACTS
On April 7, 2006, Lawrence Laymon went to Grant's apartment where he met with Grant and Jason Rochelle. Grant told Laymon that he wanted to rob Ace Parking (Ace) where Laymon worked as a parking lot attendant. Grant showed Laymon a wig Grant could use as a disguise; Rochelle added that he could get a gun. Laymon was unwilling to participate in any robbery of an Ace parking lot, but believed, based on the conversation, that Grant "was going to . . . hit one of the lots."
Later that day, Laymon returned to his assigned Ace parking lot where he worked collecting cash and issuing tickets with Bryan Dawson, another Ace employee. Laymon received a call from Rochelle, where Rochelle asked Laymon how much money he had, and implied that Rochelle was going to "snatch [him] up" in a fake robbery. At the end of his shift, Laymon called his girlfriend, Patricia Ebarb, to give him a ride to the Ace office. He also called Rochelle to tell him that he was leaving the lot. Laymon told Rochelle that Dawson had no money since a supervisor had already picked up the proceeds from the lot, and that Laymon himself only had a few hundred dollars. Laymon left the lot around 8:00 p.m. At approximately the same time, Dawson also left the lot, driving his own car, heading to the downtown Ace office.
Cell phone records indicated that shortly after receiving Laymon's call, Rochelle made several calls to Grant, and that both Rochelle and Grant were in the downtown area.
After driving Laymon to the Ace office, Ebarb parked her car across the street from the office. Laymon saw that Dawson had parked inside the Ace office parking lot. As Laymon was walking across the street to the Ace office, he saw Rochelle driving out of the lot where Dawson had parked.
Ace employee Derrick Lyons let Laymon into the office. As the door was opened, Laymon heard a "loud noise" that sounded like a gunshot or a car backfiring. Soon after, as Laymon was filling out the paperwork to complete his shift, Ebarb began knocking on the office door. She stated that there was someone crying for help. Ace employees, including Laymon, exited and found Dawson unconscious and bleeding in the parking lot next to the Ace office. Police and paramedics soon arrived. Dawson died at the hospital the next morning of a single gunshot wound to the abdomen.
After Laymon learned that Dawson had died, he went to Grant's apartment to confront him. Laymon said to Grant and Rochelle, "Don't you all know that you killed that boy?" Grant and Rochelle said nothing at first; then Grant responded, "He did not want to give up the money." Laymon then asked if they even got any money, and Grant said, "No."
DISCUSSION
Grant challenges his conviction on nine separate grounds. We address each of his contentions separately below.
I
The Trial Court Did Not Err in Permitting the Jury to Resolve the Factual Question of Whether Laymon Was an Accomplice
Grant argues that the trial court erred by not instructing the jury that Laymon was an accomplice in the charged offense.
Under California law, the testimony of an accomplice requires corroboration, and should be "viewed with caution." (See CALCRIM No. 334; § 1111.) The trial court has a sua sponte obligation to instruct on these points " '[w]hen there is sufficient evidence that a witness is an accomplice.' " (People v. Tobias (2001) 25 Cal.4th 327, 331.)
There are two pattern instructions governing accomplice testimony, CALCRIM Nos. 334 and 335. An instruction modeled after CALCRIM No. 334 is appropriate when there is a dispute in the evidence regarding whether a witness is, in fact, an accomplice; an instruction modeled after CALCRIM No. 335 should be used when the evidence demonstrates that witness is "an accomplice as a matter of law." (See Bench Notes to CALCRIM No. 335 (2008) ["Give this instruction only if the court concludes that the witness is an accomplice as a matter of law or the parties agree about the witness's status as an accomplice"]; People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159, 1161.) The former instruction permits the jury to determine whether a witness is an accomplice and, accordingly, whether his or her testimony required corroboration and should be viewed with suspicion. The latter instruction removes the question from the jury's consideration, and dictates that they consider the witnesses' testimony as that of an accomplice.
In the instant case, the trial court instructed the jury with CALCRIM No. 334, allowing the jurors to determine whether Laymon was an accomplice and, thus, whether his testimony required corroboration and had to be viewed with suspicion. Grant contends this was error because the evidence demonstrated that Laymon was an accomplice as a matter of law. We disagree.
Under California law, "[a]n accomplice is . . . one who is liable to prosecution for the identical offense charged against the defendant . . . ." (§ 1111.) To meet this definition, the "witness must have 'guilty knowledge and intent with regard to the commission of the crime.' " (People v. Gordon (1973) 10 Cal.3d 460, 466; People v. Tewksbury (1976) 15 Cal.3d 953, 960 (Tewksbury) [trial court did not err in declining to instruct that the witness was an accomplice as a matter of law because despite witness's actions assisting defendant in perpetrating crime, those actions did "not confer upon her accomplice status unless she also acted with the requisite guilty intent"].) "[W]here the facts are in dispute as to the knowledge and intent of the asserted accomplice, the witness' liability for prosecution is a question of fact for the jury." (Gordon, at p. 467; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103 ["Whether a person is an accomplice is a question of fact for the jury unless the facts and the inferences to be drawn therefrom are undisputed"]; People v. Sully (1991) 53 Cal.3d 1195, 1227 ["accomplice status is a question of fact for the jury unless the evidence permits only a single inference"].)
