Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. SS052430
ELIA, J.Following a joint jury trial on charges of murder and robbery, defendant Christopher Griffith was convicted of voluntary manslaughter and codefendant Harvey Blackburn was completely acquitted. The prosecution's theory, impliedly rejected by the jury, had been that the killing had occurred during a botched robbery of the deceased, Horacio Ramos Ramirez ("Ramos"), who was a drug dealer. Defendant Griffith had claimed self-defense. Defendant Griffith appeals. (Pen. Code, § 1237.)
All further statutory references are to the Penal Code unless otherwise stated.
Defendant Griffith now contends the trial court committed constitutional error by refusing to grant a continuance of trial, by issuing an order allowing the defense expert to examine and test the government's clothing evidence only while under observation by a prosecution representative, by admitting defendant's testimony regarding his tattoo "Thug for Life, " and by allegedly engaging in judicial misconduct. We have carefully examined these contentions and affirm.
A. Procedural History
By information filed December 6, 2005, defendant Griffith was charged, along with codefendant Blackburn, with first degree murder of Ramos (count one) (§ 187, subd. (a)), second degree robbery of Antonio Sandoval (count two) (§ 211), and second degree robbery of Ramos (count three) (§ 211). The information additionally alleged special circumstances with regard to each charged offense, including the allegation with respect to count one that defendant Griffith had committed the murder while "engaged in the crime of robbery" (§ 190.2, subd. (a)(17)). Defendant Griffith was also charged with two prior prison terms (§ 667.5, subd. (b)).
The jury found defendant Griffith not guilty of first degree murder (§§ 187, subd. (a), 189), not guilty of the lesser included offense of second degree murder (§§ 187, subd. (a), 189), not guilty of either robbery (§ 211), not guilty of a lesser included offense of attempted second degree robbery (§§ 211, 664), and not guilty of a lesser included offense of grand theft from a person (§ 487, subd. (c)). The jury found him guilty of voluntary manslaughter (§ 193, subd. (a)) and found he had intentionally and personally used a firearm in committing that offense (§ 12022.5).
The abstract of judgment incorrectly indicates that the enhancement allegation pursuant to section 12022.53, subdivision (d), was found true. This error should be corrected by the trial court.
Following trial, the information was amended to reflect that defendant Griffith had served only one prior prison term. He admitted the prior prison term allegation. (§ 667.5, subd. (b).)
Defendant brought a motion for a new trial, which was denied. As to sentencing, the court stayed the section 667.5, subdivision (b), enhancement and sentenced defendant Griffith to a total prison term of 21 years, consisting of the upper term of 11 years for voluntary manslaughter (§ 193, subd. (a)) plus a 10-year consecutive enhancement for personal use of a firearm (§ 12022.5).
B. Evidence
1. The Prosecution's Case
a. The Shooting
On August 21, 2005, Angela Frias was living in an apartment complex at 749 East Romie Lane in the City of Salinas. She lived in apartment 14 and her friend Yvonne lived in apartment 24.
At that time, defendant Griffith was her boyfriend; they had been seeing each other for three months, and he had a key to her apartment but was not living there. Frias knew codefendant Blackburn through defendant but knew him as "Crazy." Blackburn and defendant were cousins.
On August 21, 2005, Frias saw defendant at her apartment but then she left. The methamphetamine later found in her apartment did not belong to Frias and had not been there at the time she left the apartment.
Defendant Griffith had access to Frias's cell phone. On August 21, 2005, four telephone calls were made from Frias's cell phone number to Ramos's cell phone number. She did not recognize Ramos's cell phone number, which was listed on cell phone records, and she had not called that number on August 21, 2005.
Antonio Figeroa Sandoval (Sandoval), who testified through an interpreter, and Ramos were both from Michoacan. Sandoval had known Ramos since he was seven or eight years old.
On August 21, 2005, Sandoval went with Ramos in a green Jeep Cherokee to a Salinas apartment. He indicated that codefendant Blackburn was outside on the stairs when they arrived. A female, who was holding a baby, opened the door of the apartment and then left. Sandoval, Ramos, and codefendant Blackburn entered the apartment; defendant Griffith was already inside. Sandoval remained in the living room with Blackburn while defendant Griffith and Ramos went into another room.
Almost immediately, Sandoval heard loud yelling and arguing and gunshots coming from the other room. There were also noises that sounded like someone being thrown about or pushed into walls and things being knocked over. Sandoval heard Ramos screaming for help and yelling for him to call the police but Sandoval could do nothing because he had no phone and because codefendant Blackburn had grabbed him and covered his mouth and was holding him down. At trial, Sandoval conceded that it was after watching the video of his 2005 police interview, he "remembered for the first time that Ramos had screamed or shouted out to" him. Sandoval stated that codefendant Blackburn hit him in the ear and ribs.
When Ramos entered the living room, Sandoval saw that Ramos was hurt and he had gunshot wounds in the stomach. Ramos was "walking like very loose." Griffith, whose shirt was torn and who looked like he had been in a fight, had a gun in his hand. He was following behind Ramos. Griffith was hitting Ramos on the head and body with the butt of the gun. Ramos told Sandoval to "take off" because they were going to also kill Sandoval but Sandoval was prevented from leaving.
Ramos was shot once in the living room. He immediately fell hard, face down, on the rug; he looked "real dead" and did not move. Defendant Griffith pointed the gun at Sandoval's head, and said something in English that Sandoval did not understand. Sandoval inconsistently testified that he did not see defendant Griffith do anything to Ramos before leaving the apartment and that defendant Griffith and codefendant Blackburn searched Ramos after he was dead. Sandoval claimed that defendant and Blackburn searched him and Blackburn took money from him.
According to Sandoval, defendant Griffith, wrapped in a towel, left the apartment through the front door. Sandoval saw Ramos's cell phone and a chain, which Ramos had been wearing, on the floor to the side of Ramos. When someone knocked at the door, Blackburn looked out the window, saw police, and left the apartment through a back window. Sandoval opened the door for the police.
At trial, Sandoval recalled talking with officers after the incident and lying. He admitted multiple times at trial that, during the investigation, he had repeatedly lied to Officer Gomez in numerous respects with regard to the circumstances leading up to and surrounding the shooting. He admitted he had lied when he told a police officer that Ramos had already been shot when he arrived on the scene. He testified that actually he had about $200 to $300 in his pocket during the incident but admitted that he had told Officer Gomez that he had only about $80.
Sandoval denied that he had possessed illegal drugs aside from marijuana during the past 24 months but later admitted that during that period he had been arrested in Santa Clara County on a felony drug charge involving "ice." He also admitted that he faced criminal drug charges of possessing "ice" in Fresno County. Sandoval indicated that it was still his testimony that he did not know what "ice" was. Later, upon further cross-examination, Sandoval admitted that he had lied to the jury when he said that he did not know what "ice" was. On redirect, he indicated that he did not understand the meaning of the word "jury."
Sandoval admitted he had received a total of about $10,325 for food and lodging from the County of Monterey since this incident.
The police responded to the East Romie Lane apartment complex following two calls. A 9-1-1 call came at 17:35 and a second call came at 17:41. The first police unit arrived at 17:41.
At approximately 5:30 p.m. on August 21, 2005, the neighbor in apartment 15 had made a 9-1-1 call to police after hearing sounds and voices coming from the apartment directly below, where a woman named Angela and two children lived. She became concerned about the children's welfare. She heard noises that sounded like something bumping into or hitting against walls, shuffling, and falling, she heard a man crying and pleading in Spanish for someone not to kill him, and she heard gunshots.
On August 21, 2005, another neighbor, who could see apartment 14's back bedroom window from inside his apartment, heard three muffled bangs. He went outside to investigate and saw codefendant Blackburn leaping out of apartment 14's window and followed him. Blackburn had been wearing a blue sweat suit and walking fast and the neighbor lost sight of Blackburn. The police arrived within seconds.
About two hours later, this neighbor identified Blackburn, who had changed clothes, for police. This neighbor had grown up in the neighborhood with Griffith and Blackburn and he knew defendant Griffith as "Holly" and codefendant Blackburn as "Crazy."
b. Investigation
On August 21, 2005, Detective Kenneth Wynne, an officer with the Salinas Police Department, was dispatched to 749 East Romie Lane, apartment 14, to assist with a homicide investigation. Detective Wynne saw firefighters and paramedics around Ramos, who had blood on his forehead. Ramos was pronounced deceased. His wallet contained $212.
Detective Wynne walked through the apartment shortly after midnight. He noticed caved-in sheet rock with a bullet entrance hole in the bedroom wall and disturbed sheet rock in the living room's back wall where a bullet had exited. Several items of evidence were collected from the living room, including a spent projectile, a brass casing, a silver flip cell phone, and a gold chain.
In the bedroom, expended shell casings were found on a dresser and in the closet area. A chair was found tipped over in the bedroom. "Just to the left of the base of the chair there was a plastic baggy containing a white cloudy substance...." The substance was tested and methamphetamine was determined to be present. The substance weighed 27.75, close to an ounce. The amount was consistent with sales; the street value of an ounce of methamphetamine was about $600 to $900. A slang term for methamphetamine is "ice."
A medallion or charm of Jesus Malverde was found on the floor of the bedroom. Malverde is considered by some people to be the patron saint that protects drug traffickers from police. Sandoval had seen Ramos wearing the medallion on a chain around his neck.
On August 21, 2005, Kyle Alleman, a detective with the Salinas Police Department, was dispatched to the East Romie Lane apartments to assist with the homicide investigation. His responsibility was to ensure nobody entered apartment 24, where possible suspects were located. He saw defendant Griffith and codefendant Blackburn eventually emerge from apartment 24 after being called out by the SWAT team. Apartment 24 was directly above a carport; stairs in the carport area went up to apartment 24. At about 20 minutes after midnight, detective Alleman went down those stairs and started looking in the carport area. Behind a little plywood wall deep into the eastern most carport, he saw a firearm wrapped in a blanket, which Frias identified at trial as belonging to her and having been in her apartment. Upon further examination, it was determined that one live cartridge was in the gun's chamber and at least one cartridge was in the magazine, which meant it was ready to fire.
Detective Henry Gomez, a police sergeant with the Salinas Police, responded to the homicide scene at 749 East Romie Lane on August 21, 2005. He contacted Sandoval; he was very distraught and upset and was crying and was bandaged around his head.
Detective Gomez interviewed both Sandoval and Blackburn after the incident and both of them lied to him. The bulk of his interview with Sandoval occurred on August 21, 2005. Sandoval claimed money had been taken from him. Specifically, $81, consisting of eight $10 bills and one $1 bill, had been taken from him. While being interviewed on August 21, 2005, Sandoval also said, "I hardly have any money" and "I don't got my money with me." When their property had been booked into evidence, defendant Griffith had eight $10 bills and nine $5 bills, a total of $125, and codefendant Blackburn had five $5 bills and five $1 bills.
Detective Gomez confirmed that it is not uncommon for a person with Hispanic origin to have two different surnames, the mother's maiden name and the father's name, and many times the father's name is said before the mother's maiden name. He confirmed that Sandoval sometimes is identified as Antonio Sandoval Figeroa.
Detective Jackie Bohn of the Salinas Police Department also responded to 749 Romie Lane on August 21, 2005. She confirmed that if someone with a gun went out the front of apartment 14, turned left and went down to the carport area, the person could easily drop the gun behind the carport and go running up the stairs to apartment 24. Detective Bohn searched apartment 24 and found codefendant Blackburn's backpack and a blue sweat suit on the kitchen floor.
Detective Bohn searched the green Jeep Cherokee. Straight razor blades, which are used to cut controlled substances such as methamphetamine, were found in the vehicle's ashtray. A garbage bag, which contained cellophane similar to the cellophane baggy found in apartment 14, and a pen, which had been a hollowed out and contained a white powdery substance, was found behind the passenger's seat. The altered pen was a type of device use to inhale drugs. It was determined that the pen barrel contained methamphetamine residue.
Upon taking a closer look at the cell phone that was recovered near Ramos, Detective Bohn discovered that the menu was in Spanish. She also determined that the last numbers inputted on an outgoing, apparently incomplete call were 9-1.
Martin Sanchez, an investigator with the Monterey County District Attorney's Office, went to apartment 14 in December 2005 to search for additional evidence because only four of the five bullets had been recovered. He found a bullet, which had penetrated the carpet, struck the cement floor, traveled about another foot and a half under the carpet, and lodged in the carpet's edge. Its location was consistent with a simulated trajectory from the bedroom into the living room through the bullet hole in the wall.
c. Forensic Pathology
Dr. John Randolph Hain, a forensic pathologist, performed an autopsy on Ramos and determined that he had died of multiple gunshot wounds. Ramos suffered three abdominal gunshot wounds, the order of which could not be determined by Dr. Hain.
One bullet passed through Ramos's leather belt, turned sideways, created an oblong entrance hole through the skin, went through the right pubic bone, and penetrated to the back of the right pelvis, part way through the right ischium bone. Dr. Hain recovered a large caliber partially jacketed bullet from Ramos's right ischium. An area of "black dull discoloration" on the belt indicated that the bullet had been fired at very close range, likely within two inches or less of the belt. The resulting injury would have been very painful and may have been disabling.
A second bullet entered the left side of the pubic area, went through the soft tissue below the pubic bone and through the soft tissues of the lower pelvis, and exited through the right posterior upper thigh immediately below the buttock. The exit wound was about one inch lower than the entrance wound. A deformed large caliber slug was found in Ramos's underwear, similar to the bullet recovered from the ischium bone.
