Opinion
A160344
03-30-2023
THE PEOPLE, Plaintiff and Respondent, v. KEITH JONES Defendant and Appellant.
NOT TO BE PUBLISHED
(Contra Costa County Super. Ct. No. 05-182006-7)
MARGULIES, J.
Defendant Keith Jones appeals his conviction for felony murder, asserting the verdict must be overturned based on alleged errors in jury selection. Defendant further argues the trial court abused its discretion in admitting certain prejudicial statements, refusing to provide a limiting instruction, excluding relevant evidence regarding the victim's tendency toward violence, and admitting evidence of a witness's prior criminal conviction. We disagree and affirm the judgment.
On March 22, 2022, defendant filed an unopposed request for judicial notice of a declaration by a Contra Costa County clerk filed in his codefendant's appeal (People v. Lee, A160340). We grant this request. (Evid. Code, § 452, subd. (d).)
I.
BACKGROUND
A. Factual Background
Defendant, Luther Lee, Terry Jones, and Gloria Stevens agreed to take a trip from Georgia, where they resided, to California. Prior to leaving, Terry testified he saw Lee place two semiautomatic handguns in a box. Upon their arrival in California, Lee stated he was going to try to obtain a marijuana connection. Lee had been communicating with Austin Brown, who Lee knew from college and who had previously sold him marijuana. Brown arranged for Lee to purchase five pounds of marijuana from Oshry Elor. Lee subsequently informed Brown he would not be present for the marijuana transaction but arranged for defendant to meet with Elor for the alleged purchase.
For ease of reference, codefendant Keith Jones will be referred to as defendant, and Terry Jones will be referred to as Terry. No disrespect is intended by the use of Terry Jones's first name.
At trial, defendant and Terry provided conflicting testimony regarding the subsequent attempt to obtain marijuana. Terry testified Lee suggested a robbery involving approximately five to 10 pounds of marijuana. He further testified he agreed to drive. Terry stated he was not sure whether defendant or Lee had guns, but Lee told them," 'Don't use the guns if you don't have to.'" Defendant indicated he had it under control.
Terry was granted immunity for his testimony.
Defendant testified on his own behalf. He denied any plan to commit a robbery or any discussion about shooting. He stated he had a gun on him because "drug dealing, you know, we carry guns, you know, for our protection. So I brought a gun." Defendant further stated he brought $10,000 and planned to buy four to six pounds of marijuana.
Defendant and Terry dropped off Lee on their way to obtain marijuana. Upon arriving at Elor's house, Terry stayed in the car while defendant went inside. Defendant and Elor talked and smoked various samples for a few hours. Defendant kept asking about other types and quantities of marijuana. Defendant and Elor then smoked "moon rocks," a particularly strong form of marijuana. Defendant took approximately $300 or $400 out of his pocket and told Elor he was going to get the rest. Defendant returned to the vehicle. Terry saw defendant holding a gun at that time.
Brown, who was present during the incident, testified that when defendant returned to the house, defendant pulled a gun on Elor. Brown believed they were being robbed. Elor tried to grab defendant and they disappeared from Brown's view. Brown heard four gunshots in quick succession.
Conversely, defendant testified he started feeling ill after smoking the moon rocks, thought they had been laced, and began feeling scared. He placed his hand on his gun, and then Elor attacked him and grabbed for his gun. According to defendant, he did not intentionally shoot Elor but rather the gun discharged by accident during the struggle. Defendant opened the front door and Elor body-slammed him. Defendant then ran back to the vehicle, and he and Terry drove away.
Police arrived at the scene and found Elor suffering from gunshot wounds. He subsequently died of his injuries.
B. Procedural Background
The Contra Costa County District Attorney charged defendant and Lee with murder (Pen. Code, § 187, subd. (a); count 1), conspiracy to commit robbery (§ 182, subd. (a)(1), 211/215, subd. (c); count 2), attempted home invasion robbery (§§ 211, 213, subd. (a)(1)(A), 664; count 3), and first degree residential burglary (§ 459; count 4). The information further alleged two felony murder special circumstances as to count 1. (§ 190.2, subd. (a)(17).)
All statutory references are to the Penal Code unless otherwise noted.
The jury found defendant guilty of first degree murder on count 1, and found both felony-murder special circumstances true. Defendant also was found guilty of attempted home invasion robbery and residential burglary.
Lee was convicted of involuntary manslaughter, but that conviction is not relevant to this appeal.
The trial court sentenced defendant to life without the possibility of parole. Defendant timely appealed.
II. DISCUSSION
On appeal, defendant argues the prosecution improperly exercised peremptory challenges against Latino male jurors. Defendant further argues the trial court made various erroneous evidentiary rulings regarding the admissibility of portions of a police interview, character evidence of Elor's past violence, and a witness's prior criminal offenses. We address each argument in turn.
A. Jury Selection
Defendant contends reversal of his convictions is required because the trial court erred in denying two defense motions challenging the prosecution's use of peremptory strikes to remove three Latino male jurors in violation of Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
Although a prosecutor may exercise a peremptory challenge to strike a prospective juror" 'for any reason, or no reason at all'" (People v. Scott (2015) 61 Cal.4th 363, 387 (Scott)), he or she may not use a peremptory challenge to" 'strike prospective jurors on the basis of group bias-that is, bias against "members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds." '" (People v. Bell (2007) 40 Cal.4th 582, 596, disapproved on another ground in People v. Sanchez (2016) 63 Cal.4th 665, 686, fn. 13). Doing so violates a defendant's federal right to equal protection set forth in Batson, supra, 476 U.S. at pages 88 to 89 and his or her state right to a trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution set forth in Wheeler, supra, 22 Cal.3d at pages 276 to 277. (Accord, People v. Gutierrez (2017) 2 Cal.5th 1150, 1157.) As our Supreme Court explained in Scott, "The Batson/Wheeler framework is designed to enforce the constitutional prohibition on exclusion of persons from jury service on account of their membership in a cognizable group. It is also designed to otherwise preserve the historical privilege of peremptory challenges free of judicial control, which 'traditionally have been viewed as one means of assuring the selection of a qualified and unbiased jury.'" (Scott, at p. 387.)