In the instant case, Laymon's testimony provided the primary evidence relating to his knowledge and intent. In that testimony, Laymon never acknowledged any awareness of a plan to rob Dawson, much less an intent to be part of that plan. In fact, Laymon testified that he would not agree to rob Ace, that he was aware at the time that Dawson was shot that Dawson had no money, and that he told this to Rochelle in order to dissuade him from robbing Dawson.
To support his contention that Laymon was an accomplice as a matter of law, Grant points to evidence that Laymon, in various conversations prior to the day of the robbery, informed Grant and Rochelle about his job at Ace, and indicated how much money he collected. These discussions, however, did not establish that Laymon had the requisite intent to participate in a robbery, much less the attempted robbery of Dawson. The closest Laymon came to admitting his own complicity in a crime was when he stated he suspected Rochelle and Grant were going to conduct a "fake robbery" with Laymon as the target. This admission, however, even if construed (in light of Laymon's actions) as suggesting Laymon's cooperation in a "fake robbery," would not support Laymon's liability "for the identical offense charged against" Grant — a very real attempted robbery of Dawson that ended in murder. (§ 1111.) Indeed, a fake robbery of Laymon would not be a robbery at all (but rather a theft) since neither "force" nor "fear" would be present. (§ 211.)
In his appellate briefing, Grant overstates the inferences that the court was required to draw from the record, asserting that: Laymon "admitted to being involved in the planning of the robbery and to providing his accomplice with all the information necessary for completing the crime"; Laymon "admitted participating in a conspiracy to commit a theft of money from an [Ace] parking attendant"; and Laymon, along with Grant and Rochelle, "devised a loose plan to rob an [Ace parking lot] employee of their cash ticket proceeds." As explained above, Laymon did not admit complicity in the Dawson robbery, and any admission of complicity in a theft of Ace proceeds from his own person would not constitute liability for "the identical offense" charged against Grant. (§ 1111.)
In sum, while the jury was at liberty to disbelieve Laymon's testimony downplaying his involvement in the robbery, it was not compelled to do so. Consequently, there was, at most, a dispute regarding whether Laymon possessed the requisite knowledge and intent to be an accomplice in Dawson's murder, and thus the trial court's instruction leaving that question for the jury to decide was not erroneous. (See People v. Hayes (1999) 21 Cal.4th 1211, 1271, 1272 [holding that despite "strong circumstantial evidence that [the witness] was an accomplice in the murders," including the witness's own testimony that she "carried out tasks preliminary to the murders, drove the victims to the location at which they were killed, and lulled them by performing the weapons search during which [the defendant] shot them," the trial court did not err in leaving that question to the jury, as "the record d[id] not dictate a conclusion" that the witness had the requisite intent to be liable as an aider and abettor in the charged crime]; People v. Fauber (1992) 2 Cal.4th 792, 834 [holding that that despite witness's testimony that he "participated in discussions preceding the burglary, pointed out to defendant . . . the location of the [burglarized] residence," "urged" the perpetrators "either to 'do it' at that moment or 'blow it off,' " and "helped dispose of the robbery proceeds" did not "dictate . . . the conclusion that [the witness] acted with ' "guilty knowledge and intent with regard to the commission of the crime," ' as is required for accomplice liability" and consequently, "the trial court properly instructed the jury to decide the question"]; see also Tewksbury, supra, 15 Cal.3d at pp. 960-961; contrast People v. Rios (1985) 163 Cal.App.3d 852, 869 (Rios) [witness was accomplice as a matter of law where he testified to plotting with others to burglarize a specific residence, stood watch outside the residence during the burglary and testified under grant of immunity].)
We also reject Grant's alternate contention that the trial court's failure to utilize CALCRIM No. 335 violated his constitutional rights. "The accomplice testimony rule is not constitutionally based," but rather is a creature of statute. (In re Mitchell P. (1978) 22 Cal.3d 946, 949.) Indeed, "[f]ederal courts have rejected the rule, holding 'a conviction may be based on the uncorroborated testimony of an accomplice . . . .' " (Ibid.; see also People v. Frye (1998) 18 Cal.4th 894, 968 [rejecting constitutional challenge to instructions regarding § 1111].) Grant argues that once a state adopts an accomplice corroboration rule, as California has, it creates a "commensurate federal constitutional right" to apply the rule properly. As we have concluded that the trial court properly applied the California rule, however, this contention too is meritless.