A third bullet entered Ramos's left, lower abdomen, struck multiple loops of small intestine and supporting tissue, continued through the right side of the pelvis and the pelvis bone and lodged in the tissue immediately beneath the skin on the right side of the back, slightly below or around the waistband area. This injury would have created a great deal of pain and may have been disabling. The entrance hole was "surrounded by a broad abrasion ring" with gun powder flakes and burn on the skin at the bottom, a contact wound indicating that the gun had been "against the left abdomen when the bullet was fired."
The three bullets recovered from these abdominal wounds were very similar, all were large caliber, above.40 caliber. The three shots basically traveled at least slightly left to right and either level or slightly downward. These three abdominal wounds would have been very painful and possibly disabling. A person suffering such abdominal wounds might react by doubling over in pain to support the area.
A fourth bullet entered Ramos's left lower back, it traveled through Ramos's body, passing through ribs, spleen, stomach, lung, and heart, and it exited through the center of the upper chest. This wound would have prevented blood from traveling to the brain, caused unconsciousness within a matter of seconds, and been "rapidly fatal." The trajectory of this bullet does not necessarily mean the bullet was traveling upward; it could possibly reflect that person was either hunched over, falling away, or on the ground. No gun powder abrasion ring was found in connection with this bullet wound.
In addition, Ramos had suffered blunt force injuries. Ramos had a deep laceration through the scalp, about an inch long and an eighth to a quarter inch deep, and a similar wound about an eighth of an inch deep on the upper left forehead. The injuries occurred shortly before death and were consistent with blunt contact with some object. A lot of bruising in the forehead area in the scalp indicated the injuries occurred before the gunshot wound to the heart. He also had an abrasion and bruise on the back of the right forearm, which was a "characteristic area for a defensive injury." The firearm recovered from the carport was the type of instrument that could have caused these injuries.
d. Firearm Identification and Ballistics
Steven John O'Clair, a firearms examiner with the Salinas Police Department and an expert in firearm identification and ballistics, testified. He identified the firearm found in the carport as a 45-caliber Ruger pistol, model P97 DC, from which the serial number had been removed. O'Clair examined the bullets and shell casings submitted to him. By comparing test-fired cartridge cases with those recovered from the scene, he confirmed that three recovered cartridge cases were fired from the pistol. By comparing test-fired bullets with bullets recovered from the scene, he confirmed that four bullets had been fired from the pistol. He was not able to make a positive identification with respect to a fifth.45 caliber bullet of a different manufacturer but he could not eliminate the possibility that it was fired from the pistol.
O'Clair explained the pistol's loading and firing. The initial cartridge is inserted into the pistol's chamber by manually pulling back the slide. If the hammer is not cocked when the initial shot is fired, the double action trigger pull is 10 1/2 to 11 pounds. Once the gun is fired, bullets automatically enter the chamber and the hammer cocks back. The pistol's first shot might be double action but every shot after that is single action. The pistol has a single action trigger pull of four to five pounds. Accordingly, if the gun had fired once in double action and a struggle with the gun ensued, the gun would have fired more easily the next time. It could be fired until the magazine was empty. The only way to lower the hammer without firing was to use the de-cocking lever.
Laura Walker, a senior criminologist with the California Department of Justice and an expert in firearm serial number restoration, performed a chemical restoration process that permitted her to read the serial number on the recovered pistol. The number, 663-05077, corresponded to the serial number on a.45 caliber P97 Ruger pistol, which had been stolen, along with 42 other handguns or rifles, from its owner in January 2005.
Terry Suchan, the gun owner's grandson, admitted that he had stolen a large number of guns from his grandfather during January 2005. He sold all the handguns and rifles or used them to pay off debt. He stated that he gave all the handguns, at least nine or 10, to Holly, whom he identified as defendant Griffith in the courtroom, to pay off a drug debt. He admitted that he had gone to a Super Eight Motel in Monterey to transfer those handguns to Holly. Suchan had been arrested shortly after he committed the burglaries, he had pleaded guilty, and he was serving a prison sentence at the time of trial. In addition, Suchan admitted that he had pleaded guilty to a robbery at some point and he had a conviction for drug sales.
Suchan denied telling a police officer that he had sold stolen firearms to Jessie James Rodriguez. He denied providing handguns to Shannon Shide, stating he did not know anyone by that name.
e. Post-arrest
In the late evening hours of August 21, 2005, Jay Malispina, who was then a patrol supervisor with the Salinas Police Department, heard someone, who turned out to be defendant Griffith, yelling and kicking or pounding on the heavy metal door of the police department holding cell. Defendant was eventually taken to the emergency room at Natividad Medical Center for a medical check. Officer Malispina was present when defendant Griffith was speaking with some of the medical personnel but he never heard Griffith say he had been assaulted or attacked in any way. He did hear defendant Griffith say he hurt his back as a result of spitting.
In the early morning hours of August 22, 2005, a nurse at Natividad Medical Center conducted the initial intake of defendant Griffith. He never said anything about being attacked or assaulted to her. He made sarcastic and "smart-ass type comments." He did not appear to be in any distress.
A physician assistant at Natividad Medical Center examined defendant Griffith. Defendant Griffith was complaining of back pain and left ankle pain but x-rays did not show any fracture or dislocation. The physician assistant did not notice any bruises or scratches or other injuries indicating a struggle. He could sense that defendant was having an asthma attack.
Another nurse at Natividad Medical Center participated in an examination of defendant Griffith. Griffith said he had been arrested for murder and injured in custody. Defendant Griffith complained of ankle and low back pain. A doctor had ordered asthma medication for defendant but he did not appear to be in distress.
On August 24, 2005, defendant Griffith stated in court, "I killed him, Your Honor. I had to. He was trying to kill me."
When searching defendant Griffith's jail cell on October 27, 2005, Detective Bohn found a newspaper clipping regarding this case. It said, " 'Man slain in Salinas apartment. Two arrested following robbery shooting.' " Directly beneath the word "man, " the word "Holly" was written and underlined in pencil and, next to the word "shooting, " the word "Cra-z" was written and underlined in pencil. Jail inmates are allowed to write with only pencils.
On October 12, 2006, Monterey County Deputy Sheriff Anthony Snell was employed as a training officer and he was responsible for jail security. At about 1:15 a.m. on that date, as he and a trainee were walking down the corridor, Snell heard a banging sound coming from the holding area and, upon reaching the area, he saw Griffith through a window in the door. As defendant Griffith was escorted out of the holding area, he was very agitated and angry, he uttered obscenities, and he stated, " 'I'm a murderer. I'm in here for murder.' "
At about 1:15 a.m. on October 12, 2006, Deputy Sheriff Luis Camacho, who was working in the Monterey County jail, heard a loud pounding coming from the holding area. Camacho opened the door to the holding area and asked defendant Griffith if he was okay. Defendant Griffith replied, "You don't know who you're fucking with. I'm a murderer. I kill people like you." Camacho arrested defendant Griffith for resisting, delaying and obstructing a peace officer. Griffith filed a grievance against Camacho.
2. The Defense Case
a. Defendant's Testimony
Defendant testified in his own defense. He admitted that in January 2005 he met with Terry Suchan at a Super 8 Motel in Monterey. Suchan provided defendant Griffith with four firearms: two identical.25's or.22's, a big silver.44 caliber gun with a black pistol grip, and a loaded.38. Two or three days later, he met Suchan at a Salinas apartment, where he obtained four more guns: a snub-nose.38, a 357, and two handguns. Other individuals were present with firearms on both occasions. According to defendant, he gave away or sold all the guns he had received from Suchan.
At about 3:15 or 3:20 p.m. on August 21, 2005, defendant called Ramos, whom he knew by his nickname of Gordo, to buy a quarter ounce of "ice, " which he knew was illegal. Ramos agreed to meet defendant at Frias's apartment on Romie Lane at 5:30 p.m. When defendant called Ramos from Frias's apartment at about 5:30 p.m. to see if Ramos had arrived, Ramos told him he was there. Ramos had been to the Romie Lane apartments and previously provided or sold drugs to defendant.
Defendant walked out of the apartments toward the Jeep Cherokee, which he had previously seen Ramos driving. Defendant could see Ramos and another man, whom he knew by the name of Tonio, inside the vehicle. When defendant tried to enter the vehicle, which was locked, Ramos rolled the window down about three inches, showed defendant a bag, told defendant that he needed to weigh it out, and asked to go inside. The three of them walked to apartment 14 and went inside. Defendant passed $125 for the purchase of a quarter ounce of "ice" to Ramos, who passed it to Tonio, who began to count it. Ramos and defendant went into the back bedroom.
Defendant began to clear off a dresser to make a flat surface for a scale. A quick movement caught defendant's eye and, when defendant turned, he saw Ramos pointing a handgun at him. Ramos told him in a very loud and angry voice that "May Lee took two and a half ounces from him" and he wanted his money. Defendant told Ramos that he had nothing to do with it and he did not know anything about it. Ramos said, still pointing the gun at defendant, " 'Come on Chris. Come on. I want my money. Don't make me kill you.' " Defendant was scared that he might actually kill him.
Defendant stepped forward and grabbed for the gun with both hands. Ramos rushed defendant back into the wall. As defendant's back went through the wall, the gun went off. As defendant came away from the wall, Ramos and he began struggling for the gun. Ramos was hitting defendant with his free hand. Defendant was trying to keep the gun turned away from himself. They were in the middle of the bedroom when the gun fired again as defendant was trying to get it out of Ramos's hands and keep it pointed away from himself. According to defendant, after the second shot was fired, Ramos began calling out in English for Tonio to bring his gun. Defendant was able to ram Ramos back; Ramos almost flipped over the chair and almost went through the wall. Ramos pushed defendant into the closet area and the struggle continued. As they struggled for the gun, it went off a third and a fourth time. Thereafter, Ramos was no longer demanding; he was calling to Tonio in Spanish. Ramos raised the gun with both hands; defendant also had his hands on the gun.
Ramos backed toward the living room and the struggle moved out of the bedroom. Defendant was scared that Ramos and Tonio were going to kill him. Defendant kneed Ramos in the right abdomen side area "with everything that [he] had" and pulled on the gun. Defendant testified that, as he was trying to control the gun and the gun was coming down, the gun fired. Ramos spun around and fell backward toward the couch. The gun dropped to the ground.
Defendant immediately picked it up from the ground and ran toward Tonio with the gun, saying, "Do you have a gun? Do you have a gun?" He pointed the gun right in Tonio's face. Tonio had his hands up and said something in Spanish, which defendant did not understand. Defendant noticed his cousin Blackburn was there and asking him "what in the fuck [was] going on." Defendant saw Ramos's lifeless eyes. Defendant wrapped the gun with a blanket from the couch. Defendant did not take anything from Ramos or Tonio. When he reached the door, defendant told Tonio to give him back his money and Tonio gave defendant $125.
Defendant left and walked out toward the street. He was having an asthma attack. He thought he had an inhaler in his car and started walking toward his car. He left the gun in the carport and went to apartment 24. At some point, he was asked by police to come out of the apartment.
Defendant acknowledged that he did not have a scale at Frias's apartment and that he did not see Ramos with a scale.
Defendant indicated that he did not realize that Ramos had been hit until after the third and fourth gunshots. Defendant acknowledged that, at the time they were struggling and the gun fired for the third and fourth time, his hand was near the trigger. After those shots, he "figured" Ramos had been shot because "his voice wasn't so demanding" and he appeared in pain. After Ramos was shot three times, the intensity of Ramos's fight diminished but their struggle over the gun continued.
Defendant recalled that, when Ramos was moving backward toward the living room and pulling defendant with him, defendant "thought about just pushing him and letting him have the gun and jump[ing] through the window, but [defendant] was scared he'd shoot [him] in the back of the head or something." Defendant confirmed that, when he kneed Ramos, defendant was able to pull the gun from Ramos' hands and Ramos fell, his back toward defendant. In the process, the gun fired somehow and dropped to the floor. At another point, defendant stated that he was trying to control the gun when it just went off. When then asked if the gun went off while it was in defendant's hand or while it was falling to the ground, defendant stated that his hands were on the firearm and could have been on the trigger.
Defendant explained that, when he had reached the carport, he heard a police car pull in, and looked back, and decided he needed to put the gun down. He acknowledged that he did not run to that police officer and say, "This guy in my girlfriend's apartment just tried to kill me" or "The guy just tried to kill me with this gun." He conceded that he stayed in apartment 24 and he did not promptly come out and tell responding police, "[T]hat guy just tried to shoot me" or "I'm having a horrendous asthma attack because this guy just attacked me."
Defendant claimed to be unfamiliar with firearms but he admitted that he had accepted firearms in trade for methamphetamine on one occasion and for methamphetamine, coke, and money on another occasion.
Defendant acknowledged having a tattoo "[T]hug for [L]ife, " which he obtained many years before while in the California Youth Authority. When asked if he considered himself a thug, defendant indicated that he did back in 2005, when he "had a whole different mind state" but not now. When he was younger he viewed himself as a "thug for life" but he no longer viewed himself that way. He admitted that he was dealing dope and guns in 2005, but he denied he had set up Ramos. When asked if a "thug" was a criminal, defendant indicated that he thought of it differently and "it isn't considered in a criminal nature" and explained: "It's just like I'm from somewhere you're not, you know. Two Pock [sic] was a thug. He was a millionaire. He did movies, acted, rap music...." Defendant admitted that he had a prior juvenile adjudication for attempted robbery with a firearm when he was 15 years old.