A defendant bears the ultimate burden of showing a constitutional violation (People v. Lenix (2008) 44 Cal.4th 602, 612-613 (Lenix)), but courts employ a three-step, burden-shifting mechanism in assessing whether a Batson/Wheeler violation has occurred. The defendant must first "make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose in the exercise of peremptory challenges." (Scott, supra, 61 Cal.4th at p. 383.) If the trial court finds the defendant has established this prima facie case, the prosecutor must then "explain adequately the basis for excusing the juror by offering permissible, nondiscriminatory justifications." (Ibid.) Lastly, the court must make a" 'sincere and reasoned effort to evaluate the nondiscriminatory justifications'" (People v. Williams (2013) 56 Cal.4th 630, 650) and "decide whether" the prosecutor's proffered reasons are subjectively genuine or instead a pretext for discrimination (Scott, at p. 383; People v. Duff (2014) 58 Cal.4th 527, 548).
1. Background Facts
Jury selection involved three rounds of challenges until a final jury was selected. Throughout those rounds, the prosecution made 21 peremptory challenges (including alternate challenges), and the defense made 16 peremptory challenges. The final jury included two Latino jurors, including a Latino male juror, and the four alternates also included two Latinos, including a Latino male.
a. Motion No. 1-Prospective Jurors A. and M.
During voir dire, the prosecution used its third peremptory challenge to remove Prospective Juror A. At that time, defendant did not object. The prosecution's fifth peremptory was exercised against Prospective Juror M., after which defendant made a Batson/Wheeler motion. Defense counsel then explained the basis for his challenge: Prospective Juror M. was the second Latino male excused by the prosecution, and "Mr. [M.] I believed to be a juror who is right down the middle and did not say anything remotely construable as being biased against the prosecution." Defense counsel also asserted "we have very few Latino persons in this panel despite the fact that the county is 25 percent Latino. And so I'm particularly concerned about having a representative-a jury that's representative of the community."
After defense counsel made his objection, the court noted Prospective Juror M. was an "older gentleman" with an accent, who had stated on his juror questionnaire he was born in Uruguay. The court concluded it did not find a prima facie case. The court explained Prospective Juror M. was "very different" from Prospective Juror A.: "One is a very young, kind of inexperienced in life. And one is-I think he's in his mid 20s and doesn't appear in any way in appearance, in dress or style, the way he carries himself in any way similar to [Prospective Juror M.] .... [Prospective Juror M. is] an older, retired gentleman who - he has a bit of an accent . . . . And he's lived in this town for nine years. [¶] Anyway, I just-maybe it's an odd statement, but I would have never even seen those two jurors in the same category because of their appearances being so different. One is a young, fairly fair-skinned, dark-haired man, and the other one is an older man with gray hair." The court further noted: "I disagree with the assertion that there's not very many Hispanics on the panel. There appear, to me, to be many. There's certainly many with what I would classify as Hispanic-sounding last names.... [A]s I look into the jurors and the panel in the back of the room, there appears to be quite a cross section of the community. So I don't know that the Court can agree with the assertion that there's very few in the panel. On this record, no prima facie case has been shown."
Despite finding no prima facie case, the court invited the prosecution to state its reasons on the record. The prosecutor then identified two grounds for challenging Prospective Juror A. First, the prosecutor stated, "[H]e had attended his brother's criminal trial" and "gave an answer in a way that indicated that the result was very favorable to his brother, which tells me that he observed a jury trial and/or some type of motion in which his brother was acquitted. [¶] That concerned me for a number of reasons. One, he's attended the trial and was supportive of his brother, which the District Attorney's Office alleged committed a criminal violation, a criminal action. And he did not believe that his brother should have been accused of that. And he was happy with the result that ultimately, his brother was either acquitted or released on some level. That caused me to think that this is somebody that I don't think would be favorabl[y] predisposed to the People's case." Second, the prosecutor noted Prospective Juror A. "has a general lack of life experience. He's unmarried and has no children."
In connection with Prospective Juror M., the prosecutor explained "he is a-basically served in what I could discern was a professorial role at UC California, principally at CAL as a Ph.D. General practice professors in my experience are more liberal. They are less inclined to render guilty verdicts because they do not believe, generally speaking, that the criminal justice system is entirely fair." The prosecutor further noted Prospective Juror M. stated he listened to a "left-leaning podcast," called Save America.
In Prospective Juror M.'s questionnaire, he stated in response to one of the questions:" 'Difficult time understanding how an attorney can defend a person that may be guilty.' "
Defense counsel argued Prospective Juror A.'s connection to the criminal justice system was a "proxy reason" and should be considered presumptively invalid. He also asserted there is "no research that liberal people are less inclined to render guilty verdicts."
Following argument, the court denied defense counsel's Batson/Wheeler challenge and excused Prospective Juror M. The court again concluded there was no prima facie showing, but then ruled upon the prosecution's reasons. It concluded, "[T]he reasons articulated by the People are, from the Court's estimation, genuine. They are-whether I agree with them or not is not the matter. They appear to be actual reasons, that the juror's personal attendance at a court proceeding that ended in a particular way-that that is not good for the People. Just the fact that he was a witness in court proceedings in a matter, I believe those are valid reasons and the Court is making that finding. And again, whether or not the Court agrees with the reasons the People excused [Prospective Juror M.]- is relevant there appear to be valid reasons that are not based on any impermissible reason." The court denied the motion.
b. Motion No. 2-Prospective Juror G.
After the prosecution used its 13th peremptory challenge for Prospective Juror G., the defense immediately raised its second Batson/Wheeler challenge. Defense counsel argued Prospective Juror G. was the third Latino male challenged by the prosecution, and had a "very middle-of-the-road questionnaire" that, if anything, was anti-marijuana.
In response, the prosecutor asserted a prima facie case has not been demonstrated because the first two challenges to Latino jurors were "justified" and unrelated to ethnicity. As with those jurors, the prosecutor argued his challenge to Prospective Juror G. was purely related to answers on his questionnaire and not his ethnicity.