Grant cites Cool v. United States (1972) 409 U.S. 100, 103, a case in which the United States Supreme Court held that an instruction that permitted the jury to consider the testimony of an accomplice that was favorable to the defense only if it found that testimony to be true beyond a reasonable doubt, violated the defendant's constitutional rights. Here, where the testimony was offered by the prosecution, Cool has no application and is inapposite.
II
The Evidence Is Sufficient to Support Grant's Murder Conviction
Citing section 1111, which requires that an accomplice's testimony be corroborated to support a conviction, Grant contends that his murder conviction must be reversed because, placing aside Laymon's testimony, there is insufficient evidence to support the conviction.
Grant's argument depends on an assumption that "Laymon was an accomplice as a matter of law," a contention we reject in part I, ante. Grant does not argue that even considering Laymon's testimony, his conviction is not supported by sufficient evidence.
Section 1111 provides that "[a] conviction can not 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 . . . ." (§ 1111.) As already noted, the section defines "accomplice" as a person who is "liable to prosecution for the identical offense charged against the defendant." (Ibid.) Corroborating evidence is insufficient under this statute if it merely " 'connect[s] a defendant with the accomplice or other persons participating in the crime' "; the requisite corroboration " 'must tend to connect a defendant with the crime itself, and not simply with its perpetrators.' " (People v. Robinson (1964) 61 Cal.2d 373, 400 [corroboration is " ' "insufficient where it merely casts a grave suspicion upon the accused" ' "].)
The requirement of corroboration, however, applies only if the witness in question is, in fact, an accomplice. (See CALCRIM No. 334 ["If you decide that a [witness] was not an accomplice, then supporting evidence is not required and you should evaluate his or her [testimony] as you would that of any other witness"].) Here, as discussed in the preceding section, the evidence before the trial court was insufficient to deem Laymon an accomplice as a matter of law. Consequently, the determination of whether he was an accomplice, and thus whether corroboration was required, was properly left to the jury. In the instant case, then, the jury either determined that Laymon was not an accomplice, and thus no corroboration was required; or that Laymon was an accomplice and there was sufficient corroboration to support his testimony.
Grant also criticizes CALCRIM No. 334's discussion of the nature of the corroboration required, arguing that CALJIC No. 3.12 provided a better discussion of this subject. We do not find any error. CALCRIM No. 334 states that the requisite corroboration must be such that it "tends to connect the defendant to the commission of the crime" and that "it is not enough" if that evidence "merely shows that a crime was committed or the circumstances of its commission[;] [it] must tend to connect the defendant to the commission of the crime." This is almost identical to the language from CALJIC No. 3.12, which similarly states that the jury must find corroboration that "tends to connect defendant with the commission of the crime." Consequently, we do not believe the trial court erred by relying on the CALCRIM instruction rather than the CALJIC instruction. Further, even if there was error, it would not be prejudicial as we would be required, in any event, to presume the jury determined Laymon was not an accomplice.
As we have no way of knowing which conclusion the jury reached, even if Grant were correct that the jury could not properly conclude that Laymon's testimony was sufficiently corroborated, "as a reviewing court, we are bound to presume in favor of affirming the judgment that the jury found that [Laymon] was not an accomplice," and consequently corroboration of his testimony was not required. (People v. Santo (1954) 43 Cal.2d 319, 326-327.) This implicit finding is binding on appeal and requires that we affirm the verdict, if — as here — the whole of the record (including Laymon's testimony) reveals substantial evidence to support the conviction. (Ibid.; see also Tewksbury, supra, 15 Cal.3d at p. 962 [rejecting challenge to sufficiency of the evidence because, of the two witnesses who provided evidence of defendant's guilt, one could have been deemed by the jury not to have been an accomplice, and appellate court must "resolve all inferences and inconsistencies in favor of the jury's implied finding that she was not an accomplice"]; People v. Perez (1973) 9 Cal.3d 651, 657, 659 [rejecting challenge to sufficiency of the evidence because "the trier of fact could reasonably have inferred that [the purported accomplice] was not an accomplice and that his testimony therefore constituted a sufficient basis for finding defendant guilty"]; People v. Platnick (1958) 161 Cal.App.2d 313, 320 ["Since it could be inferred . . . that [the prosecution witnesses] were not accomplices, as a matter of law the question of whether they were was one for the duly constituted arbiter of the facts, and it will be presumed in favor of affirming the judgment that the trier of fact found that they were not accomplices"]; cf. People v. Scott (1978) 21 Cal.3d 284, 296 (Scott) [even the "uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable"].)
The cases Grant relies on are distinguishable as, in one, the court found that the prosecution witness was an accomplice as a matter of law (Rios, supra, 163 Cal.App.3d at p. 869), and the other concerned the question of whether instructional error was harmless, not, as here, the sufficiency of the evidence (People v. Houtman (1956) 138 Cal.App.2d 448, 458).