Defendant admitted kicking the holding cell door but explained that he needed medical treatment for an asthma attack. Defendant denied telling a doctor, nurse or medical personnel on the night of the killing that he hurt his back spitting. He denied telling Nurse Holman that he was hurt in custody.
b. Impeachment of Prosecution Witnesses
In 2005, Megan Hart was Suchan's girlfriend. She was aware that, on two different occasions during about January 2005, Suchan took guns from his grandfather. At a meeting with between six to 10 people, including defendant (known as "Holly"), at the Super 8 Hotel in Seaside, Suchan sold or gave away about 10 stolen firearms, including some.22 caliber handguns. Jessie Rodriquez and Shannon Shide had been present at the time. Hart had told an officer that Suchan had taken eight or nine handguns and delivered them to Holly. Suchan subsequently went to a Salinas apartment with more guns. Hart had told an officer that some guns were given to Holly, as well as others, during this second transaction.
Omar Pena, who was employed by the Salinas Police Department, testified that at about 5:40 p.m. on August 21, 2005, in response to a call regarding a disturbance between two males, he went to apartment 14 in the apartment complex on 749 East Romie. When he arrived, he saw another officer had his gun drawn on an open door and he saw an individual, who turned out to be Sandoval, bleeding from the head. Pena observed injuries on both sides of his face and dried blood on his ears.
Pena interviewed Sandoval in Spanish. Sandoval claimed to have gone to the apartment to pick up his brother, referring to Ramos, who had directed him to that location by cell phone. He said he had been pulled into the apartment by a black male who had beaten him. He had seen Ramos shot two more times. Sandoval said that the individual, who had shot Ramos, had pointed a gun to his head and had subsequently left the apartment through the front door with the gun wrapped in a blanket or towel. Sandoval saw the person who had been beating him run toward the back of the apartment and Sandoval thought that person was still in the apartment. Sandoval at first told Officer Pena that he did not know why Ramos was there but he eventually admitted drugs might be involved.
Timothy Menezes, who was employed by the Monterey County Sheriff's Department, testified regarding an incident at the jail on October 12, 2006. He was with Snell, his field training officer. Deputy Camacho had direct control of a situation involving defendant Griffith. Griffith was kicking the door and angrily yelling, " 'Open the fucking door' " and " 'Let me out.' " When asked if he heard other statements, Menezes replied that he was "a good 75 feet away" and was not "particularly paying attention to his exact phrases." From about 50 to 65 feet away, he observed Deputy Camacho let defendant Griffith out of the cell and defendant walking in his direction.
Menezes noticed Griffith was extremely agitated. Griffith was still yelling and he was demanding to be returned to "his fucking room." Menezes heard Griffith say, "Don't touch me. I'm here for murder." Griffith appeared to be bragging and trying to intimidate them. Menezes assisted Deputy Camacho in taking Griffith to the ground. Menezes admitted, however, that he did not necessarily hear everything Griffith said and there was quite a bit of yelling.
D.A. Investigator Sanchez contacted Sandoval on February 12, 2008. Sandoval indicated that he had an idea that the reason for going to the apartment was to sell drugs. Sandoval used the word "ice" in reference to selling drugs, which Sanchez took to mean methamphetamine, and Sandoval "did bring up the word ice as being something that he knew about." Sandoval told Sanchez that he had seen Ramos in possession of "ice" on prior occasions and Sandoval suspected that Ramos was involved in the sale of drugs. Sandoval recalled, as he had previously, that Ramos "had said, help, call the police or words to that effect." For the first time Sandoval told him that he had seen "someone strike decedent over the head." Sandoval said that neither he nor Ramos had been armed. Sanchez did not ask Sandoval whether he had previously seen Ramos in possession of a weapon when in possession of illegal drugs.
3. The Prosecution's Rebuttal Case
Scott Armstrong, whose area of specialty at the Department of Justice was firearms and tool marks, testified that there was a safety mechanism on the Ruger pistol that would prevent it from firing as a result of being dropped. He explained how the mechanism worked. The gun can be fired only by pulling the trigger. After the gun is fired the first time, the force required to fire it again is five to 10 pounds.
Armstrong had examined the shirt with a bullet hole and had done chemical and microscopic testing to determine if any gunshot residue was present but had not located any residue. A gun fired from two or fewer feet leaves particular patterns of residue, which Armstrong described, but one normally would not expect to see any gunshot residue pattern if a gun were fired from three or more feet away without any intervening object. He found no pattern of any kind on the shirt when he examined it.
Kyle Kimm, a police officer with the City of Salinas, was a range master responsible for all firearms training within the police department and a certified advanced firearms instructor. He explained that the action of grabbing the slide on a semiautomatic handgun would interfere with the gun's reloading and most likely cause it to malfunction and not fire. The Ruger pistol has a gray metal slide on the top and a slide lock. When the gun is fired, its slide is supposed to move unimpeded all the way to the rear and then all the way forward to properly eject the casing and reload. This action occurs with a great deal of speed and force, which is likely to cut a hand placed on the barrel. Kimm explained that grabbing the upper portion of the slide would provide leverage to turn away the muzzle of the handgun pointed at one by an attacker. But he also acknowledged that an individual struggling against a person with a gun may not be injured by the slide action if the individual has a hand on the person's wrist and the other hand underneath the gun.
Kimm acknowledged that substantially less trigger force was needed to fire the gun after it had fired one time. He indicated some people can continue to fight with vigor for several minutes even with a non-survivable lethal gunshot wound.
Bill Posey, a toxicologist, conducted a full drug screen of Ramos's blood, which detected no drugs. He conceded that, if a person had ingested methamphetamine through a small pipe and then had been shot seven minutes later, a toxicologist would not expect to detect methamphetamine in the blood. A person in the initial excitable phase of the drug would show symptoms of nervous system stimulation such as agitation or elated behavior.
Nuuy Livingston, who worked for the City of Salinas Police Department and assisted in the homicide investigation, took photographs of defendant Griffith's hands. He observed no injuries whatsoever on defendant's hands.
At the scene of the homicide, Officer Pena provided perimeter security. He confirmed that defendant Griffith never came out of apartment 24 and said, "[T]his person tried to attack me" or "[Y]ou might want to look under the carport of the apartment because I had to put a gun down there." Pena was involved in transporting defendant to the police department and, at the police department, defendant stated he wanted medical attention and he was yelling. Pena did not hear him yell, "[Y]ou have got the wrong guy" or "I was just attacked." He confirmed that defendant had to be hobbled because he was yelling, kicking and punching the door. He continued to yell and kick the door, which loosened the hobble, and he had to be hobbled again. During this time, he never said he had been attacked or someone had tried to rob him.
Thomas Jenkins, a detective with the Monterey County Coroner's Office, saw Ramos at the scene and observed Ramos's injuries. He had four bullet wounds, including a bullet wound to the center left of the back, and some head injuries, including a laceration on the left side of the forehead, a small laceration of the right side of the forehead, and one on the top right of the head.
In closing argument, the prosecution suggested that defendant Griffith had lured Ramos to the Romie Lane apartments to rob him of drugs and something had gone wrong with the robbery. The jury was asked to find defendant Griffith and codefendant Blackburn guilty of robbery and first degree murder, either felony-murder or willful, deliberate, and premeditated murder. The prosecution further contended that, when the final shot was fired through Ramos's back, Ramos was no threat because he was already wounded and had been beaten severely on the head.
The defense maintained that there was no robbery and defendant Griffith had acted in self-defense. It was contended that defendant had been in a struggle for his life and Ramos and he were still struggling for the gun when the last shot went off. The jury was urged to find defendant not guilty.
C. Denial of Continuance and Access to Prosecution's Evidence
1. Pertinent Background
Attorney Herrera was appointed as counsel for defendant on December 20, 2006. On March 6, 2007, the matter was set for jury trial on June 18, 2007.
On May 31, 2007, the court granted an unopposed, oral defense motion for continuance of trial and reset trial for July 2, 2007.
On June 21, 2007, attorney Herrera filed a written motion for continuance of trial and requested the trial be reset for August 20, 2007. Herrera's supporting declaration stated that "[a]dditional time is needed to more fully review a CD recently provided to counsel" that "contains hundreds of crime scene photos" and "[a]dditional time is also needed to permit an expert witness to fully review, assess and analyze certain technical and medical evidence...." The court granted defendant's motion for continuance of trial and reset trial for August 27, 2007.
On July 19, 2007, Herrera filed a motion to compel further discovery from the prosecution, including the disclosure of "all relevant real evidence seized or obtained as part of the investigation of the offenses charged." At the July 31, 2007 hearing on the motion, Herrera stated that he recognized that he was the fourth or fifth lawyer and indicated that the solution was for the prosecution to go over all evidence with him. The prosecutor indicated that she was willing to do a complete evidence review. The court denied the discovery motion with the caveat that the motion could be revisited if there was a problem in the future.
By notice of motion filed on August 15, 2007 and scheduled to be
heard on August 17, 2007
, attorney Herrera moved for another continuance of the trial, still set for August 27, 2007. Herrera's supporting declaration stated, among other things: "Additional time is needed for a retained expert witness in forensic evidence to review, assess and complete his report on various issues submitted to him by defense counsel. This expert witness will not have such assessment and report completed in time for the presently set jury trial date, and certainly not in time for appropriate and timely disclosures to the prosecution." It was requested that the matter be reset for jury trial on November 26, 2007.
On August 17, 2007, a Marsden motion was denied. The court directed that defendant be removed from the courtroom after an outburst against Herrera. The court reset trial for October 1, 2007.
Between Herrera's appointment and late September 2007, defendant brought a number of unsuccessful Marsden motions (People v. Marsden (1970) 2 Cal.3d 118), an unsuccessful Faretta motion (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525]), an unsuccessful motion to be appointed as "co-counsel." On September 24, 2007, the court refused to relieve Hererra as defendant's attorney of record even though Herrera had informed the court that defendant Griffith had "unilaterally" decided to not communicate or cooperate with him and, consequently, Herrera had not discussed case strategy with defendant since August 17, 2007.
At the September 24, 2007 hearing, the court noted that Herrera was defendant's fourth attorney, Herrera had been working diligently since he was appointed about 10 months earlier, and defendant had brought a number of Faretta and Marsden motions. It warned that allowing "defendant to succeed in getting rid of his attorney by not speaking to him following the denial of the Marsden motion would be... to allow the defendant the authority to manipulate the proceedings with unnecessary waste of resources and inexcusable playing." The court warned that "defendant's lack of cooperation or other intentional conduct that affects the ability of the attorney to prepare the case for trial will not be a basis for finding good cause for a continuance." Nevertheless, the court found good cause for continuance of trial and continued the matter for trial setting on October 16, 2007. The court then heard and denied another Marsden motion. Defendant spoke to attorney Herrera in an aggressive and nasty manner and then walked out of the courtroom.
The court granted a Marsden motion against defendant's first attorney. His subsequent attorney, Joseph Landreth, was relieved as attorney of record for medical reasons but later reappointed after the subsequent counsel declared a conflict. A Marsden motion against Landreth was denied. Landreth was later relieved when he declared a conflict.
On October 16, 2007, trial was set for January 28, 2008. The court scheduled the case for identification of pretrial motions on January 4, 2007. Defendant filed a request for substitution of counsel based upon a conflict arising from a malpractice lawsuit filed by defendant against attorney Herrera. On November 1, 2007, the court found no conflict.
On November 29, 2007, the court heard and denied defendant's Marsden motion. Defendant Griffith then indicated he wished to represent himself. After discussion and a warning that he would not receive any special treatment, the court granted defendant Griffith's request to represent himself and appointed Herrera as advisory counsel. The court also stated that Herrera was "to continue to be prepared to try this case, to take it over in a moment's notice" and designated Herrera as "advisory counsel who will be prepared to take over if need be." The court reset trial for Monday February 11, 2008.
" 'Standby counsel' is an attorney appointed for the benefit of the court whose responsibility is to step in and represent the defendant if that should become necessary because, for example, the defendant's in propria persona status is revoked. [Citations.] 'Advisory counsel, ' by contrast, is appointed to assist the self-represented defendant if and when the defendant requests help. [Citations.]" (People v. Blair (2005) 36 Cal.4th 686, 725.)
On January 10, 2008, the court ordered all parties to meet and confer to resolve discovery issues on the following day and to complete the exchange of discovery by Wednesday January 16, 2008.
By notice filed on January 14, 2008, defendant moved for an order removing Herrera as advisory counsel and appointing him as co-counsel. By notice of motion filed on January 16, 2008, defendant Griffith moved for continuance of trial, still set for February 11, 2008. According to his supporting declaration, expert witness Peter Barnett was critical to his defense, defendant had not yet received any report from Barnett regarding the substance of his testimony, Barnett's testimony would "likely be needed" "in order to have a fair trial, " and defendant had discovered upon reading the file that Barnett would not be available for trial, and, further, defendant needed additional time to receive and review material to prepare for trial. The People filed opposition on the ground that good cause had not been shown and further delay would be prejudicial.
On January 25, 2008, the court held a hearing on defendant's motion to continue trial. Herrera was not present in court. The prosecutor represented that "months ago" she had done "a complete evidence review" with Herrera and the prosecution had "turned over all discovery that is in our possession." Defendant explained that his expert had indicated in an e-mail that he had received a defective CD and, consequently, had not done any work on the case. Defendant represented that Barnett was supposed to be "doing trajectories." Co-defendant's counsel indicated that he had understood from Herrera that "the expert was going to testify regarding bullet trajectories." The court continued the hearing on defendant's continuance motion until January 28, 2009. Defendant withdrew his motion to have Herrera appointed as co-counsel.