The court ultimately found a prima facie case had been demonstrated by defense counsel. The court stated it "almost" excluded Prospective Juror M. from its analysis because Prospective Juror G. and Prospective Juror A. are "quite different than the older gentleman," but noted the two other jurors are both "young," "long-time residents of this country," and "of Hispanic origin." The court then clarified it found a prima facie case "because of the two young Hispanics."
The prosecutor identified multiple reasons for excusing Prospective Juror G., including (1) "he was single" and "has no children," (2) he had checked a box on the juror questionnaire stating "he could not be fair regarding the justice system," although during voir dire Prospective Juror G. stated he had done so accidentally, and (3) he was "raised Catholic" and "believes everyone deserves a second chance."
Following argument regarding the merits of these reasons, the court concluded, "I am satisfied that the prosecutor has presented race-neutral reasons, reasons that have nothing to do with the objection that's been proposed." The court further noted: "[I]t's not whether I agree or whether the defense attorney agreed that those are good reasons or whether this person would be a good juror. That's not the standard. The standard is whether or not the prosecutor engaged in misconduct by systematically excluding a protected class from the jury. And-and at this point in time, having heard the explanation and watched the prosecutor as he gave his explanation, the Court is making a finding that his reasons are sincere and genuine and they're valid. And they-there are some reasons that would be common among law-abiding prosecutors in excluding a juror."
2. First-stage/Third-stage Review
In Scott, the California Supreme Court clarified the review procedure "when the trial court, having determined that no prima facie case was established and having heard the proffered justifications, goes ahead and makes an alternative holding that those reasons were genuine." (Scott, supra, 61 Cal.4th at p. 386, italics added.) "[W]here (1) the trial court has determined that no prima facie case of discrimination exists, (2) the trial court allows or invites the prosecutor to state his or her reasons for excusing the juror for the record, (3) the prosecutor provides nondiscriminatory reasons, and (4) the trial court determines that the prosecutor's nondiscriminatory reasons are genuine, an appellate court should begin its analysis of the trial court's denial of the Batson/Wheeler motion with a review of the first-stage ruling. [Citations.] If the appellate court agrees with the trial court's first-stage ruling, the claim is resolved. If the appellate court disagrees, it can proceed directly to review of the third-stage ruling ...." (Id. at p. 391, fn. omitted.) A trial court's ruling on a Batson/Wheeler motion generally is reviewed for substantial evidence. (Lenix, supra, 44 Cal.4th at p. 613.)
Defendant argues this court should review the rulings de novo because the trial court failed to use the correct standard and did not make sufficiently particularized findings regarding the prosecutor's justifications. We disagree.
Here, as to the motion challenging Prospective Jurors A. and M., motion No. 1, the trial court first determined no prima facie case had been established, then invited the prosecution to make a record of his reasons for excusal. As to motion No. 2, concerning Prospective Juror G., the trial court found a prima facie case "because of the two young Hispanics." The trial court invited the prosecutor to give his reasons and found them credible. Defendant challenges the court's determination on the first motion of no prima facie case of discrimination. Defendant further asserts the trial court failed to make a sincere and reasoned inquiry into the prosecutor's stated reasons as to Prospective Jurors A. and G.
3. Analysis
a. Motion No. 1-Prospective Jurors A. and M.
As to Prospective Jurors A. and M., the trial court first found a prima facie case had not been made and then invited the prosecution to make a record. After the prosecutor stated his reasons for excusing Prospective Jurors A. and M., the trial court stated it found those reasons "valid." The court then again denied the motion.
At the first stage of the Batson/Wheeler inquiry, the trial court considers whether the "totality of the relevant facts' "gives rise to an inference of discriminatory purpose." '" (Scott, supra, 61 Cal.4th at p. 384.) Although the court considers the entirety of the record of voir dire at the time the motion is made, certain types of evidence may prove particularly relevant. "Among these are that a party has struck most or all of the members of the identified group from the venire, that a party has used a disproportionate number of strikes against the group, that the party has failed to engage these jurors in more than desultory voir dire, that the defendant is a member of the identified group, and that the victim is a member of the group to which the majority of the remaining jurors belong. [Citation.] A court may also consider nondiscriminatory reasons for a peremptory challenge that are apparent from and 'clearly established' in the record [citations] and that necessarily dispel any inference of bias." (Ibid.)
Defendant argues the record supports an inference of discrimination because Prospective Juror M. would have been "an ideal juror for the prosecution" with a relative in law enforcement and a comment about" 'hav[ing] a difficult time understanding how an attorney can defend a person that may be guilty.'" However, what defendant believes makes an "ideal" juror may differ from the prosecutor, and none of defense counsel's comments address the factors identified in Scott, supra, 61 Cal.4th at page 384.
Moreover, even if we were to proceed to the third stage of the Batson/Wheeler inquiry and examine the prosecution's stated reasons for discharging Prospective Juror M., we would find no error. Defendant first asserts the prosecutor's belief that Prospective Juror M. was a professor and politically liberal "was not supported by the record." On appeal, defendant now asserts Prospective Juror M. was "a Farm Advisor at the University of California, with a degree or field of study in insect biology" and "was not a 'general practice professor[].'" Defendant argues the lack of nexus between Prospective Juror M.'s former profession and a possible disinclination to render a guilty verdict "suggests the prosecutor's stated reason was a pretext for discrimination."
While the record is unclear whether Prospective Juror M. actually served in a professorial role, in what capacity, or with which university within the University of California system he was affiliated, we decline to conclude the prosecutor misrepresented the record in such a manner as to support an inference of intentional discrimination. (Accord, People v. Silva (2001) 25 Cal.4th 345, 385.) We note defense counsel, in opposing the prosecutor's challenge, did not indicate to the trial court the prosecutor was misrepresenting Prospective Juror M.'s occupation. Rather, defense counsel only argued he was unaware of research indicating liberal people are less likely to render guilty verdicts.