III
The Trial Court Did Not Omit the Intended Instructions
Grant contends that the trial court erroneously omitted a number of pattern instructions that it had agreed to give to the jury, specifically, CALCRIM Nos. 417-418, 460, 500, 540A, 1600 and 3149. A revised transcript submitted by the court reporter indicates, however, that the allegedly omitted instructions were given. In addition, a complete set of the intended instructions were provided to the jury in written form. Consequently, there was no error.
As the parties initially disagreed as to the accuracy of the record, we granted Grant's unopposed motion to order a settled statement of the record. A prompt hearing was held in the superior court. At the conclusion of the hearing, the parties stipulated to the accuracy of the revised transcript containing the allegedly omitted instructions.
IV
The Trial Court Did Not Err by Instructing the Jury on Conspiracy
Grant contends that the trial court erred by giving the jury an instruction on conspiracy because the prosecution was relying primarily on a felony-murder theory and the conspiracy instruction was "unnecessary, confusing, and unfair." We find no error.
The trial court instructed the jury that it could find Grant to be member of a conspiracy if the prosecution established that he "intended to agree and did agree with [Rochelle] to commit robbery." (See CALCRIM No. 416.) The court explained that a "member of a conspiracy is," then, "criminally responsible for any act of any member of the conspiracy if that act is done to further the conspiracy and that act is the natural and probable consequence of the common plan or design of the conspiracy." (See CALCRIM No. 417.) The court also instructed the jury on the theory of felony murder, which allows for a conviction of first degree murder based on the specific intent to commit certain underlying felonies (in this case, "an attempt to commit robbery") as opposed to the intent to commit murder. (See CALCRIM No. 540A.)
Grant contends that giving both of these instructions in the instant case was error, but cites no case law or other authority that supports this contention. Rather, Grant contends that the two instructions likely confused the jurors and violated generic unanimity principles. We find this argument unpersuasive.
As quoted above, the language of the pattern instructions themselves constitutes a correct statement of the applicable law and is thus not objectionable. Further, the instructions in the context of this case are not so inherently confusing as to constitute error. The conspiracy instruction informed the jury it could find Grant criminally responsible for the acts of Rochelle (his alleged coconspirator) under certain circumstances, even if Grant himself did not commit those acts. The felony-murder instruction further informed the jury that Grant could be liable for Dawson's murder even if Grant's sole intent was to commit robbery, not murder. The giving of these separate instructions, both of which were legally valid and could potentially apply based on the jury's determination of the facts of the case, were not inconsistent or otherwise confusing. (See, e.g., People v. Manson (1976) 61 Cal.App.3d 102, 209-210 (Manson) [concluding that "the felony-murder rule was equally applicable to each appellant" because "[i]t is axiomatic that each member of a conspiracy is liable for all acts of his co-conspirators, intended, unintended, or even actually forbidden, provided only that such acts be in furtherance of the common purpose of the conspiracy"]; People v. Schader (1965) 62 Cal.2d 716, 731 [explaining circumstances under which "[a] killing committed during a conspiracy to commit robbery" can constitute felony murder], overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478; People v. Hutchinson (1967) 254 Cal.App.2d 32, 37 [finding evidence sufficient to support felony-murder conviction where victim was "killed during a robbery which was the culmination of a conspiracy to commit robbery"].) There is certainly nothing about these instructions, alone or in tandem, that would be sufficiently confusing to the jury to warrant reversal. (See People v. Smithey (1999) 20 Cal.4th 936, 963 [test of whether an allegedly confusing or ambiguous instruction warrants reversal is "whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction"].) Further, it is clear from the jury's finding that Grant personally discharged a firearm, causing Dawson's death, that there was no ambiguity or confusion regarding the jurors' view of the theory by which Grant was guilty: the jury believed Grant personally shot Dawson (i.e., felony murder), and thus had no cause to rely on the principles of conspiracy liability for their verdict.
In his opening brief, Grant argues that the firearm use finding must be ignored because the jury was not instructed with respect to that finding. As we noted in part III, ante, Grant's initial contentions with respect to the omission of jury instructions were based on an incomplete transcription of the record. The jury was, in fact, instructed on the firearm enhancement, and thus there is no reason to discount its finding.
Grant's contention that the trial court erred by instructing on conspiracy because the prosecutor was proceeding primarily on a felony-murder theory is also meritless. Whether or not the prosecutor was explicitly proceeding on a conspiracy theory, "[t]he trier of fact is not limited by any hierarchy of theories selected by the prosecution." (Manson, supra, 61 Cal.App.3d at p. 207.) Thus, the trial court had the discretion, if not the duty, to instruct on all theories of liability that were supported by substantial evidence. (Ibid.)