By notice filed on January 25, 2008, advisory counsel Herrera brought a motion, to be heard on February 7, 2008, on behalf of defendant Griffith for a continuance of trial. Herrera's supporting declaration, dated January 21, 2008, indicated that the request for appointment of a defense expert witness had been granted on July 25, 2007. Herrera had spoken by telephone with this expert on July 26, 2007 and communicated with him by e-mail on August 13, 2007, September 26, 2007, and December 10, 2007. Herrera had not received the requested analysis or summary report from this expert witness and the witness had indicated that he needed additional time to complete his review. The expert had performed a partial review and analysis. A September 26, 2007 e-mail from the expert had stated that he would be unavailable from February 18, 2008 through March 13, 2008 due to a planned vacation, but Herrera had not remembered the e-mail at the November 29, 2007 hearing. He stated that defendant Griffith needed additional time to review materials related to his case and to receive and review the expected report of the court-appointed expert.
A declaration from the court-appointed investigator Flora Pascal, also filed on January 25, 2008, indicated that certain CD's and DVD's on "the District Attorney's list" had not yet been received and not all discovery items had been "presented to the defendant in pro per, " which had made it difficult to "complete[] certain tasks in this case." She stated that "[r]elevant lab results and other documents" had not been "given to the expert witness until recently when they were received...." Pascal further indicated in her declaration that the investigative process had been hindered by the strained communications between defendant and his attorney. Copies of e-mails, also filed in court on January 25, 2008, showed that, on December 11, 2007, Barnett had contacted investigator Pascal to let her know that he had not received a replacement for the defective CD previously provided and, consequently, he had not worked on the case and Pascal had replied the same day that she had sent a replacement CD.
At the January 28, 2008 hearing, Herrera, still acting as advisory counsel, told the court that a claim of self-defense was the "core of Mr. Griffith's defense" and Barnett was a critical witness. He explained that Barnett was going to review the various items of evidence and determine how they supported the claim of self-defense. Herrera indicated that he was unhappy with the pace of Barnett's work but indicated that Barnett was being deliberate and very meticulous. Herrera acknowledged that Barnett was not under subpoena. Herrera informed the court that Barnett was not available for three to four weeks beginning February 18, 2008, which he reiterated he had overlooked on November 29, 2007.
On January 28, 2008, the court commented that the defense had received nothing tangible from Barnett and Barnett might not have any relevant or valuable information for defendant. Herrera said, "... I state with a high measure of confidence that Barnett is going to have a lot to say... in support of Mr. Griffith's defense of self-defense." The court instructed defendant and Herrera to have Barnett appear in court on February 7, 2008 and to inform Barnett that the court expected him to have completed his work by then.
On February 4, 2008, the People filed a memorandum opposing release of forensic evidence to Barnett. The memorandum and attached exhibits showed the following. By e-mail dated July 26, 2007, Herrera informed the prosecuting attorney that his motion for an appointment of an expert, Peter Barnett, had been approved and Herrera was providing the information "because of the short time period remaining for jury trial." Herrera further stated, "I am also working diligently in getting to Barnett all the relevant reports for his professional assessment." On January 28, 2008, "Herrera handed the People a letter from Barnett to defense investigator Flora Pascual [sic], " which was dated January 23, 2008. In the letter, Barnett asked for numerous items of evidence, including articles of clothing, bullets and casings, and the Ruger pistol and its magazine, so he could examine them in his laboratory. On January 29, 2008, the prosecutor received an e-mail from Barnett stating that he would like to pick up the requested items on February 7, 2008 (four days before trial was scheduled to begin). The prosecutor responded by e-mail that the evidence could not be released because release would hamper presentation of the exhibits at the scheduled trial and create chain of custody issues. She informed Barnett that the prosecution would not agree to any testing that might alter the appearance of the items or otherwise compromise the evidence.
In their memorandum, the People opposed any release of the physical evidence to the defense expert on grounds that they were responsible for the chain of custody and the integrity of the physical evidence. The People pointed out that the defense was not asking for a sample of biological material that might be divided for testing purposes and requested that, if the court permitted further defense testing, such testing be done by a laboratory selected by defendant and approved by the prosecution, be witnessed by each side's forensic experts, and be conditioned upon a stipulation as to the chain of custody.
On Thursday February 7, 2008, defendant Griffith requested that attorney Herrera be reappointed as trial counsel and the court reappointed Herrera as defendant's counsel in this case. As to the motions for continuance, Herrera told the court that, while defense expert Barnett had reviewed "a tremendous amount of material" that "might fill half this courtroom, " the defense still had not received his report, which was critical. Herrera argued that the court "might properly castigate a forensic scientist for painstakingly looking at the details of the case" or him "for not cracking a meaner whip on the back of this retained and court-appointed expert witness, " but it could not hold defendant Griffith responsible for the missing report.
Herrera was not appointed as defendant's counsel in a separate prosecution for violation of Penal Code section 422, which had been consolidated with and then severed from this prosecution.
After discussion in open court and in a closed hearing with Herrera and Barnett, the court denied the motion to continue the jury trial because adequate time remained before trial for Barnett to evaluate the clothing evidence. It refused to allow further testing of the ballistics evidence because there was no dispute that the bullets had been fired from the identified weapon and the request for examination of this evidence was premised upon "nothing other than the wildest speculation that it might turn up something helpful." The court directed the prosecution to make the requested clothing available to Mr. Barnett the next day, Friday February 8, 2008. The court left it to Mr. Barnett and the prosecution's expert to decide whether the evaluation and any testing of the clothing, which the court required to be done under supervision of the prosecution's custodian of evidence, would occur in Mr. Barnett's facilities or the prosecution's facilities. The court stated it would "certainly ensure" that Barnett testified out of order before he left on vacation.
Herrera indicated that there might be blood stains, hair, or other indicators of a self-defense struggle on the clothing. He also indicated that an area of inquiry for the defense was the bullets' trajectories and starting and ending points. Barnett informed the court that he was cutting short his vacation and would not be leaving until February 25, 2008. He also indicated that he was not exactly certain what the work would entail but he would agree to do it if the evidence could be in his laboratory the following Monday morning, the date scheduled for trial to commence.
Herrera then protested that the court had denied continuance of trial before he had a chance to say that he was not ready for trial because he had been sidelined for over two months. Herrera acknowledged that he had been told to be ready at a moment's notice but he complained that he had been unable to conduct his usual intensive trial preparation during the 60 to 90 days prior to trial. But he acknowledged that he had tried to stay up with "the assessment and analysis" of the case. The court indicated that it was unwilling to continue the trial since defendant made his "decision to take charge of his own case during certain critical periods leading right up to the day of trial." The court stated that defendant Griffith "was going to go to trial representing himself" and "[h]e's asked to have you [in] whatever shape you're in."
Barnett stated that he could not do an adequate job without all the requested evidence and further explaining that his laboratory policy precluded the presence of persons in law enforcement due to confidentiality issues and it was impossible for him to work in another laboratory. The court's order was left standing and trial remained set for Monday February 11, 2008. Barnett did not testify at trial.
2. Denial of Continuance
Defendant Griffith contends the trial court's February 7, 2008 denial of a continuance of trial deprived him effective assistance of counsel and a fair trial in violation of the Sixth and Fourteenth Amendments to the United States Constitution. He asserts that the record establishes that he was constitutionally entitled to a continuance to allow time for the defense expert to analyze the evidence and prepare his report and to allow his defense counsel to adequately prepare for trial after his reappointment.
The People argue that defendant has failed to preserve the constitutional issues for review because they were not raised below. They also maintain that the denial of a continuance was not an abuse of discretion and did not violate defendant's constitutional rights.
We assume defendant's constitutional claims are cognizable on appeal insofar as he is arguing that any error in denying the requested continuance had the additional legal consequence of depriving him of due process or the Sixth Amendment right to counsel. (Cf. People v. Zamudio (2008) 43 Cal.4th 327, 353; People v. Partida (2005) 37 Cal.4th 428, 435-436.) We first consider whether refusal to continue the trial denied defendant effective assistance of counsel.
In Morris v. Slappy (1983) 461 U.S. 1 [103 S.Ct. 1610], the United States Supreme Court stated: "Not every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel. See Chambers v. Maroney, 399 U.S. 42, 53-54, 90 S.Ct. 1975, 1982-1983, 26 L.Ed.2d 419 (1970). Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary 'insistence upon expeditiousness in the face of a justifiable request for delay' violates the right to the assistance of counsel. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)." (Id. at pp. 11-12 [trial court did not abuse its discretion in denying motion for continuance until the deputy public defender initially assigned to defendant was available].)
The next year, the Supreme Court decided Strickland v. Washington (1984) 466 U.S. 668 and United States v. Cronic (1984) 466 U.S. 648. In Strickland, the Supreme Court held that to establish a denial of effective assistance of counsel in violation of the Sixth Amendment right to counsel, a defendant must make a two-prong showing that defense counsel's "performance was deficient, " that is the attorney performed unreasonably under "prevailing professional norms, " and that "the deficient performance prejudiced the defense, " that is "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland v. Washington, supra, 466 U.S. at pp. 687-688, 694.) A defendant's conviction will not be set aside on appeal based upon a claim of ineffective assistance of counsel at trial unless this showing is made. (See Strickland v. Washington, supra, 466 U.S. at p. 700 ["Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim"].) Defendant has neither argued nor shown that the denial of a continuance resulted in ineffective assistance of counsel under the Strickland standard because the ruling resulted in Herrera being inadequately prepared for trial.
Of course, defendant cannot claim ineffective assistance of counsel for inadequate pretrial preparation by him while he was representing himself. (See People v. Blair, supra, 36 Cal.4th at pp. 722-723.)
"Cronic held that a Sixth Amendment violation may be found 'without inquiring into counsel's actual performance or requiring the defendant to show the effect it had on the trial, ' Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), when 'circumstances [exist] that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified, ' Cronic, supra, at 658, 104 S.Ct. 2039." (Wright v. Van Patten (2008) 552 U.S. 120, 124 [128 S.Ct. 743].) Those limited circumstances include a complete denial of counsel, the denial of counsel at a critical stage of his trial, a complete absence of "meaningful adversarial testing" by counsel, and circumstances where, although counsel is available to assist the accused during trial, the "likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." (U.S. v. Cronic, supra, 466 U.S. 648, 659-660 [104 S.Ct. 2039]; see Bell v. Cone (2002) 535 U.S. 685, 696-697 [122 S.Ct. 1843, 152 L.Ed.2d 914] ["When [the Supreme Court] spoke in Cronic of the possibility of presuming prejudice based on an attorney's failure to test the prosecutor's case, [the court] indicated that the attorney's failure must be complete"].)
The Supreme Court explained in Cronic: "[E]very refusal to postpone a criminal trial will not give rise to such a presumption [of prejudice]. In Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940), counsel was appointed in a capital case only three days before trial, and the trial court denied counsel's request for additional time to prepare. Nevertheless, the Court held that since evidence and witnesses were easily accessible to defense counsel, the circumstances did not make it unreasonable to expect that counsel could adequately prepare for trial during that period of time, id., at 450-453, 60 S.Ct., at 324-325." (U.S. v. Cronic, supra, 466 U.S. at p. 661, fn. omitted.) The court stated that "only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial." (Id. at p. 662, fn. omitted.) "The fact that the accused can attribute a deficiency in his representation to a source external to trial counsel does not make it any more or less likely that he received the type of trial envisioned by the Sixth Amendment, nor does it justify reversal of his conviction absent an actual effect on the trial process or the likelihood of such an effect." (Id. at p. 662, fn. 31.)
Aside from the circumstances identified in Cronic, "there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt. [Citations.]" (Id. at p. 659, fn. 26.) Defendant has not established that the February 7, 2008 denial of a continuance created any of the circumstances identified in Cronic.
We next turn to the question whether the court's denial of a continuance deprived defendant of due process. "A continuance in a criminal case may be granted only for good cause. (§ 1050, subd. (e).) Whether good cause exists is a question for the trial court's discretion. (People v. Jenkins (2000) 22 Cal.4th 900, 1037....) The court must consider ' " 'not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion.' " ' (Ibid.) While a showing of good cause requires that both counsel and the defendant demonstrate they have prepared for trial with due diligence (ibid.), the trial court may not exercise its discretion 'so as to deprive the defendant or his attorney of a reasonable opportunity to prepare.' (People v. Sakarias (2000) 22 Cal.4th 596, 646....)" (People v. Doolin (2009) 45 Cal.4th 390, 450.)
"The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel. [Citation.]... There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied. [Citations.]" (Ungar v. Sarafite (1964) 376 U.S. 575, 589-590 [84 S.Ct. 841].)
"In reviewing the decision to deny a continuance, '[o]ne factor to consider is whether a continuance would be useful. [Citation.]' (People v. Frye (1998) 18 Cal.4th 894, 1013....)" (People v. Mungia (2008) 44 Cal.4th 1101, 1118.) "A reviewing court considers the circumstances of each case and the reasons presented for the request to determine whether a trial court's denial of a continuance was so arbitrary as to deny due process. (People v. Frye, supra, 18 Cal.4th at p. 1013....) Absent a showing of an abuse of discretion and prejudice, the trial court's denial does not warrant reversal. (People v. Barnett (1998) 17 Cal.4th 1044, 1126....)" (People v. Doolin, supra, 45 Cal.4th at p. 450.)