Defendant next contends Prospective Juror M.'s consumption of liberal media did not support the challenge because the prosecutor accepted three other jurors who also followed liberal media sources. However, the fact that other jurors listened to or watched liberal media, alone, does not indicate discrimination. Rather, defendant must demonstrate a seated juror has a" 'substantially similar combination of responses,' in all material respects" to an excused juror. (Winbush, supra, 2 Cal.5th at p. 443, italics added by Winbush.) Defendant does not make such a showing. For example, Juror No. 1 identified MSNBC, but it was the only "liberal" media among approximately seven media sources listed, and other portions of her questionnaire suggested more conservative inclinations (e.g., membership in the Daughters of the American Revolution, which arguably may be considered a more "conservative" organization). Similarly, Jurors Nos. 111 and 160, while consuming certain liberal media, had both previously served on juries and reached verdicts, and expressed positive views toward prosecutors.
The prosecutor's main concern-whether demonstrated via Prospective Juror M.'s role at the University of California, the media he consumed, or his affiliation with a specific university-was his perceived liberal tendencies, which the prosecutor believed may make Prospective Juror M. less inclined to render a guilty verdict. A prospective juror's occupation, as well as a prospective juror's liberal tendencies are permissible, nondiscriminatory reasons for exercising a peremptory challenge. (People v. Jones, supra, 57 Cal.4th at p. 919; People v. Rushing (2011) 197 Cal.App.4th 801, 811-812; People v. Chism (2014) 58 Cal.4th 1266, 1317 [prosecutor can challenge juror based on occupation].)
Defendant argues the prosecutor's reasons must be deemed pretextual because he failed to ask Prospective Juror M., or any other juror, any questions about his occupation or political beliefs. We disagree. As our Supreme Court has held, when attorneys receive jurors' questionnaires prior to commencement of voir dire, an attorney's failure to question is less significant than when attorneys know nothing about the jurors prior to striking them. (People v. Reed (2018) 4 Cal.5th 989, 1001, citing People v. Taylor (2010) 48 Cal.4th 574, 615.) Under these circumstances, the failure to ask additional questions during voir dire about Prospective Juror M.'s employment or potentially liberal opinions does not automatically demonstrate pretext.
Defendant argues the trial court did not consider Prospective Juror M. to "fall[] within the cognizable group of Hispanics under Batson-Wheeler." We disagree, and interpret the trial court's comments as looking for potential patterns in assessing whether a prima facie case had been shown. Regardless, we agree Prospective Juror M. is a Hispanic male for purposes of this Batson/Wheeler analysis.
b. Motion No. 2-Prospective Jurors A. and G.
Although Prospective Juror A. was discussed in connection with the first motion, defendant challenges the reasons asserted for his dismissal and discusses A. with Prospective Juror G. Accordingly, we likewise discuss Prospective Jurors A. and G. together in connection with the second motion.
Defendant contends the trial court failed to make a sincere and reasoned inquiry into the prosecutor's asserted reasons for dismissing Prospective Jurors A. and G. We disagree.
Defendant argues the prosecution's proffered justification regarding Prospective Juror A.'s youth was a pretext for discrimination because other jurors accepted by the prosecution, including Jurors Nos. 23, 30, 199, and 132, were young, single, and without children. We are not persuaded. As discussed in connection with Prospective Juror M., for a comparative analysis to be probative a seated juror must have a" 'substantially similar combination of responses,' in all material respects" to an excused juror. (Winbush, supra, 2 Cal.5th at p. 443, italics added by Winbush.) "Although jurors need not be completely identical for a comparison to be probative [citation], 'they must be materially similar in the respects significant to the prosecutor's stated basis for the challenge.'" (Ibid.) Defendant has not shown Jurors Nos. 23, 30, 199, and 132 had any other responses that aligned with Prospective Juror A.'s.
In his supplemental brief, defendant relies on a medical malpractice case, Unzueta v. Akopyan (2022) 85 Cal.App.5th 67 (Unzueta), to argue that the prosecutor's reliance on Prospective Juror A.'s marital status was unlawful. The case is distinguishable.
In Unzueta, the defendant exercised peremptory challenges against two prospective jurors who had disabled family members. (Unzueta, supra, 85 Cal.App.5th at p. 76.) The defendant's justification was that the jurors might be too" 'sympathetic'" to the plaintiff, who was permanently disabled as a result of the medical care she received. (Id. at pp. 73, 76.) On appeal, the plaintiff contended having a disabled family member was a "prohibited bas[i]s for excusing the jurors under California law." (Id. at p. 78.)
The Second District Court of Appeal agreed, concluding that Code of Civil Procedure section 231.5 bars reliance on such a characteristic to remove prospective jurors. (Unzueta, supra, 85 Cal.App.5th at p. 71.) As amended effective January 1, 2017, that statute provides: "A party shall not use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of a characteristic listed or defined in Section 11135 of the Government Code, or similar grounds." (Code Civ. Proc., § 231.5; Unzueta, at p. 71.) In turn, Government Code section 11135 prohibits discrimination "on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation." (Gov. Code, § 11135, subd. (a).) These "protected bases [also] include a perception that a person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics." (Id., § 11135, subd. (d).)
Defendant asserts similar reasoning applies to striking jurors based on marital status, a characteristic also listed in Government Code section 11135. But Code of Civil Procedure section 231.5 prohibits striking a prospective juror based on "an assumption that the prospective juror is biased merely because of a [protected] characteristic" (italics added), not based on the protected characteristic itself. In Unzueta, this prohibition was violated because the defendant's counsel assumed the prospective jurors were more likely to sympathize with the plaintiff, i.e., might be biased, because they had family members with disabilities. (Unzueta, supra, 85 Cal.App.5th at p. 76.) Here, this prohibition was not violated. The prosecutor said Prospective Juror A. had "a general lack of life experience" as a result of being single, but the prosecutor never suggested the juror was biased because he was single.
Although we believe that Unzueta was correctly decided on its facts, we decline to adopt any broad suggestion in the decision that Code of Civil Procedure section 231.5 categorically, and without regard to any consideration of juror bias, prohibits using peremptory challenges "on the basis of" the protected characteristic under Government Code 11135. (Unzueta, supra, 85 Cal.App.5th at p. 71.) Whereas other case law and statutory authority independently prohibit the exercise of peremptory strikes "on the basis of" several of those characteristics, we do not read Code of Civil Procedure section 231.5 to do the same for all the characteristics listed in Government Code section 11135. (See, e.g., Code Civ. Proc., § 231.7, subd. (a) [prohibiting peremptory challenges "on the basis of the prospective juror's race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation"].)