The instructions also do not implicate the requirement that a jury's verdict must be unanimous. A unanimity issue (requiring instruction) arises when "there is a risk the jury may divide on two discrete crimes." (People v. Russo (2001) 25 Cal.4th 1124, 1135 (Russo).) A unanimity instruction is not required, however, when "the evidence merely presents the possibility the jury may divide, or be uncertain, as to the exact way the defendant is guilty of a single discrete crime." (Ibid.)
In the instant case, there was a "single discrete crime" — the murder of Dawson. (Russo, supra, 25 Cal.4th at p. 1135.) The fact that the jury theoretically may have divided as to the "exact way" that Grant was guilty of the crime — either through his conspiracy with Rochelle or by himself pulling the trigger — did not require a unanimity instruction. (Ibid.) Of course, given the jury's finding on the firearm allegation, there was no division as to the theory of liability in any event.
Grant includes various quotations from inapposite case law on the issue of the notice required under due process principles. As Grant fails to explain how these principles apply here, and we fail to see any failure of notice based on the court's instructions, we consider the contention forfeited. (See People v. Williams (1997) 16 Cal.4th 153, 215 [contentions " 'perfunctorily asserted without argument in support' " are not properly before appellate court].) We also find no merit in Grant's implicit suggestion that the trial court erred in determining when in the course of the trial to give the challenged instructions. (See § 1093, subd. (f) [granting court discretion "[a]t the beginning of the trial or from time to time during the trial, and without any request from either party," to "give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case"].)
V
The Trial Court Did Not Err by Failing to Give a Manslaughter Instruction
Grant contends that the trial court erred by failing to give an involuntary manslaughter instruction as a lesser included offense to murder. We disagree.
"Manslaughter, both voluntary and involuntary, is a lesser included offense of murder." (People v. Lewis (2001) 25 Cal.4th 610, 645.) A trial court is required to instruct the jury, "sua sponte, on all theories of a lesser included offense which find substantial support in the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 162.) No such instruction is required, however, "on theories that have no such evidentiary support." (Ibid.) Consequently, an instruction on a lesser included offense is not required "when the evidence shows that the defendant is either guilty of the crime charged or not guilty of any crime" (People v. Barton (1995) 12 Cal.4th 186, 196, fn. 5), and no instruction is required when "there is no proof, other than an unexplainable rejection of the prosecution's evidence, that the offense was less than that charged." (People v. Kraft (2000) 23 Cal.4th 978, 1063.) "Speculation is insufficient to require the giving of an instruction on a lesser included offense." (People v. Mendoza (2000) 24 Cal.4th 130, 174 (Mendoza).)
In the instant case, an involuntary manslaughter instruction was not warranted as there was no evidence to support a conclusion that the offense was manslaughter rather than murder.
There were no eyewitnesses to the shooting that resulted in Dawson's death. The primary evidence as to what occurred was Laymon's testimony that: Grant and Rochelle planned to rob an Ace parking lot attendant; that Rochelle said he could get a gun; that cell phone records indicated that both Rochelle and Grant were communicating and in the downtown area at the time of the murder; that Rochelle departed the Ace office parking lot just prior to the presumed shot that killed Dawson; and that, after the murder, Grant explained the killing by saying Dawson "did not want to give up the money." The jury could either credit the testimony and conclude that Grant was guilty of murdering Dawson in a botched robbery attempt, or not credit it and acquit. There was, however, no substantial evidence to support a conclusion that Grant was guilty of involuntary manslaughter, i.e., that the killing occurred "in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b) [defining involuntary manslaughter].) Such a conclusion would be based on sheer speculation, and "[s]peculation is insufficient to require the giving of an instruction on a lesser included offense." (Mendoza, supra, 24 Cal.4th at p. 174.)
Grant does not highlight any evidence that would have supported a conclusion that he was guilty only of involuntary manslaughter. Rather, he points out that the trial court gave Rochelle's jury (each codefendant had a separate jury) an instruction on that offense. The court's instructions to the Rochelle jury, however, are not relevant to the question of whether Grant's jury was properly instructed. The trial court may have erred in instructing the Rochelle jury, may have changed its view as to the propriety of a particular instruction based on the argument of Rochelle's counsel, or may have considered differences in the evidence against Rochelle to warrant different instructions. Whatever the reason for the distinction in the respective instructions, the question before us remains unchanged. With respect to the evidence against Grant, there was no substantial evidence that he was guilty only of committing involuntary manslaughter, and consequently an instruction on that offense was not required.
VI
Substantial Evidence Supports the Jury's Firearm Use Finding
Grant contends that the evidence was insufficient to support the jury's finding that he personally and intentionally discharged a firearm in the commission of the murder. We disagree. While the question is a close one, there was sufficient evidence for the jury to find not only that Grant was guilty of murder, but that he personally discharged a firearm in committing the offense.