Here, the defense motions for continuance sought additional time for the defense expert to complete his analysis and report. The record does not demonstrate that Herrera in his capacity as appointed counsel, or defendant in representing himself, exercised due diligence to ensure that Barnett, who they asserted would be a critical witness, timely completed any desired examination and testing and prepared a report. After Herrera initially communicated with Barnett around the time of Barnett's appointment, Herrera communicated with Barnett again on August 13, 2007, only two weeks before the scheduled trial, then set for August 27, 2007. Even though, on August 17, 2007, trial was rescheduled for October 1, 2007, Herrera apparently did not communicate with the expert again until late September 2007, a couple of days after the court had again agreed to continue trial. Herrera apparently had no communications with the expert during October or November 2007, although the trial had been rescheduled for January 28, 2008 in mid-October.
When defendant began representing himself on November 29, 2007 and trial was reset for February 11, 2008, defendant had over two months to complete trial preparations. The record does not demonstrate that defendant, while representing himself, exercised due diligence to resolve whether his expert had finished all work. The record does not show that, during December 2007 or January 2008, defendant made any substantial efforts to closely monitor Barnett's progress and finalize whether Barnett would be called as a defense witness.
At no time, did defendant or Herrera seek a court order requiring the prosecution to make specific evidence available for examination or testing by Barnett. In fact, the written request from Barnett to the defense investigator for particular items of evidence was not passed onto the prosecution until January 28, 2008, only two weeks before the scheduled trial date. Neither defendant nor Herrera demonstrated that a continuance would be useful in producing specific relevant evidence beneficial to the defense. (See People v. Jenkins (2000) 22 Cal.4th 900, 1038.) As we thoroughly discuss below, defendant did not have a federal constitutional right to pretrial access to the government's physical evidence for the purpose of examination and testing. Nevertheless, the court issued an order facilitating immediate examination and testing of clothing evidence by the defense's expert under specified conditions that would allow the trial to proceed as scheduled.
Under the totality of circumstances, it was reasonable to conclude that the defense had not acted with due diligence, the defense had been provided a reasonable opportunity to prepare for trial, and there was no good cause to yet again continue trial based on the hope that examination or testing by the defense expert might produce evidence favorable to the defense if given more time. The trial court's denial of a continuance was neither arbitrary nor a violation of due process.
After the court had already reappointed Herrera as defense counsel, denied the motions for a continuance of trial upon determining there was adequate time for the defense expert to conduct analysis of the clothing, and issued an order requiring the prosecution to make such evidence available, Herrera stated that he was not ready to go to trial. Herrera did not make an express oral motion to continue trial on that ground. Herrera had been counsel of record since December 2006, except during the approximate two-month hiatus when he was advisory counsel on notice that he should be ready to step in at any time. Herrera had faced much earlier trial dates and trial had been repeatedly postponed. He had kept abreast of the case's "assessment and analysis." Herrera did not support any need for a continuance with facts specific to this case. Although trial was to begin on Monday February 11, there was time to prepare defendant and any other defense witnesses before presentation of the defense case. Assuming that Herrera impliedly requested a continuance, the trial court acted within its discretion in denying the request based upon Herrera's general complaint that he was not ready for trial. (Cf. People v. Gray (2005) 37 Cal.4th 168, 225 [counsel claimed to be unprepared to proceed with penalty phase but trial court reasonably rejected counsel's assessment in denying continuance].)
3. Order Providing Access to Prosecution's Clothing Evidence
Defendant maintains that the court's order allowing access to the prosecution's evidence, but requiring any examination and testing by the defense expert to be done under observation of prosecution's representative, left him unable to adequately prepare his defense, deprived him of his due process right to a fair trial, and infringed upon his Sixth Amendment right to counsel. He argues that the trial court's restrictions on defense testing "unnecessarily interfered with counsel's right to communicate in confidence with experts in the preparation of the defense case." Defendant argues that reversal of his conviction is required because Barnett's testimony was vital to his self-defense claim.
Defendant additionally contends that the prosecution's concerns with the chain of custody and integrity of the evidence did not justify the prosecution's failure to release the evidence because it is common practice for defense forensic experts to take possession of physical evidence for testing. Despite defendant's minimization of the prosecution's chain of custody concerns, "[c]hain-of-custody issues are present whenever physical evidence capable of submission to the jury is introduced at trial." (People v. Baldine (2001) 94 Cal.App.4th 773, 779; see People v. Riser (1956) 47 Cal.2d 566, 580-581 [chain of custody requirements], overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 649 and People v. Chapman (1959) 52 Cal.2d 95, 98.) The prosecution has the burden establishing the chain of custody on evidence it proffers (People v. Richardson (2008) 43 Cal.4th 959, 1003; see Melendez-Diaz v. Massachusetts (2009) ___ U.S. ___, ___ [129 S.Ct. 2527, 2546] ["It is the obligation of the prosecution to establish the chain of custody for evidence sent to testing laboratories-that is, to establish 'the identity and integrity of physical evidence by tracing its continuous whereabouts.' [Citation.]"]; see also People v. Lucas (1995) 12 Cal.4th 415, 445 ["it is common and proper for counsel to stipulate to the chain of custody"].) It is entirely reasonable for the prosecution to be concerned about preserving the integrity of its physical evidence and cautious about releasing that evidence in the days immediately before trial. Our focus is on whether defendant was nevertheless constitutionally entitled to pretrial access to the prosecution's physical evidence for the purpose of independent and confidential examination and testing by the defense expert.
We first note that, in the absence of any specific defense request to the court for an order allowing access to the prosecution's physical evidence on appropriate statutory (see § 1054.5) or constitutional grounds, the court had no affirmative obligation to issue any order requiring the prosecution to make physical evidence available to the defense. In addition, it appears defendant's claims that the Fourteenth and Sixth Amendments compelled the trial court to grant access to the prosecution's physical evidence for independent, confidential examination and testing by the defense expert were forfeited by failing to assert them below (see People v. Panah (2005) 35 Cal.4th 395, 435-436). Regardless, defendant's constitutional claims are without merit. We begin our analysis by noting what is not at issue here.
Defendant is not claiming that the prosecution violated any statutory discovery provision. Neither is he claiming a violation under Brady v. Maryland (1963) 373 U.S. 83, 87 (83 S.Ct. 1194), which held that "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Also, defendant has not argued or established that, as a result of the court's order, he was deprived of effective assistance of counsel under the Strickland standard or counsel under the Cronic standard.
Section 1054, subdivision (e), states: "[N]o discovery shall occur in criminal cases except as provided by this chapter, other express statutory provisions, or as mandated by the Constitution of the United States." Penal Code section 1054.1 provides in pertinent part: "The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:... [¶] (c) All relevant real evidence seized or obtained as a part of the investigation of the offenses charged.... [¶] (e) Any exculpatory evidence." A defendant and defense counsel must disclose to the prosecuting attorney the identities of witnesses to be called at trial and "any relevant written or recorded statements of those persons, or reports of the statements of those persons, including any reports or statements of experts made in connection with the case, and including the results of physical or mental examinations, scientific tests, experiments, or comparisons which the defendant intends to offer in evidence at the trial." (§ 1054.3.) A party must comply with specified statutory requirements to seek court enforcement of required disclosures. (§ 1054.5, subd. (a).) "Upon a showing that a party has not complied with Section 1054.1 or 1054.3 and upon a showing that the moving party complied with the informal discovery procedure provided in this subdivision, a court may make any order necessary to enforce the provisions of this chapter...." (§ 1054.5, subd. (b).) In general, the required disclosures must be "made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred." (§ 1054.7.) "[T]he trial court retains authority to regulate discovery to protect a defendant's constitutional rights. [Citations.]" (People v. Loker (2008) 44 Cal.4th 691, 733.) But courts "are not at liberty to create new rules, untethered to any statute or constitutional mandate." (Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107.)
Evidence is material "only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different" and a " 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." (U.S. v. Bagley (1985) 473 U.S. 667, 682 [105 S.Ct. 3375].) The prosecutor's "duty to disclose is ongoing; information that may be deemed immaterial upon original examination may become important as the proceedings progress...." (Pennsylvania v. Ritchie (1987) 480 U.S. 39, 60 [107 S.Ct. 989].) The rule does not, however, "create a broad, constitutionally required right of discovery." (U.S. v. Bagley, supra, at p. 675, fn. 7.) Under the Brady rule, "the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial...." (Id. at p. 675; see United States v. Agurs (1976) 427 U.S. 97, 111 [96 S.Ct. 2392] [prosecutor has no constitutional duty to "routinely to deliver his entire file to defense counsel"]; see also Moore v. Illinois (1972) 408 U.S. 786, 795 [92 S.Ct. 2562] ["We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case"].)
"Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. [The United States Supreme Court has] long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed 'what might loosely be called the area of constitutionally guaranteed access to evidence.' United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3447, 73 L.Ed.2d 1193 (1982). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system." (California v. Trombetta (1984) 467 U.S. 479, 485 [104 S.Ct. 2528].)
"The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. [Citations.]... A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U.S., at 87, 83 S.Ct., at 1196. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant's guilt. United States v. Agurs, 427 U.S., at 112, 96 S.Ct., at 2401. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957)." (California v. Trombetta, supra, 467 U.S. at p. 485.)
But aside from Brady v. Maryland and its progeny, "the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded...." (Wardius v. Oregon (1973) 412 U.S. 470, 474 [93 S.Ct. 2208].) Although due process does not compel adoption of discovery provisions for the benefit of criminal defendants, due process ordinarily requires any adopted discovery procedures to be "a two-way street." (Id. at p. 475 [reversal where Oregon discovery statute not reciprocal].)
"In Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977), [the United States Supreme Court] considered the due process claim of a defendant who had been convicted with the aid of surprise testimony of an accomplice who was an undercover agent. Although the prosecutor had not intended to introduce the agent's testimony, he changed his mind the day of trial. Id., at 549, 97 S.Ct., at 840-841. To keep his cover, the agent had told the defendant and his counsel that he would not testify against the defendant. Id., at 560, 97 S.Ct., at 846. [The court] rejected the defendant's claim, explaining that '[t]here is no general constitutional right to discovery in a criminal case, and Brady, ' which addressed only exculpatory evidence, 'did not create one, ' id., at 559, 97 S.Ct., at 846." (Gray v. Netherland (1996) 518 U.S. 152, 168 [116 S.Ct. 2074].)
In Ake v. Oklahoma (1985) 470 U.S. 68 [105 S.Ct. 1087], a capital case cited by defendant, the issue was whether the federal Constitution "requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question." (Id. at p. 70.) The United States Supreme Court held that "when a defendant demonstrates to the trial judge that his sanity at the time of the offense is to be a significant factor at trial, the State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." (Id. at p. 83; see id. at p. 74.) In reaching this holding, the court stated: "This Court has long recognized that when a State brings its judicial power to bear on an indigent defendant in a criminal proceeding, it must take steps to assure that the defendant has a fair opportunity to present his defense. This elementary principle, grounded in significant part on the Fourteenth Amendment's due process guarantee of fundamental fairness, derives from the belief that justice cannot be equal where, simply as a result of his poverty, a defendant is denied the opportunity to participate meaningfully in a judicial proceeding in which his liberty is at stake." (Id. at p. 76.)
Defendant asserts that "a necessary extension of [the Supreme Court's] reasoning" in Ake is that "undue restrictions [may] not be placed on the defense expert's ability to perform any necessary and authorized work [on the government's physical evidence] to support the defense case." We disagree. "The holding in Ake can be understood as an expansion of earlier due process cases holding that an indigent criminal defendant is entitled to the minimum assistance necessary to assure him 'a fair opportunity to present his defense' and 'to participate meaningfully in [the] judicial proceeding.' Ake, supra, 470 U.S., at 76, 105 S.Ct., at 1092." (Medina v. California (1992) 505 U.S. 437, 444-445.) In this case, defendant was appointed an expert, who apparently reviewed and analyzed the prosecution's evidence obtained through discovery.
The California Supreme Court has determined that neither Ake nor the guarantee of court-appointed experts necessary for preparing a defense (see Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319) created a federal constitutional right to the effective assistance of experts. (People v. Samayoa (1997) 15 Cal.4th 795, 838.)
While the United States Supreme Court clearly recognizes that the federal Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense (see Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 S.Ct. 2142]), the court has never concluded that due process requires a prosecutor to make potentially useful physical evidence available to the defense for purposes of forensic examination or testing. Even assuming that due process principles might require defense access to the government's physical evidence for the purpose of examination or testing where such examination and testing is likely to produce evidence favorable and material to the defense (cf. U.S. v. Valenzuela-Bernal (1982) 458 U.S. 858, 873 [102 S.Ct. 3440] ["Sanctions may be imposed on the Government for deporting witnesses only if the criminal defendant makes a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, in ways not merely cumulative to the testimony of available witnesses"]) or where such examination and testing is so critical to the defense that, without it, the criminal trial would be rendered fundamentally unfair (cf. Arizona v. Youngblood (1988) 488 U.S. 51, 61, conc. opn. of Stevens, J. [109 S.Ct. 333] [concluding that "there may well be cases in which the defendant is unable to prove that the State acted in bad faith [in failing to preserve potentially useful evidence] but in which the loss or destruction of evidence is nonetheless so critical to the defense as to make a criminal trial fundamentally unfair"]; Illinois v. Fisher (2004) 540 U.S. 544, 549, conc. opn. of Stevens, J. [124 S.Ct. 1200] [same]), the appellate record does not demonstrate that this is such a case.
Here, the identity of the gun and the shooter and the nature of the victim's injuries were not at issue; the issue was whether defendant had acted in self-defense. Defendant may have hoped that the results of Barnett's examination and testing of the evidence would be consistent with a close proximity struggle and reinforce his claim of self-defense but he has not shown that providing Barnett with access to the physical evidence would have likely produced evidence favorable and material to the defense. While we recognize that defendant was in a catch 22 with regard to showing the exculpatory value and materiality of Barnett's forensic examination and testing, the due process clause affords no general constitutional right to pretrial examining and testing of the prosecution's physical evidence.