Defendant next argues Prospective Juror A.'s support for his brother, who had been involved in a criminal case, "operates as a proxy for race." The record indicates Prospective Juror A.'s brother had been arrested, and he recalled the case favorably because it had a positive outcome for his brother. At the time of jury selection, this experience constituted a valid race-neutral reason to excuse a juror. (People v. Lomax (2010) 49 Cal.4th 530, 573 (Lomax) ["arrest of a juror or a close relative is an accepted race-neutral reason for exclusion"].)
Code of Civil Procedure section 231.7 provides that a juror's close relationship with someone who had been arrested is presumed to be an invalid reason. However, this statute was not in effect at the time of jury selection in this matter. (See Code Civ. Proc., § 231.7, subd. (i) [provision applies to "jury trials in which jury selection begins on or after January 1, 2022"].) We decline defendant's invitation to rely on the rationale behind passage of Code of Civil Procedure section 231.7 to circumvent the application of then-existing Batson/Wheeler jurisprudence. (See People v. Battle (2021) 11 Cal.5th 749, 776, fn. 9 [declining invitation to overturn Batson/Wheeler case law based on recent passage of Assem. Bill No. 3070 (2019-2020 Reg. Sess.), which revised Code Civ. Proc., § 231.7, given law has yet to take effect].)
Similarly, defendant contends the prosecutor's reason that Prospective Juror A. may be biased against the prosecution due to his brother's case was baseless because A. expressed satisfaction with the entire process and did not indicate any animosity toward law enforcement or the district attorney's office. However, when Prospective Juror A. was questioned regarding his statement that the trial was "fair," he clarified that it "went through smoothly" and it was "pretty fine how it ended." Prospective Juror A. then clarified the trial ended favorably for his brother. It thus was not unreasonable for the prosecutor to interpret Prospective Juror A.'s satisfaction with the trial as connected to the favorable resolution for his brother. The current matter is thus distinguishable from People v. Smith (2018) 4 Cal.5th 1134, 1153, in which a prospective juror felt a relative had been "treated fairly" in a criminal case despite being found guilty. Accordingly, under then-existing case law, Prospective Juror A.'s contacts with the criminal justice system constituted a race-neutral reason for the prosecutor's challenge. (See Lomax, supra, 49 Cal.4th at p. 573; accord, People v. Jones (2013) 57 Cal.4th 899, 920 [" '[A] prosecutor may reasonably surmise that a close relative's adversary contact with the criminal justice system might make a prospective juror unsympathetic to the prosecution.' "].)
As to Prospective Juror G., the prosecutor asserted he dismissed G. because he stated he was raised Catholic and believed everyone deserves a second chance. When questioned on this statement, Prospective Juror G. stated he could "probably" put aside his belief. In response to further inquiry by the prosecutor, Prospective Juror G. did not definitely state he could set aside his beliefs but rather responded in relevant part, "I don't know." The prosecutor also challenged Prospective Juror G. because, as with Prospective Juror A., G. was single and without children. These are valid reasons to challenge a potential juror. (See People v. Ervin (2000) 22 Cal.4th 48, 76 ["a 'religious bent' or bias that would make it difficult for [jurors] to impose the death penalty" constituted "a proper, nondiscriminatory ground for making a peremptory challenge"]; Lomax, supra, 49 Cal.4th at p. 575.)
Applying the same analysis we discussed regarding Prospective Juror A., we conclude that the prosecutor's reference to Prospective Juror G.'s unmarried status was permissible since it did not suggest the prosecutor assumed the prospective juror was biased because he was single.
Defendant contends the trial court's ruling nonetheless requires reversal because the prosecutor's reasons applied equally to seated jurors and his proffered reasons were pretextual. Defendant contends Prospective Juror G. stated he could be fair and impartial. But when the prosecutor provided G. with an opportunity to explain his statement regarding his religious beliefs, he failed to explicitly state he could put such religious beliefs aside. Based on Prospective Juror G.'s responses, the prosecutor could reasonably deduce G. may be impacted by his religious beliefs, even if-as defendant notes-he felt he could treat witnesses fairly. Those are separate issues. And in any event, whether Prospective Juror G. could be fair is irrelevant, because our analysis addresses peremptory challenges, not challenges for cause. (People v. Mills (2010) 48 Cal.4th 158, 176 [justification for peremptory challenge need not support challenge for cause].)
Defendant also questions whether Prospective Juror G. being single and childless supports the prosecutor's challenge. But, as explained above with Prospective Juror A., the fact that the prosecution did not challenge another juror who was also young, single, and childless does not invalidate the prosecutor's challenge to Prospective Juror G. Defendant does not identify any other areas of concern with the empaneled juror, whereas Prospective Juror G. also expressed a belief in second chances. (See Winbush, supra, 2 Cal.5th at p. 443 [seated juror must have a" 'substantially similar combination of responses,' in all material respects" to an excused juror (italics added by Winbush)].)
In sum, the prosecutor's explanations for excusing all three prospective jurors, A., M., and G., are supported by substantial evidence. (People v. Smith (2019) 32 Cal.App.5th 860, 870; People v. Mills, supra, 48 Cal.4th at p. 175.) Because none of those explanations lacked inherent plausibility or were contradicted by the record, we defer to the trial court's determination the prosecution was not motivated by a discriminatory purpose. (People v. Hardy (2018) 5 Cal.5th 56, 76.)
Defendant also argues the Contra Costa County District Attorney's office has a history of Batson/Wheeler violations. However, he cites no evidence that the prosecutor in his case was ever found to have violated Batson/Wheeler, and we note the final jury contained a male Latino juror and a male Latino juror served as an alternate. (See Castellanos v. Small (9th Cir. 2014) 766 F.3d 1137, 1149 [final composition of jury "relevant to the Batson inquiry" though not dispositive].)
C. Admission of Terry Jones's Second Police Interview
Defendant argues the trial court erred by admitting prejudicial portions of Terry's second police interview and denying a motion for mistrial. He further argues these errors violated his due process rights and requires reversal. We disagree.