In evaluating a challenge to the evidence supporting a jury's verdict, "we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Snow (2003) 30 Cal.4th 43, 66.) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
In performing our review of the record, we are limited by the fact that it " ' "is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends." ' " (People v. Smith (2005) 37 Cal.4th 733, 739.) We are, thus, not permitted "to reweigh the evidence or redetermine issues of credibility" (People v. Martinez (2003) 113 Cal.App.4th 400, 412), and even the "uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable." (Scott, supra, 21 Cal.3d at p. 296.)
In the instant case, the evidence viewed in the light most favorable to the verdict supported a reasonable conclusion that Grant and Rochelle participated in an attempted robbery that left Dawson dead, and that Grant was the shooter. With respect to this last point, the prosecution theory was that Rochelle drove Grant to the parking lot where Dawson was killed, and dropped him off so that Grant would commit the robbery. This theory was principally supported by Laymon's testimony that he observed Dawson walking toward the office, and Rochelle driving out of the parking lot alone, seconds before Laymon (and other witnesses) heard what sounded like a gunshot. If the jury accepted this portion of Laymon's testimony, Rochelle could not have pulled the trigger, leaving Grant as the only person involved in the conspiracy to rob Ace who could have done so. Further supporting this inference, Laymon testified that when confronted with the accusation that he (Grant) had killed Dawson, Grant indicated that he knew what transpired in the Ace office parking lot during the robbery attempt — that Dawson refused to give up any money and was thus shot — something that, according to Laymon's testimony, Rochelle could not have known firsthand. Finally, the prosecution evidence placed Grant in the general vicinity of the murder through cell phone records, and established that he appeared for his shift at Qualcomm unusually late: approximately an hour and a half after Dawson was shot.
The firearm enhancement found true by the jury alleged that Grant "personally and intentionally discharge[d] a firearm and proximately cause[d] great bodily injury . . . or death, to any person other than an accomplice." (§ 12022.53, subd. (d); see also CALCRIM No. 3149.) This enhancement, which requires personal use of a firearm, does not allow for vicarious liability. (See People v. Walker (1976) 18 Cal.3d 232, 242; People v. Garcia (2002) 28 Cal.4th 1166, 1174.)
In a police interview, also played for the jury, Laymon elaborated that Grant told him that Dawson had the money "in his pants" but would not give it over. (See People v. Cannady (1972) 8 Cal.3d 379, 387 [statement received into evidence as a prior consistent statement may be used as substantive evidence].)
We recognize that this evidence is entirely circumstantial and far from overwhelming, but whether or not we would have come to the same conclusion as the jury, the evidence, as described above, is sufficient to support the jury's verdict on appeal. (People v. Abilez (2007) 41 Cal.4th 472, 504 [" ' " 'Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt' " ' "].) It is, of course, " ' "the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt." ' " (Ibid.) Consequently, we defer, as we must, to the jury's factual conclusions and reject Grant's contention that the evidence was insufficient to support their findings. (Scott, supra, 21 Cal.3d at p. 296 [even the "uncorroborated testimony of a single witness is sufficient to sustain a conviction"].)
VII
The Trial Court Did Not Abuse Its Discretion in Excluding Grant's Out-of-court Statement as Hearsay
Grant contends that the trial court erred by ruling that an out-of-court statement made by Grant to police was inadmissible hearsay. We disagree.
During the trial, Grant moved to introduce evidence that when police suggested (falsely) to Grant that they had a videotape of the crime, Grant "made an indication that he was not concerned." Grant asked that this evidence "be admitted under [the] hearsay exception [for] state of mind," and argued that it was "relevant to show a lack of consciousness of guilt." The court ruled that the statement was inadmissible hearsay.
Grant later renewed his request, seeking to admit his "attitude and that he was unconcerned, not necessarily his statement, but [that he] seemed to be unconcerned by his demeanor." The court again rejected the request, stating that it was "still hearsay." The court added that because anybody, whether guilty or innocent, could be expected to try to appear unconcerned in the presence of those investigating a crime, the evidence also was unreliably "self-serving."
The trial court did not abuse its discretion. Even if Grant's statement or expressive conduct indicating that he was unconcerned about videotape evidence qualified under the hearsay exception as evidencing his "state of mind," the trial court acted within its discretion to exclude the evidence, as it did here, on the grounds of trustworthiness. (See Evid. Code, § 1252.)
Under the Evidence Code, "evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated" constitutes hearsay and, absent an applicable hearsay exception, is inadmissible. (Evid. Code, § 1200, subds. (a), (b).) Hearsay includes both oral statements as well as "nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression." (Evid. Code, § 225.)