As stated, the prosecution's evidence showed that Ramos suffered a very close range gunshot wound and a contact entrance gunshot wound from bullets that entered his abdomen area. No abrasive gun powder was found on the rear entry gunshot wound. No gunshot residue was found on Ramos's shirt, which suggested the gun was fired from at least three feet away.
With regard to the claimed interference with his right of effective assistance of counsel under the Sixth Amendment, defendant cites Prince v. Superior Court (1992) 8 Cal.App.4th 1176 and Alford v. Superior Court (2003) 29 Cal.4th 1033. In Prince, the trial court ordered DNA on two vaginal swabs obtained from the victim be divided to enable both parties to test the specimens, authorized each party to observe the other party's testing, and required each party to provide the other party with its report. (8 Cal.App.4th. at p. 1179.) Division One of the Fourth District Court of Appeal determined that the trial court's order deprived Prince of effective assistance of counsel because "[e]ffective assistance of counsel includes the assistance of experts in preparing a defense (Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319, 320...) and communication with them in confidence (Jones v. Superior Court (1962) 58 Cal.2d 56, 61...)." (Id. at p. 1180.) The appellate court observed: "If the test matches Prince with the crime, defense counsel will not call the expert and the case will proceed on evidence already possessed by the People as if the defense test had not been made.... If the defense test excludes Prince, the tester will surely testify and the defense will have to disclose his or her identity and provide any report to the prosecution. (See Pen. Code, § 1054.3, subd. (a); County of Los Angeles v. Superior Court (1990) 222 Cal.App.3d 647, 654-655....)" (Ibid., fn. omitted.) The Fourth District's holding in Prince applied to the testing of divisible samples of material that may be independently tested and consumed by both prosecution and defense, which is not the issue in this case.
In People v. Varghese (2008) 162 Cal.App.4th 1084, the same appellate court held that the right to counsel did not require that the defense be allowed to independently test the remainder of a blood sample, a portion of which already had been tested once by the prosecution and which could not be further divided, without sharing the test results. (Id. at pp. 1091-1092, 1095.) The appellate court described its holding in Prince: "We held the trial court's order, under the circumstances, violated Prince's constitutional right to the effective assistance of counsel. More specifically, we concluded the order unnecessarily interfered with counsel's right to communicate in confidence with experts in the preparation of the defense case." (Id. at p. 1092.) But it concluded that in this instance the trial court properly required the defense to share test results with the prosecution since the court had to protect both the prosecution and defense and complete destruction of the sample through testing would leave the prosecution unable to corroborate the findings of the prosecution expert if challenged by the defense. (Id. at p. 1095.)
In Alford v. Superior Court (2003) 29 Cal.4th 1033, which concerned a defendant's statutory Pitchess motion, the California Supreme Court stated: "Significantly in this context, the defense is not required, on pain of revealing its possible strategies and work product, to provide the prosecution with notice of its theories of relevancy of the materials sought, but instead may make an offer of proof at an in camera hearing. [Citation.] A defendant's Sixth Amendment right to the assistance of counsel in the preparation of a case for trial likewise encompasses the assistance of, and confidential communication with, experts in preparing a defense. (Prince v. Superior Court (1992) 8 Cal.App.4th 1176, 1180... [where sufficient semen sample existed to permit independent DNA testing by both prosecution and defense, prosecution expert was not entitled to observe and obtain results of defense testing].) The right logically extends to the opportunity to investigate and develop evidence generally, such as impeachment evidence of the kind at issue here." (Id. at pp. 1045-1046.) The Supreme Court concluded that the prosecution has no constitutional or statutory right to discover information disclosed to a criminal defendant in such a procedure (id. at pp. 1043-1046) but that "reciprocal discovery statutes enable the prosecution to prepare to meet the defense case whenever defense receipt of Pitchess disclosure ripens into the intent to call a witness. (See Pen. Code, § 1054.3.)" (Id. at p. 1045.)
While the California Supreme Court in Alford accepted that a defendant's Sixth Amendment right to the assistance of counsel includes the assistance of, and confidential communication with, experts in preparing a defense, the issue in this case is far different from the issue arising in Alford in the context of a Pitchess "third party discovery proceeding" (ibid.). Further, the California Supreme Court cases upon which the Fourth District relied in Prince do not establish that a defendant possesses a constitutional right of pretrial access to the prosecution's physical evidence for the purpose of independent, confidential examination and testing by a defense expert.
Corenevsky v. Superior Court, supra, 36 Cal.3d 307 indicated that the right to effective counsel included an indigent defendant's right to reasonably necessary ancillary defense services, such as assistance of an expert or an investigator. (Id. at p. 319.) Corenevsky concluded that "an indigent defendant has a constitutional right to other defense services, at county expense, as a necessary corollary of the right to effective assistance of counsel...." (Id. at p. 313.) It said nothing about access to the physical evidence under the prosecution's control.
Jones v. Superior Court of Nevada County (1962) 58 Cal.2d 56, which predated the modern reciprocal criminal discovery provisions (§ 1054 et seq.) and addressed an issue of pretrial discovery by the prosecution, determined in part: "[I]nsofar as the prosecution seeks reports made or to be made by physicians to whom petitioner 'was sent by his attorney for examination, as distinguished from advice and treatment, ' it would violate the attorney-client privilege, for such reports are communications from petitioner to his attorneys through such physicians. [Citation.]" (Id. at pp. 60-61; see Evid. Code, §§ 912 [waiver of privilege], 952 [confidential communication between client and lawyer], 954 [lawyer-client privilege].) The protection of the attorney-client privilege is not at issue here.
None of the cases cited by defendant establish that, whenever a court authorizes examination or testing of the government's physical evidence for the benefit of the defense, the Sixth Amendment right to counsel creates an absolute right to independent, confidential examination and testing by a defense expert. In People v. Cooper (1991) 53 Cal.3d 771, the trial court ordered that testing of tiny samples of blood, which "were so small they could not effectively be divided to give the defense a portion, " be done in the presence of both prosecution and defense experts. (Id. at p. 815.) The California Supreme Court rejected defendant's contention that "the court erred in not allowing independent testing of the blood samples 'in a manner consistent with the privilege against self-incrimination and the right to effective assistance of counsel.' " (Ibid.) The court stated: "Under these facts, the defendant has no right to obtain the evidence collected by the prosecution, to destroy that evidence in independent testing, and then to withhold from the prosecution the results of the testing." (Ibid.) In response to defendant's argument that "if he were compelled to inform the prosecution what tests he wanted to perform, he would be forced to implicitly divulge defense strategy" (id. at p. 816), the Supreme Court stated: "The defense was not, however, compelled to do anything. The prosecution and court allowed the defense to participate in the testing on condition that the prosecution learn the results. The defense could choose to accept the condition or not participate in the testing. Forcing such a choice does not violate the constitution or any other provision of law. (See People v. Collins (1986) 42 Cal.3d 378, 387... [forcing a defendant to make a difficult judgment whether to testify or to assert the right against self-incrimination is constitutional].)" (Ibid.)
In this case, the problem was not the indivisibility of a blood specimen but the untimeliness of the defense attempt to access the prosecution's physical evidence. At the eleventh hour before trial, the defense sought access to such evidence without complying with the applicable statutory discovery procedures. (See § 1054.5, subd. (b) [showing required for discovery order], see also § 1054.7 ["disclosures required under this chapter shall be made at least 30 days prior to the trial..."].) We reject defendant's claim that the court's order, to which defendant has not established he was entitled either as a matter of due process or statute, resulted in a violation of the Sixth Amendment right to counsel because it allowed the prosecution to be present during a last minute examination and possible testing by the defense expert, who had been appointed over six months earlier. Since the defense apparently anticipated calling Barnett as an expert witness, immediate disclosure of "any reports or statements" of Barnett "made in connection with the case" would have been required. (See §§ 1054.3, subd. (a); 1054.7; see also People v. Riggs (2008) 44 Cal.4th 248, 305 ["requirement that the defense timely disclose persons whom it 'intends to call as witnesses at trial' applies to ' "all witnesses it reasonably anticipates it is likely to call." ' [Citation.]"].) Under these circumstances, the court tried to accommodate the interests of both parties and preserve the trial schedule. The order did not infringe upon the Sixth Amendment right to counsel since defense counsel and his expert could choose whether or not to avail themselves of the opportunity provided by the court, which allowed the trial to go forward. (Cf. People v. Cooper, supra, 53 Cal.3d at p. 816.)
"If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred...." (§ 1054.7.)
D. Tattoo Evidence
1. Background
Before defendant Griffith began testifying on direct examination, the prosecutor indicated that she planned to cross-examine defendant about his tattoo "Thug for Life." She stated, "It's a statement of his that is open for cross-examination." Defense counsel objected that the evidence was "irrelevant, immaterial" and "more prejudicial than probative." The court said, "Well, it's marking yourself permanently. I assume it's a permanent mark, thug for life, and it's something that can be asked about. That's as far as I expect it to go. Do you have this tattoo? What does that mean?" The prosecutor indicated that cross-examination regarding the tattoo would depend upon defendant's testimony on direct examination and she noted that Herrera had stated in his opening statement that defendant Griffith was terrified of the deceased and she believed she could ask about that. The court replied, "We'll see, " and stated that they should meet again after direct examination and before cross examination.
No further discussion regarding the tattoo evidence occurred between direct and cross examination. During the prosecution's cross-examination of defendant, the prosecutor questioned defendant about his tattoo. Defense counsel successfully objected to the prosecutor's query, "Now, thug according to Webster's dictionary, is an assassin, isn't it?" The prosecutor then asked, "So you consider yourself a thug?" Defense counsel objected on relevancy grounds and the court overruled the objection. Defendant went on to explain without any further objection that he obtained that tattoo many years before when he was in the California Youth Authority and he did not presently view himself as a "thug for life, " although maybe he had viewed himself that way when he was younger and in 2005. When asked whether a thug is a criminal, he indicated that the term did not refer to criminality and stated: "Two Pock [sic] was a thug. He was a millionaire. He did movies, acted, rap music...." During cross-examination, defense counsel did not object to defendant's tattoo testimony on the grounds that the evidence was more prejudicial than probative (Evid. Code, § 352), it was improper character evidence (Evid. Code, § 1101, subd. (a)), or its admission violated due process.
In her closing argument, the prosecutor pointed out that defendant kept a newspaper clipping about the shooting in his jail cell and argued that he was proud of what he did. She then stated without objection: "He told you he has a tattoo that says 'Thug for Life.' Long ago he decided that this was his identity, to the point where he was going to label himself through this tattoo."
Defendant now argues that the tattoo evidence was irrelevant, more prejudicial than probative, and constituted improper character evidence and its admission violated the due process principle that only relevant evidence is admissible in a criminal trial. He also complains the prosecutor used the tattoo evidence in her closing argument to impugn defendant's character and her questions and argument were inflammatory.
2. Failure to Properly Object to Admission of Evidence
Most of defendant's evidentiary claims were not preserved for appellate review. Contrary to defendant's assertion on appeal, it does not appear from the record that the trial court made a definitive ruling regarding the scope of cross-examination regarding defendant's tattoo before defendant testified. Rather, it appears from the court's comments that, at most, it had decided that the prosecutor could ask whether defendant had such a tattoo and what the tattoo meant. The court indicated that the propriety of further prosecutorial inquiry could be discussed after direct examination; it did not expressly overrule the defense objections. In addition, defendant never objected to admission of the tattoo evidence pursuant to Evidence Code section 1101, subdivision (a). Consequently, that objection was not preserved for review on appeal. (See Evid. Code, § 353; subd. (a); see also e.g. People v. Doolin (2009) 45 Cal.4th 390, 437 [relevancy and Evidence Code section 352 objections do not preserve claim that trial court admitted evidence in violation of Evidence Code sections 1101 and 1102]; People v. Thomas (1992) 2 Cal.4th 489, 520 [claim that testimony was inadmissible character evidence under Evidence Code section 1101, subdivision (a), forfeited by failure to urge at trial].)
Evidence Code section 1101, subdivision (a), generally makes "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)" "inadmissible when offered to prove his or her conduct on a specified occasion." But nothing in section 1101 "prohibits the admission of evidence that a person committed" some act "when relevant to prove some fact... other than his or her disposition to commit such an act" or "affects the admissibility of evidence offered to support or attack the credibility of a witness." (Evid. Code, § 1101, subds. (b), (c).) "Section 1101 is concerned with evidence of a person's character (i.e., his propensity or disposition to engage in a certain type of conduct) that is offered as a basis for an inference that he behaved in conformity with that character on a particular occasion." (Cal. Law Revision Com. com., 29 B, Pt. 3 West's Ann. Evid. Code (2009 ed.) foll. § 1101, p. 221.) "Section 1101 states the general rule that evidence of character to prove conduct is inadmissible in a criminal case." (Id. at p. 222.)
Under Evidence Code section 353, subdivision (a), a defendant cannot complain on appeal about the admission of evidence unless "[t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection...." "Subdivision (a) of Section 353 codifies the well-settled California rule that a failure to make a timely objection to, or motion to exclude or to strike, inadmissible evidence waives the right to complain of the erroneous admission of evidence. [Citation.] Subdivision (a) also codifies the related rule that the objection or motion must specify the ground for objection, a general objection being insufficient. [Citation.]" (Assem. Com. on Judiciary com., 29B, Pt. 1 West's Ann. Evid. Code (1995 ed.) foll. § 353, p. 322.)