1. Relevant Background
During trial, the prosecutor moved to admit Terry's second police interview. Defendant objected to certain portions of the interview. Specifically, he opposed admission of (1) Terry's description of him being "fucked up on meth" and saying he "[t]ook y'all on a high-speed chase" because he "[t]ook a whole bunch of fucking meth and lost his fucking mind" and "think he just untouchable and king of the world"; (2) a detective telling Terry that Lee does not respect him, Lee used Terry and defendant "as the pawn to get what he wanted because he's greedy," and defendant was "more down" because "[h]e's a career criminal"; (3) Terry stating he saw defendant use methamphetamine; (4) Terry stating defendant tried to steal the marijuana despite having money to pay for it because of "[g]reed"; (5) Terry describing defendant as "crazy as fuck" and "[c]razy as hell," and stating, "I hope y'all don't have me locked up around him"; (6) Terry and a detective opining defendant did not act in self-defense; (7) Terry's statement he would not hang out with defendant because he was "crazy" and did not "want to get caught up in his mess"; and (8) Terry's statement he did not want to be jailed with defendant and request about protective custody.
Apart from Terry's statements regarding his fear of defendant and protective custody, the court found the police interview admissible. The trial court noted "the cross-examination of [Terry] was particularly detailed.... And there were a lot of references to this second interview in your crossexamination." The court concluded the challenged statements were either "consistent or inconsistent or they're prior statements that were not remembered by this witness. And this witness has said 'I don't remember' many, many times to the point where it's possible that he was not being truthful every time he said that he didn't remember something." The court also noted the events discussed happened during the conspiracy.
During the prosecutor's direct examination of the detective, the prosecutor erroneously played the entire recording of the second police interview, including the section excluded by the court. The prosecutor also distributed a transcript of the interview which contained the excluded material.
Defendant objected, and the court conducted a hearing on the erroneous inclusion of these materials. The prosecutor acknowledged his error and recognized he had not offered evidence that defendant or Lee threatened or attempted to attack Terry.
Defendant argued the error was prejudicial because he was "characterized by police as a career criminal" and described multiple times as "crazy," and the net effect was that defendant was "now being seen by this jury as a violent career criminal who's crazy as fuck and will kill [Terry] if given the chance." Defendant sought a mistrial.
The court denied the request for mistrial, noting that no such motion was made after his ruling on the evidence and the admission of the excluded portion of the interview "is not even close to being cause for a mistrial." The court explained it excluded the last section of the interview because it thought Terry's statements regarding fear for his safety "might lead [the jury] to speculate that [Terry] had been threatened, and I didn't want them to engage in that speculation. But there's certainly-there's other statements made by [Terry] that he fears for his safety ...." The court agreed the prosecution's use of the excluded material violated his order, but found defendant's claims that the excerpt "bias[ed] or prejudic[ed] the jury beyond repair is a gross exaggeration." The court sustained the objection and struck that portion of the evidence. It instructed the jury as follows: "At the end of this morning's session there was an objection. I have sustained that objection. The last part of the interview had been ordered by me to be redacted at the point that the objection was inserted. And so I'm striking that portion of the interview, and you're instructed to disregard it. [¶] And furthermore, to be clear, I ruled that way because there is-and you can take this as an established fact in this case during your deliberations. There is no evidence that either [Lee] or [defendant] have in any way directly or indirectly threatened [Terry]."
Defendant subsequently moved for a mistrial. He asserted the court's admonition to the jury was insufficient in light of the court's decision to admit statements during the police interview that he was a "career criminal," "crazy as fuck," "[c]razy as hell," and did not act in self-defense. As a result of this evidence, defendant claimed, he was "irreparably prejudiced." Alternatively, defendant sought a jury instruction stating that the prosecutor's use of the redacted portion of the police interview constituted misconduct, and the jury could "infer from this misconduct that a reasonable doubt exists as to the truth of the charges in this case."
The court again denied the motion. It took issue with defendant's characterization of its prior ruling, noting the court "went [to] great length[s] to talk about the reasons why [the statements in the police interview] were admitted." The court noted defendant suggested Terry was "fabricating his testimony because of immunity" and "changed his story from first to the second to the third interview." The court further noted defendant was not "just attacking the statements of [Terry], but . . . attacking the questions of the police, the way that police conducted the interview.... And therefore, the Court probably would have been well-justified to allow all of the second interview to come in ...." The court reiterated this position, noting, "And remember the suggestion by the defense is that the police were lying to the witness to get him to say certain things to get him to go along with their story. And to then not let the jury hear the tactics used by the police when they were being accused of creating fabricated testimony is not exactly fair." The court then explained its decision to exclude Terry's statement at the end of the second interview. It noted that when Terry responded about the fear for his life, the court "thought[] to excise that portion of it rather than have a further debate" would be "so easy." The court noted it sustained the defense objection to that portion, it struck it from the record, and the jury was instructed not to consider it for any purpose. The court again concluded the prosecution's error did not prejudice the jury in light of the corrective steps taken by the court.
2. Admission of Terry's Statements
Defendant asserts the court abused its discretion in admitting the challenged portions of the police interview because the statements were improper lay opinions, improper statements of Terry's fear, and hearsay.
The Attorney General, citing People v. Homick (2012) 55 Cal.4th 816 (Homick), contends the trial court did not err in admitting the entire interview because defendant claimed the police pressured Terry into falsely changing his story to assert defendant and Lee planned a robbery rather than a marijuana purchase. The Attorney General argues playing the entire interview was necessary to provide the jury with the context from which to evaluate defendant's attack on the police's conduct during the interview. In response, defendant argues the challenged statements were not relevant because they either (1) were not made by the police to elicit incriminating responses, or (2) were unrelated to Terry's "new" story about the planned robbery.
In Homick, the defendant challenged a trial court's decision to allow the prosecutor to play a videotape of an accomplice's statement to the police to the jury. (Homick, supra, 55 Cal.4th at p. 861.) The California Supreme Court disagreed, explaining in relevant part that "the court did not err in permitting the prosecutor to play the videotape to refute [the accomplice's] claim that he was coerced into making the statement." (Id. at pp. 861-862.) Moreover, the Supreme Court concluded the court was justified in playing the entire videotape to the jury because "[the accomplice's] claim that he was coerced was not limited to certain portions of his police statement." (Id. at p. 862.)