There is an exception to the hearsay rule under Evidence Code section 1250 for "a statement of the declarant's then existing state of mind" (ibid.); the exception will not apply, however, "if the statement was made under circumstances such as to indicate its lack of trustworthiness." (Evid. Code, § 1252.) The trial court has broad discretion in determining whether evidence is admissible under a hearsay exception, such as " 'the state of mind exception to the hearsay rule.' " (People v. Escobar (2000) 82 Cal.App.4th 1085, 1103, quoting People v. Ortiz (1995) 38 Cal.App.4th 377, 386.)
In analyzing Grant's contention, we find guidance in our Supreme Court's decision on analogous facts in People v. Edwards (1991) 54 Cal.3d 787 (Edwards). In that case, the high court held that the trial court did not abuse its discretion in declining to admit, as untrustworthy under Evidence Code section 1252, a defendant's postcrime statement in the context of a police investigation. (Edwards, at p. 820.) The court emphasized that a defendant " 'may not introduce hearsay evidence for the purpose of testifying while avoiding cross-examination.' " (Ibid.) To avoid such a circumstance, Evidence Code section 1252 requires that "statements must be made in a natural manner, and not under circumstances of suspicion, so that they carry the probability of trustworthiness. Such declarations are admissible only when they are ' "made at a time when there was no motive to deceive." ' " (Edwards, at p. 820.)
As in Edwards, Grant's out-of-court statement to police officers in the instant case, as well as any "nonverbal conduct" similarly indicating a lack of concern (Evid. Code, § 225), did not have sufficient indicia of trustworthiness to require admission under Evidence Code section 1252. Instead, Grant made the proffered "statements" at a time when he was under suspicion for murder. Consequently, Grant "had a compelling motive to deceive and seek to exonerate himself from, or at least to minimize his responsibility for, the shooting," and "[t]here was 'ample ground to suspect defendant's motives and sincerity' when he made the statements." (Edwards, supra, 54 Cal.3d at p. 820.) "The need for cross-examination is especially strong in this situation, and fully warrants exclusion of the hearsay evidence." (Ibid.)
In sum, as in Edwards, the proffered evidence did not contain sufficient indicia of trustworthiness to mandate its admission under Evidence Code section 1252, and thus the trial court acted within its discretion in excluding it.
We also reject Grant's contention that even if the statements were properly excluded under the Evidence Code, the trial court was required to admit them by the state or federal Constitution. There is no constitutional requirement to admit unreliable hearsay. (Edwards, supra, 54 Cal.3d at p. 820.) Grant's additional argument that California's constitutional "truth-in-evidence provision" mandated admission of the statement fails because that provision specifically states that it does not "affect any existing statutory rule of evidence relating to privilege or hearsay." (Cal. Const., art. I, § 28, subd. (d).)
VIII
The Trial Court Did Not Abuse Its Discretion in Admitting Ammunition Found in Grant's Apartment
Grant argues that the trial court abused its discretion by admitting evidence that the police found ammunition when they searched his apartment after Dawson's murder. We disagree.
Prior to trial, Grant moved under Evidence Code section 352 to exclude evidence that a box of .38 caliber ammunition was found in a bedroom closet of one of Grant's roommates during a search of Grant's apartment. Grant argued that the probative value of the evidence was "slight" because the ammunition was "not consistent with the ammunition that was recovered from the victim," and entailed a high risk of prejudice because the name of the ammunition, like that used to kill Dawson, included the "phrase 38."
At a hearing on the motion, the prosecutor explained that he did not intend to argue that the bullet that killed Dawson came from the box of ammunition found in Grant's apartment, but rather that the "presence of the ammunition in Grant's apartment suggests that [Grant] possessed a .38 caliber pistol." Defense counsel responded that the prosecutor's conclusion did not follow because the ammunition found in Grant's apartment and that used to kill Dawson were "not interchangeable" and are "not used in the same sort of weapon." The prosecutor disagreed, stating that ".38 caliber [ammunition] is .38 caliber [ammunition], if you put it in a pistol." In light of the prosecutor's proffer, the trial court ruled that the ammunition found in Grant's apartment met the threshold for relevance and was not unduly prejudicial. The trial court noted that if the defense had evidence that would undermine the prosecutor's contentions on this point, it was free to present that evidence to the jury.
At trial, a forensic firearm expert testified that the bullet that killed Dawson was a .38 or .357 caliber bullet, and was most likely fired from a .38 or .357 caliber revolver. The expert also explained that the full box of ammunition found in Grant's apartment, labeled "50 centerfire revolver and pistol cartridges," was .38 Super Auto Plus P ammunition. The expert acknowledged that Super Auto ammunition was not the same as the type of ammunition that killed Dawson. On cross-examination, the expert also conceded that the type of bullets found in Grant's apartment and the type used to kill Dawson "may not be interchangeable," but stated that whether they could be fired from the same gun would depend on the gun.