Defendant's statutory objections to the tattoo evidence did not preserve broad constitutional objections for review. (See People v. Raley (1992) 2 Cal.4th 870, 892 [rejecting] claim that admission of evidence violated state and federal constitutional rights to due process and to confront the witnesses because no objection on these specific grounds below].) Objection to the admission of evidence on grounds other than "due process" preserves only the limited due process claim that a trial court's overruling of another specific evidentiary objection was not only error but had the additional legal consequence of denying due process. (People v. Partida, supra, 37 Cal.4th 428, 435 [defendant "may argue that the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process"]; 438, fn. omitted ["to the extent defendant asserts a different theory for exclusion than he asserted at trial, that assertion is not cognizable"].) Consequently, we review the court's limited evidentiary rulings and we will also consider whether any erroneous rulings effectively denied due process.
As to the suggestion that any further objection following the relevance objection by defendant's counsel during cross-examination would have been futile, we reject it. The court did not categorically approve all questions concerning defendant's tattoo or state that tattoo evidence would be admissible under Evidence Code section 1101, subdivision (a). (Cf. People v. Hovarter (2008) 44 Cal.4th 983, 1007 [where trial court's pretrial ruling denying the motion to exclude evidence specifically referred to the hearsay rule, "defendant may have reasonably believed advancing a hearsay objection at trial would have been futile" even though he had never interposed a hearsay objection].) Rather, the court anticipated further discussion. The defense could not reasonably conclude further objection would be necessarily fruitless.
3. Relevance Objections
The court did not err in overruling the relevance objections. "As a historical matter, evidence tending to reveal a person's propensity or inclination to commit a crime was deemed inadmissible not because it was irrelevant but because it was considered too prejudicial." (People v. Hovarter, supra, 44 Cal.4th at p. 1002.) Propensity evidence " 'is [deemed] objectionable, not because it has no appreciable probative value, but because it has too much.' (Italics added.)" (People v. Alcala (1984) 36 Cal.3d 604, 631.) Thus, a relevance objection was not the proper objection to the tattoo evidence insofar as it was circumstantial evidence of defendant's propensity to commit the charged offenses.
The People argue that the tattoo was relevant to defendant's state of mind at the time of the crime: "[Defendant Griffith's] decision to mark himself permanently with a tattoo announcing he was a 'thug for life' tended to show his self-image was that he was a tough guy who was not easily intimidated, and he was not a fearful person." We agree that defendant's "Thug for Life" tattoo was circumstantial evidence of his state of mind or attitude at the time he was tattooed, which in turn arguably had some limited probative value regarding his state of mind at the time of the subsequent killing. (See Evid. Code, §§ 225 ["Statement" includes the "nonverbal conduct of a person intended by him as a substitute for oral or written verbal expression"]; 600 [defining "inference"]; 1 Jefferson, Cal. Evidence Benchbook (Cont.Ed.Bar 3d ed. 2008) Statements of State of Mind, Emotion, or Physical Sensation, §§ 14.6, 14.10, 14.11, 14.14, pp. 218-219, 221; 6 Wigmore, Evidence (Chadbourn rev. ed. 1976) §§ 1715, 1790, pp. 98-100, 320-326 [utterances as circumstantial evidence]; cf. People v. Karis (1988) 46 Cal.3d 612, 634, 636-638 [defendant's hypothetical statements that he would not hesitate to eliminate witnesses if he committed a crime, which were made three days before rape and murder of one victim and attempted murder of a witness, were circumstantial evidence of his mental state].)
4. Objection that Tattoo Evidence More Prejudicial than Probative
Defendant now suggests that the tattoo evidence was more prejudicial than probative because it was "extremely inflammatory" in addition to being "utterly irrelevant." He argues that the trial court abused its discretion in admitting the evidence and its erroneous admission denied him a fundamentally fair trial. The People maintain that the trial court did not abuse its discretion in overruling the section 352 objection. It is not at all clear that the trial court definitively overruled the section 352 objection. Where a court does not rule on an objection, "counsel's failure to obtain a ruling is fatal to defendant's appellate contention, for a party objecting to the admission of evidence must press for an actual ruling or the point is not preserved for appeal. [Citations.]" (People v. Hayes (1990) 52 Cal.3d 577, 619.) In any event, we discern no manifest abuse of discretion.
"Under Evidence Code section 352, a trial court may exclude otherwise relevant evidence when its probative value is substantially outweighed by concerns of undue prejudice, confusion, or consumption of time. 'Evidence is substantially more prejudicial than probative [citation] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome." ' (People v. Waidla (2000) 22 Cal.4th 690, 724....)" (People v. Riggs, supra, 44 Cal.4th 248, 290.) "Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Dyer (1988) 45 Cal.3d 26, 73....)... [I]ts exercise of that discretion 'must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' (People v. Jordan (1986) 42 Cal.3d 308, 316....)" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
As discussed above, evidence of defendant's tattoo was relevant circumstantial evidence. Defendant's counsel did not articulate any particular prejudice below. The tattoo was not gruesome or shocking; it was not likely to elicit an irrational or undue emotional response from the jurors. (See People v. Garceau (1993) 6 Cal.4th 140, 178, disapproved on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117-118 [evidence that uniquely tends to evoke an emotional bias against a party and has very little effect on the issues is prejudicial under Evidence Code section 352]; People v. Karis, supra, 46 Cal.3d at p. 638 ["The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence"].) The only potential prejudice was its possible use as disposition or propensity evidence, which tends to be overly persuasive. (See People v. Falsetta (1999) 21 Cal.4th 903, 915; see also People v. Karis, supra, 46 Cal.3d 612, 636 ["Evidence of a defendant's statement regarding possible future criminal conduct in a hypothetical situation has at least as great a potential for prejudice in suggesting a propensity to commit crime as evidence of other crimes"], 637-638 [But no abuse of discretion in admitting evidence over Evidence Code section 352 objection because "[t]he highly prejudicial nature of the evidence lay not in the fact that the jury might consider it as reflecting a propensity on defendant's part to commit murder, but in its [legitimate] value in identifying defendant as the perpetrator of the crimes and demonstrating his motive and mental state"].) Since defendant's state of mind was a critical issue at trial and the tattoo evidence was relevant to that issue, we discern no manifest abuse of discretion in not excluding tattoo evidence as more prejudicial than probative in advance of defendant's testimony.
Defendant was free, of course, to request a limiting instruction to protect against any possible misuse of the evidence as character evidence. (See Evid.Code, § 355.) But the trial court had no obligation, absent a defense request, to provide such a limiting instruction. (Ibid.)
Defendant also complains that the trial court failed to expressly weigh the prejudice against the probative value of the tattoo evidence. "Although the record must 'affirmatively show that the trial court weighed prejudice against probative value' [citations], the necessary showing can be inferred from the record despite the absence of an express statement by the trial court. (Ibid.)" (People v. Prince, supra, 40 Cal.4th at p. 1237.) "[T]he trial judge 'need not expressly weigh prejudice against probative value-or even expressly state that he has done so [citation].' [Citations.]" (People v. Padilla (1995) 11 Cal.4th 891, 924, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 822-823, fn. 1.) Here, defense counsel did not identify any particular
prejudice regarding defendant's potential tattoo testimony but emphasized that it was absolutely irrelevant and immaterial to the issues. It is evident from the court's comments that it found the evidence had probative value and implicitly did not find the tattoo evidence, insofar as admissible under its limited preliminary determination, more prejudicial than probative.
5. No Erroneous Evidentiary Rulings Violated Due Process
Since we have not found the trial court erroneously admitted evidence for any of the reasons actually presented to the trial court, defendant is not in the position to argue that an incorrect evidentiary ruling had the additional legal consequence of violating due process. (See People v. Boyer (2006) 38 Cal.4th 412, 441 [the reviewing court's "rejection, on the merits, of a claim that the trial court erred on the issue actually before that court necessarily leads to rejection of the newly applied constitutional 'gloss' as well" and "[n]o separate constitutional discussion is required in such cases"]; People v. Partida, supra, 37 Cal.4th 428, 436 ["To the extent, if any, that defendant may be understood to argue that due process required exclusion of the evidence for a reason different from his trial objection, that claim is forfeited"], 437-439 [defendant may argue on appeal that the trial court's error in overruling a trial objection violated due process and, if the reviewing court finds error, it then decides whether the error violated due process].)
6. Alleged Prosecutorial Misconduct in Using Tattoo Evidence
Defendant complains that the prosecutor used the tattoo evidence as bad character evidence. He states that the "prosecutor clearly used the tattoo to assert that [he] was the kind of person who would set up a robbery and then kill the victim." To the extent that defendant may be implicitly raising a claim of prosecutorial misconduct, we find the claim was forfeited because defendant did not object to the prosecutor's cross-examination or closing argument statements regarding the tattoo on prosecutorial misconduct grounds and did not request that the jury be admonished. (People v. Stanley (2006) 39 Cal.4th 913, 952; see People v. Bradford (1997) 15 Cal.4th 1229, 1378 ["Absent objection, a claim of prosecutorial misconduct in argument is not reviewable on appeal"].) While the forfeiture rule does not apply if a timely objection and request for admonition would have been futile or if an admonition would have not effectively cured the harm (People v. Hill (1998) 17 Cal.4th 800, 820), the record does not demonstrate that exception applies here.
E. Alleged Judicial Misconduct
During cross-examination, defense counsel elicited from Sandoval, who spoke through an interpreter, testimony that he had been arrested in Santa Clara County on a felony drug charge involving the drug "ice" during the previous 24 months. Sandoval claimed he had never had any problems except for that one felony arrest in Santa Clara County. Defense counsel inquired whether Sandoval had "some other problems with the law... under any name" in Fresno County. The court interrupted, "Counsel, problems with the law is too vague a category. Improper question. Next question." The line of questioning continued:
"BY MR. HERRERA [Defense Counsel]:
"Q. In Fresno County, were you convicted of any
"A. Yes.
"Q. –felony?"
As questioning continued, the court admonished witness Sandoval to wait for the question to be finished before answering. Defense counsel inquired, "So were you or were you not involved in Fresno County in a situation where someone supposedly robbed someone?" Sandoval answered, "Yes. 30 days." Upon further questioning, defendant explained, "I was beaten up, and they tried to rob me... because I was drunk. All the charges went against me, and the ones that robbed me, they didn't do anything to them." Defendant's counsel asked, "So in Fresno County, it was a charge of robbery that you had to serve some jail time for?" Sandoval answered, "Yes, " and, when defendant's counsel reminded the witness that he had claimed to have no other problems, Sandoval responded that he had not remembered.
Defendant's counsel asked, "So what other felony charges have you been involved with that you're not remembering?" After some confusion on Sandoval's part, the court stated, "Counsel, I think it would be helpful if you would establish whether he understands what felony means." Defense counsel then asked whether he was involved in a felony criminal case in Redwood City. The court intervened, "Mr. Sandoval, before you answer that, do you know what a felony is, what that word means?" Sandoval answered, "No."
Defendant's counsel then asked, "When you were involved in this Fresno case that you mentioned, did you understand that it was involving a felony charge of robbery?" Sandoval responded, "Well, yes. I had to plead guilty. They told me that I had to plead guilty. They told me I have to plead guilty... so I can get released."
Defendant's counsel then questioned Sandoval about his involvement in criminal drug charges in Fresno County. The court directed defendant's counsel not to ask whether Sandoval was "involved with charges" but told counsel that he could ask Sandoval about convictions. Defendant's counsel disagreed and asked to approach the bench.
Out of the jury's presence, defendant's counsel complained that the prosecution's witness was being cloaked with "a false sanitized aura of truthfulness" and insisted that Sandoval was subject to impeachment. The prosecuting attorney indicated that the rap sheet for the Fresno case did not reflect that Sandoval had been booked on a robbery charge. Rather, he had been convicted of violating Vehicle Code section 23152, subdivision (b) (driving with unlawful blood alcohol level) and a misdemeanor violation of Health and Safety Code section 11377, subdivision (a) (unlawful possession of a controlled substance). The prosecuting attorney did not think that Sandoval knew "what a robbery is." When the judge asked defendant's counsel why he was asking questions about a robbery, counsel indicated that he had received information from "street people" that Sandoval was involved and that Sandoval had just corroborated it.
The court asked the prosecuting attorney why she did not object to the subject of robbery because "[n]ow we have a witness who is, in the minds of the jury, a robber." The court stated, "You're asking questions that are so confusing and mixed up that nobody can tell what in the heck you're asking." The prosecuting attorney asked for Sandoval's testimony to be stricken. The court subsequently stated, "... I assumed from your question and from your lack of objection that there was something there. I would never have permitted that question. It's completely improper. [¶]... [H]e just effectively walked himself into a robbery conviction that... he certainly doesn't have." Defendant's counsel argued that "[o]ne of the things we do know, Judge, is that... running his record under a different name, they find something." The prosecuting attorney stated, "When we're talking about names, it's Antonio Figeroa Sandoval or Antonio Sandoval Figeroa." Defendant's counsel retorted, "Based on what he says thus far."
The court indicated that it was going to inform the jury that there was no evidence of any robbery. Co-defendant's counsel objected to that approach, asserting that any prosecutorial objection had been waived as untimely, witness Sandoval had admitted the conduct, and "the jury should take what he said as correct."