Here, defendant asserts the police coerced Terry into changing his story and concocting the story about the robbery in order to obtain a plea deal. And defendant repeatedly raised this interpretation of the interview during trial. Defense counsel argued to the jury in his closing that the police manipulated Terry into changing his story, including stating that the "[c]ops let Terry know he is not giving the story they want" and highlighting that the officers lied to Terry about other defendants blaming Terry for the shooting. Defense counsel further emphasized to the jury that "Terry's been manipulated into saying it was a robbery plan" and then "gets a deal for four years" so "[h]e's never going to have to go to prison. And that's only after he changes the story and sticks to it." As noted by the trial court, "The mechanisms to get those statements [from Terry], that has been a big part of the defense case .... [T]here must have been 20 or 30 times it was pointed out to the jury that the police lied to this witness to get a product, to get a statement. And perfectly appropriate, perfectly necessary for the jury to see all of that and to see it in its proper context."
Additionally, defense counsel also indicated to the jury that the prosecution was hiding part of the record regarding Terry's changed story. Specifically, defense counsel described how Terry admitted to a robbery attempt only after the police pressured him and claimed he would not receive a plea deal because he was lying. Defense counsel then stated, "[T]he prosecution didn't get up and show you that part of the interview. [The police] said we're not going to make a deal .... But Terry Jones, guess what, gets a deal for four years." In light of the foregoing, the court did not err in allowing the complete interview, apart from lines 1904 to the end, to be admitted into evidence.
Defendant also argues Terry's statement that he did not believe defendant acted in self-defense usurped the jury's factfinding role and violated defendant's due process rights. However, as discussed below in part II.C.4., post, any error admitting this statement was harmless and thus did not violate defendant's due process rights.
3. Defendant's Motion for Mistrial
In ruling on defendant's objections to Terry's second police interview, the court excluded lines 1904 to the end of the interview. However, the prosecutor failed to remove that section of the interview and it was shown to the jury, both in the recording and in the transcripts provided to the jury. The court subsequently informed the jury it had sustained the objection to the last part of the interview and was "striking that portion of the interview, and you're instructed to disregard it." The court further instructed the jury, "[T]o be clear, I ruled that way because there is-and you can take this as an established fact in this case during your deliberations. There is no evidence that either [Lee] or [defendant] have in any way directly or indirectly threatened [Terry]."
Despite these instructions to the jury, defendant contends the erroneously admitted evidence "portrayed Lee and [defendant] as 'violent, crazy people who kill their own family members for testifying against them,'" which was highly prejudicial. Defendant asserts he was portrayed as a dangerous, violent criminal even if the jurors accepted the court's statements.
" '[T]he trial court is vested with considerable discretion in ruling on mistrial motions.'" (People v. Wharton (1991) 53 Cal.3d 522, 565.) We review the court's denial of a mistrial under the deferential abuse of discretion standard. (People v. Bolden (2002) 29 Cal.4th 515, 555.) "A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged." (Ibid.) In other words, "[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction." (People v. Haskett (1982) 30 Cal.3d 841, 854.) " 'Whether a particular incident is incurably prejudicial is by its nature a speculative matter.'" (Wharton, at p. 565.)
We are not persuaded it is likely that the jury would infer defendant was a violent, dangerous criminal merely from the last portion of the police interview. Moreover, the court immediately conferred with counsel after the audio was played to the jury. The court then struck that portion of the audio and transcript and instructed the jury to disregard it. Furthermore, the court also instructed the jury to take "as an established fact" that defendant had not threatened Terry. We assume the jury understood and followed these instructions. (People v. Pride (1992) 3 Cal.4th 195, 241.) Nothing in the record suggests otherwise. In light of the court's instructions and the lack of any indication of resulting prejudice, we cannot conclude the court abused its discretion in denying defendant's motion for mistrial.
4. Harmless Error
Even if we concluded the court had erred in admitting certain portions of Terry's second police interview, we conclude any such error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson) [state law error measured under reasonable probability standard]; People v. Cunningham (2001) 25 Cal.4th 926, 999 [evidentiary ruling "if erroneous, is 'an error of law merely,' which is governed by the standard of review announced in [Watson]"].) Any prejudice from Terry's beliefs about defendant's conduct, his fear of defendant, and his speculation about whether defendant acted in self-defense, was substantially mitigated by other admissible evidence, and defense counsel specifically discussed the perceived weaknesses in the evidence regarding these issues in his closing argument.
Defendant also asserts error under the federal harmless error standard in Chapman v. California (1967) 386 U.S. 18. Regardless, for the reasons set forth in this section we conclude the error was harmless under either the Chapman or Watson standard.
First, many of the disputed comments, such as being greedy, Terry's impression of the shooting, and calling defendant "crazy" came into evidence at trial independent of the second police interview. For example, Terry testified he and defendant agreed to do the robbery despite defendant having "quite a bit of money"-about $3,000 or $4,000. As testified to by Terry, defendant was not concerned with the robbery because he" 'do[es] this shit.'" Terry also testified at trial-without any objection from defendant-that he called defendant "crazy" because he "thought everybody who went to jail is crazy." He also testified-again without objection from defendant-that immediately after the shooting defendant stated he "had to shoot [Elor]. Didn't give it up." Accordingly, other evidence before the jury contained similar statements to those contested in the second police interview.
In addition, defense counsel was able to challenge these statements in his closing statement to the jury and identify any alleged lack of evidentiary support. Defense counsel extensively argued to the jury that they must "focus on" the evidence, and the evidence did not support the other disputed characterizations of defendant, such as being "crazy" or using "meth." For example, defense counsel reminded the jury they had access to relevant testimony and certain parts of defendant's criminal record from which they could assess the accuracy of the "career criminal" characterization. Defense counsel emphasized to the jury that defendant's record only contained two felony convictions for gun possession, and there was no evidence of any convictions for violence.