On appeal, Grant contends that the ammunition was irrelevant because it was not shown to be "the type of bullet that killed Dawson" and was unduly prejudicial under Evidence Code section 352 because it raised a "specter of bad character."
Only relevant evidence is admissible at trial. (Evid. Code, § 350.) " 'Relevant evidence' " is evidence that has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) In addition, even where evidence is relevant, the trial court "may exclude [that] evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) In determining the relevance of evidence and whether it should be excluded as unduly prejudicial, confusing or misleading, the trial court is vested with broad discretion, and its rulings will be reversed on appeal only where an abuse of that discretion is demonstrated. (People v. Harris (2005) 37 Cal.4th 310, 337; People v. Jordon (1986) 42 Cal.3d 308, 316.)
We find no abuse of discretion in the instant case. At the time of the trial court's in limine ruling, the prosecution proffered that the ammunition recovered from Grant's apartment and that used in Dawson's killing both could be fired from a .38 caliber gun. Consequently, the ammunition found in Grant's apartment had a "tendency in reason" to support an inference that Grant had access to a gun like that used to kill Dawson, satisfying the relatively lenient standard of relevance. (Evid. Code, § 210.) Further there was little indication that the evidence would be particularly prejudicial under Evidence Code section 352, as the prosecutor stated that there would be no suggestion that the ammunition from the apartment was actually used in the killing, and a box of ammunition in a roommate's closet is not the type of evidence that would be likely to engender hostility or prejudice among the jurors toward Grant. (People v. Crittenden (1994) 9 Cal.4th 83, 134 [explaining evidence that should be excluded under Evid. Code, § 352 is that which "uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues"].)
The prosecution's evidence at trial turned out to be somewhat less definitive than had been proffered during the in limine hearing. Under cross-examination, the prosecution expert was unable to state definitively that the same gun could fire both the bullet that killed Dawson and the ammunition found in Grant's apartment. Nevertheless, the expert also declined to rule out the possibility, stating only that such a conclusion would require further testing. As a result, there was some ambiguity as to whether the ammunition found in Grant's apartment was, in fact, consistent with a firearm that could have killed Dawson. We believe, however, that the trial court acted within its discretion to consider the prosecution expert's ambivalence simply to go to the weight of the inference suggested by the prosecution rather than the relevance of the evidence itself. The trial court was also within its discretion in declining to rule that the evidence was so unduly prejudicial that it should have been excluded.
In addition, to the extent that Grant is relying on the divergence between the prosecution expert's testimony and the prosecutor's earlier proffer in challenging the trial court's original in limine ruling, he has failed to properly preserve that contention for appeal. "In limine rulings are not binding . . ." (People v. Mattson (1990) 50 Cal.3d 826, 850) and are "subject to reconsideration upon full information at trial." (People v. Turner (1990) 50 Cal.3d 668, 708; People v. Jennings (1988) 46 Cal.3d 963, 975, fn. 3 [party should renew in limine motion during trial because "until the evidence is actually offered, and the court is aware of its relevance in context . . ., the court cannot intelligently rule on admissibility"]; People v. Yarbrough (1991) 227 Cal.App.3d 1650, 1655 ["in limine rulings are not binding because the trial court has the power to reconsider, modify or set aside its order at any time prior to the submission of the cause"].)
Grant's original objection during the in limine proceedings was raised prior to the prosecution expert's testimony, and Grant did not renew his objection during, or after, the expert's testimony. While Grant purported to have a continuing objection to the admission of the ammunition, this objection, at most, relieved him from having to object when the ammunition was actually offered into evidence in order to preserve the grounds of his original objection for appeal. If, during trial, Grant intended to raise the prosecution expert's ambivalence as a new ground for his objection, he was required to inform the trial court of this fact. Here, Grant never raised the expert's testimony as the basis for exclusion of the ammunition, and consequently any argument along those lines is forfeited for purposes of appeal. (People v. Partida (2005) 37 Cal.4th 428, 438 ["to the extent defendant asserts a different theory for exclusion than he asserted at trial, that assertion is not cognizable" on appeal].)
IX
Reversal Is Not Required Based on Cumulative Errors at Trial
Grant contends that the cumulative effect of the errors at trial requires reversal of his conviction. (See People v. Holt (1984) 37 Cal.3d 436, 459 [reversing conviction based on "cumulative effect" of trial errors].) We disagree. Our analysis of Grant's challenges on appeal reveals no trial court error.
DISPOSITION
Affirmed.
WE CONCUR McINTYRE, Acting P.J.,O'ROURKE, J.
Grant also contends that our Supreme Court's section 1111 analysis is "unpersuasive" in this area and should be "reconsider[ed]." However, even if we agreed with Grant's conclusion, we are bound by the rulings of our Supreme Court and have no authority to reconsider them. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 457.)