Still outside the jury's presence, the court warned defendant's counsel, "You, Mr. Herrera, need to be very careful about your questions, and I'm going to be jumping all over you if you ask an improper one. So if you want him impeached for a felony, you ask for convictions. Is it not a fact that you've been convicted of the following." The prosecuting attorney stated for the record that Sandoval had no felony convictions. Defendant's counsel again retorted, "Under the names now before us" and complained that he had never seen witness Sandoval's rap sheet. The judge admonished counsel, "I'm telling you, Mr. Herrera, the next time you ask a question about a felony to this witness where you don't have information that he has a felony conviction, I'm going to fine you." The judge indicated that counsel could ask about arrests, contacts, convictions related to Sandoval's knowledge about illegal drugs but warned: "Don't mix it in with accusations of crimes that he hasn't committed that you have absolutely no information that he has committed. Do it properly. You know what to do. You're an experienced lawyer. Don't pull this stuff anymore."
Back on the record, the court told the jury that it appeared Sandoval had no connection with any charge of robbery in Fresno County and had no felony convictions but it appeared that Sandoval did have "some connection with drugs and police contacts in that regard." The court stated, "I have instructed counsel to follow the rules with respect to inquiry into those matters. The jury is to disregard the colloquy between counsel and the witness concerning a robbery episode in Fresno. There is no such episode...." The following colloquy then occurred:
"MR. HERRERA [defendant's counsel]: I believe, Judge, that it would be fair to note that what the Court stated is based on the limited information now before us.
"THE COURT: It's based on adequate information as far as this court knows. You may proceed.
"MR. HERRERA: I'm sorry, Judge, but I believe that we talked about that. It's based on information that's provided regarding certain names, and it's limited to that.
"THE COURT: Counsel, I have said that the information is adequate. You don't have any information that's any different, and I've instructed you to quit behaving as though you do. Next question, please.
"MR. HERRERA: Judge, was the Court privy to the memo written by the prosecutor regarding this?
"THE COURT: Next question, please."
Cross-examination by defendant's counsel continued. During cross-examination, Sandoval consistently acknowledged many times that he had repeatedly lied to Officer Gomez. Officer Henry Gomez, a Salinas police sergeant, had responded to the homicide scene on August 21, 2005 and conducted a taped interview of Sandoval. When defendant's counsel again asked Sandoval what he said to Officer Gomez about his reason for going to the apartment, the court interjected, "He's answered that questioned maybe seven, eight times." Defendant's counsel replied, "And I would suggest, Judge, it was seven or eight different versions. I'm allowed to --." The court suggested that defendant's counsel move on and summarize Sandoval's statement to Officer Gomez. When defendant's counsel stated that this was cross-examination, the court retorted, "It doesn't mean it can be done improperly." When counsel maintained that he was not required to summarize on cross-examination, the court indicated it was "just a suggestion" and told counsel, "Don't repeat anymore [sic] questions. Ask it once, and that's it." Then the following exchange took place.
"MR. HERRERA: Judge, I can ask a question and obtain an answer. If I don't get an answer, my only solution is to ask it again. And with this witness, we've had to ask several[, ] a number of[, ] times.
"THE COURT: You've been getting answers, Counsel, and you still repeat the question three or four times.
"MR. HERRERA: We get three or four different answers. Judge, I can inquire.
"THE COURT: No. You're not getting different answers. You are getting the same answers.
"MR. HERRERA: Judge, I'm pondered [sic] by the Court's comments on the credibility of this witness. That's simply unfair, Judge."
Co-defendant's counsel asked to approach but the court did not allow him to do so. Defendant's counsel then asked witness Sandoval if everything he had said to Officer Gomez was a lie and Sandoval answered yes and he twice again indicated that he had told the officer a lot of lies. Cross-examination continued.
On appeal, defendant suggests that the court acted improperly by assuming that Sandoval was confused by the cross-examination questions related to a Fresno felony charge and by assuming Sandoval had not been charged with such felony, by criticizing defendant's counsel in front of the jury, and by "restricting his ability" to fully cross-examine Sandoval "whose credibility problems were apparent and whose testimony was crucial to the prosecution's case." He asserts that "[t]his overreaction was a violation of the court's duty to be neutral and it undermined [his] right to counsel" because it impugned his counsel's integrity. Defendant complains that the court's comments conveyed the "clear message" that "Sandoval was credible and had been manipulated by counsel to admit something counsel knew was false" and struck "a devastating blow" to the defense and violated his right to a fair trial.
"The due process clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of the case. (Bracy v. Gramley (1997) 520 U.S. 899, 904-905, 117 S.Ct. 1793, 138 L.Ed.2d 97.)" (People v. Guerra (2006) 37 Cal.4th 1067, 1111, disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151; see Johnson v. Mississippi (1971) 403 U.S. 212, 216 [91 S.Ct. 1778] (per curiam) ["Trial before 'an unbiased judge' is essential to due process"]; Tumey v. Ohio (1927) 273 U.S. 510, 523 [47 S.Ct. 437] ["it certainly violates the Fourteenth Amendment and deprives a defendant in a criminal case of due process of law to subject his liberty or property to the judgment of a court, the judge of which has a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case"].) A biased or partial trial judge is one of a limited class of constitutional errors subject to automatic reversal as a "structural error." (Neder v. U.S. (1999) 527 U.S. 1, 8 [119 S.Ct. 1827]; Johnson v. U.S. (1997) 520 U.S. 461, 468-469 [117 S.Ct. 1544] Arizona v. Fulminante (1991) 499 U.S. 279, 309-310 [111 S.Ct. 1246].)
Defendant has not shown that the judge's behavior breached the constitutional standard of judicial impartiality, through actual bias against defendant or a substantial pecuniary interest in the outcome, which would have constituted reversible per se structural error. Rather, defendant's claim is that the judge's comments constituted judicial misconduct, which violated his right to a fair trial and were not harmless under a Chapman standard of review.
As the California Supreme Court has recognized, "[a] 'trial court commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression that it is allying itself with the prosecution.' [Citations.]" (People v. Sturm (2006) 37 Cal.4th 1218, 1233.) It is not necessarily improper, however, for a trial judge to object sua sponte or otherwise interrupt and disallow numerous questions asked by defense counsel since "such interruptions or objections are certainly permissible under section 1044, which outlines the duty of the judge to control trial proceedings and to limit the introduction of evidence 'to relevant and material matters.' " (Id. at p. 1241.) The issue of judicial misconduct arises where "the trial court intervene[s] in a way that create[s] the impression that the trial judge [is] allied with the prosecution." (Ibid., see id. at p. 1244 [cumulative effect of trial judge's comments during penalty phase required a reversal of the death sentence under either Chapman or Watson standards of review].)
"As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial. [Citations.]" (Sturm, supra, 37 Cal.4th. at p. 1237.) "A defendant who deems himself injured by an act or statement of the trial judge during the trial is not permitted to keep silent in order to speculate upon the verdict and claim redress only after the latter has gone adversely to him." (People v. Mendez (1924) 193 Cal. 39, 48.) Ordinarily, the only exception is " 'when an objection and an admonition could not cure the prejudice caused by' such misconduct, or when objecting would be futile. [Citations.]" (People v. Sturm, supra, 37 Cal.4th at p. 1237.)
In this case, defendant did not timely and specifically object to the judge's remarks as judicial misconduct or request an admonition. On appeal, he has not asserted or shown that objection was futile or that an admonition would not have cured any harm. Defendant's judicial misconduct claims were not preserved for appeal.
Even if not forfeited, the claims of judicial misconduct are without merit. " 'The object of a trial is to ascertain the facts and apply thereto the appropriate rules of law, in order that justice within the law shall be truly administered.' (People v. Mendez (1924) 193 Cal. 39, 46....)... The trial court has a statutory duty to control trial proceedings, including the introduction and exclusion of evidence. (People v. Carlucci (1979) 23 Cal.3d 249, 255....) As provided by section 1044, it is 'the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.' " (People v. Sturm, supra, 37 Cal.4th at p. 1237.)
Here, both the cross-examination questions by defendant's counsel and Sandoval's responses with respect to a supposed felony or robbery charge or conviction in Fresno County were ambiguous and confusing. Defendant's counsel persisted with this line of questioning to discredit Sandoval's statement that he had no problems with the law aside from his Santa Clara County arrest. Outside the jury's presence, the prosecuting attorney confirmed that Sandoval's rap sheet did not show even that Sandoval had been booked on, no less convicted of, robbery, in the Fresno case. Defendant's counsel did not proffer any evidence that Sandoval actually had been arrested for, or charged or convicted with, robbery in Fresno under any name; he merely asserted that he had "information" from "street people." He did not show that the line of questioning produced more than speculative evidence based upon witness confusion or misunderstanding.
It does not appear that defendant's counsel was seeking to generally impeach Sandoval's credibility with evidence of a felony conviction or past misconduct evincing moral turpitude. (See People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7; People v. Castro (1985) 38 Cal.3d 301, 306 (plur. opn. of Kaus J.).)
"Evidence is irrelevant... if it leads only to speculative inferences. [Citation.]" (People v. Morrison (2004) 34 Cal.4th 698, 711; see Evid. Code, §§ 210 [defining "relevant evidence"], 350 ["No evidence is admissible except relevant evidence"].) In addition, testimony from a lay witness lacking personal knowledge of the subject matter of his testimony is inadmissible and irrelevant. (See Evid. Code, §§ 210, 702; Cal. Law Rev. Com. com., 29B, Pt. 2 West's Ann. Evid. Code (1995 ed.) foll. § 701, p. 284 ["court may exclude the testimony of a witness for lack of personal knowledge... if no jury could reasonably find that he has such knowledge"]; see also Evid. Code, § 403, subd. (a)(2) ["personal knowledge of a witness concerning the subject matter of his testimony" is preliminary fact].) Here, the trial court acted consistent with its authority under section 1044 "to limit the introduction of evidence... to relevant and material matters." "[I]t is not merely the right but the duty of a trial judge to see that the evidence is fully developed before the trier of fact and to assure that ambiguities and conflicts in the evidence are resolved insofar as possible." (People v. Carlucci (1979) 23 Cal.3d 249, 255.) "It is well recognized that the trial judge... may sua sponte exclude irrelevant evidence. [Citation.]" (People v. Sturm, supra, 37 Cal.4th at p. 1239.)
While the court was aggravated by defendant's counsel's questions about a supposed Fresno robbery, its comments made outside the presence of the jury could not have adversely influenced the jury. Even if the court's remarks to the jury that it had "instructed counsel to follow the rules" and that there was "no such [robbery] episode" implied a criticism that defendant's counsel had deliberately failed to follow the rules, it was a brief, isolated comment and not part of a pattern of disparagement of defense counsel and favoritism toward the prosecution. (See People v. Bell (2007) 40 Cal.4th 582, 605; cf. People v. Sturm, supra, 37 Cal.4th at pp. 1240-1241.)
When defendant's counsel nevertheless persisted in disputing the court's direction to disregard the colloquy between the witness and counsel regarding any robbery, the court reprimanded counsel in front of the jury, stating, "You don't have any information that's any different, and I've instructed you to quit behaving as if you do." "When an attorney engages in improper behavior, such as ignoring the court's instructions or asking inappropriate questions, it is within a trial court's discretion to reprimand the attorney, even harshly, as the circumstances require. (People v. Snow (2003) 30 Cal.4th 43, 78....)" (People v. Guerra, supra, 37 Cal.4th at p. 1111.)
Defendant cross-examined Sandoval at length about his statements to police and Sandoval consistently testified that he had lied. The court's exchange with defense counsel with regard to his continuing cross-examination of Sandoval does not demonstrate any bias against the defense. "It is settled that the trial court is given wide discretion in controlling the scope of relevant cross-examination. (See People v. Price, supra, 1 Cal.4th at p. 477.)" (People v. Farnam (2002) 28 Cal.4th 107, 187.) While "wide latitude should be given to cross-examination designed to test the credibility of a prosecution witness in a criminal case" (People v. Cooper, supra, 53 Cal.3d 771, 816), "[w]ithin the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 946, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The court's comments may be reasonably viewed as an attempt to "control all proceedings during the trial" "with a view to the expeditious and effective ascertainment of the truth regarding the matters involved." (§ 1044; see Evid. Code, § 765, subd. (a) ["The court shall exercise reasonable control over the mode of interrogation of a witness so as to make interrogation as rapid, as distinct, and as effective for the ascertainment of the truth, as may be...."].) "Moreover, a trial court's numerous rulings against a party-even when erroneous-do not establish a charge of judicial bias, especially when they are subject to review. [Citations.]" (People v. Guerra, supra, 37 Cal.4th at p. 1112.)
Our review of the record of a fairly lengthy trial does not reveal that the trial judge repeatedly belittled defense counsel in front of the jury, unduly favored the prosecution, or created the impression that it was aligned with the prosecution. (Cf. People v. Sturm, supra, 37 Cal.4th at pp. 1233-1243.) In addition, in instructing the jury, the court told the jurors that they "must decide what the facts are" and "[i]t is up to all of you and you alone to decide what happened based only on the evidence that has been presented to you in this trial." It stated, "You alone must judge the credibility or believability of the witnesses." The court specifically admonished the jury to "not take anything I've said or did during trial as an indication of what I think about the evidence, the witnesses or what your verdict should be."
"The role of a reviewing court 'is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial. [Citation.]' (People v. Snow, supra, 30 Cal.4th at p. 78....)" (People v. Harris (2005) 37 Cal.4th 310, 347.) The record before us does not establish that defendant was deprived of his constitutional right to a fair trial or an impartial judge.
The judgment is affirmed.
WE CONCUR: RUSHING, P. J., DUFFY, J.