Defense counsel's ability to cross-examine Terry and argue the weaknesses in Terry's story and characterization of defendant during closing argument was adequate to protect defendant's right to a fair trial. (People v. Flores (2016) 2 Cal.App.5th 855, 881 ["inclusion of the legally erroneous theory was harmless beyond a reasonable doubt" in light of the evidence "and the closing arguments of counsel"]; see also People v. Walker (1986) 185 Cal.App.3d 155, 166-167 [finding that corroborative evidence and defense counsel's opportunity to discuss the weaknesses of eyewitness identifications during closing argument rendered the trial court's exclusion of expert testimony harmless error].) Moreover, other evidence in the record, such as Brown's testimony that defendant attempted to rob Elor and initiated the confrontation by drawing out his gun, supported the jury's verdict. Based on these considerations, admission of the disputed portions of the second police interview was harmless.
D. Requested Limiting Instruction
Defendant next argues the trial court prejudicially erred in refusing to provide to the jury a limiting instruction regarding use of the challenged portions of Terry's second police interview. In response, the Attorney General argues no further action by the court was required to address any error arising from the prosecution's inclusion of the redacted portion of the interview. Rather, the Attorney General asserts the court's decision to strike the testimony and instruct the jury to disregard that portion of the interview was sufficient.
1. Relevant Background
Defendant proposed the court instruct the jury as follows: "During the trial, the prosecutor presented recordings of law enforcement interrogations of Terry Jones. In those interrogations, police and/or Terry Jones stated that Keith Jones is a career criminal, is crazy, did not act in self-defense, and that Terry Jones does not want to be locked up around him. Terry Jones also provided hearsay statements of Gloria Stevens, and stated that Oshry Elor looked like an angel. This evidence was admitted only [INSERT RATIONALE FOR ADMITTING THIS EVIDENCE HERE], not for the truth of the matter. Do not assume these statements are true. Do not consider these statements for any purpose other than [PERMISSIBLE PURPOSE]."
During the discussion between the parties and the court regarding defendant's motion for mistrial, the court had explained its rationale for admitting the majority of the interview. The court stated, "[I]n th[is] case the defense was not simply attacking Terry Jones' statements to the police. [¶] There was the suggestion that he was fabricating his testimony because of immunity. There was indications [sic] that he changed his story from first to the second to the third interview. There is more than clear indication from the defense that they were not just attacking the statements of Terry Jones, but they were attacking the questions of the police, the way that police conducted the interview. The place, time, the manner, everything about the interview was being cross-examined.... [¶] . . . And remember the suggestion by the defense is that the police were lying to the witness to get him to say certain things to get him to go along with their story. And to then not let the jury hear the tactics used by the police when they were being accused of creating fabricated testimony is not exactly fair."
At that instructional conference, defense counsel noted the court's rationale for admitting the police interview as providing context for the police tactics. Defendant thus requested "that the jury be instructed that those- that was the reason for admitting those particular pieces of evidence and they're not admitted for their truth."
The court denied the request. It noted defendant highlighted in cross-examination that "police were using tactics to get somebody to change their story," and "you could point that out in your argument." The court also stated the phrase "career criminal" did not have any meaning to the jury and "prior instances of criminal conduct are to be used only for certain reasons, and . . . they've already been instructed with regards to use of that." Finally, the court explained, "With regards to [defendant] acting crazy or being crazy or being on methamphetamine, that's not character evidence. That's evidence of his actions at the time of these crimes but from the viewpoint of one of the co-conspirators" who was "able to be cross-examined."
2. Analysis
" '" '[I]n appropriate circumstances' a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case ...."' [Citation.] However, 'a trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law, is argumentative, duplicative, or potentially confusing . . . or if it is not supported by substantial evidence.'" (People v. Brugman (2021) 62 Cal.App.5th 608, 621.)
We need not resolve the question of whether the court erred in refusing to provide the pinpoint instruction. Even if we assume such an instruction should have been provided, we conclude that any such error was harmless because it is not reasonably probable that the outcome of this case would have been different if the proposed instruction had been given. (See People v. Pearson (2012) 53 Cal.4th 306, 325 [applying state law prejudice test to court's refusal to give legally correct pinpoint instruction].) As we concluded in part II.C.4., ante, admission of these statements, to the extent erroneous, was harmless. Those same reasons support a finding of harmless error in connection with the pinpoint instruction. Here, defense counsel argued in summation that the characterization of defendant as "crazy," a "meth" user, and a "career criminal" was "lacking in evidence." Defense counsel emphasized to the jury that they must "focus on" the evidence and "not let emotion cloud your impartial view." Moreover, defendant acknowledged in his opening brief "[t]he jurors apparently rejected Terry's testimony regarding a plan to commit robbery," but "believ[ed] Brown's testimony that it was an attempted robbery." Accordingly, by defendant's own admission, the jury did not rely on Terry's version of events-including that contained in the second police interview-in concluding defendant attempted to rob Elor.
In addition, the court provided certain instructions that limited the impact of Terry's testimony. Most notably, the court instructed the jury with CALCRIM No. 335, which noted Terry was an accomplice to any crimes committed and explained that the jury "may not convict [defendant] of any crimes charged based on the statement or testimony of an accomplice alone." It also provided a limiting instruction on the prosecution's evidence of illegal possession of firearms. And, finally, the court instructed the jury that "certain evidence was admitted for a limited purpose," and the jury "may consider that evidence only for that purpose and for no other."
We thus conclude any instruction by the court to limit the jury's consideration of certain statements in the second police interview for purposes of assessing whether the police coerced Terry into fabricating his story would not have altered the outcome of this case.
E. Evidentiary Rulings
Defendant next challenges various evidentiary rulings by the trial court. Specifically, he contends the trial court abused its discretion by (1) excluding certain evidence regarding Elor's past violent conduct, and (2) allowing the prosecutor to impeach certain witnesses with their past offenses. He further contends the prosecutor engaged in misconduct by taking advantage of these erroneous evidentiary rulings and such errors violated his due process rights.
1. Exclusion of Evidence Regarding Elor's Violent Behavior a. Relevant Background
Prior to trial, defendant sought to admit evidence of Elor's "violent and aggressive character" by way of prior incidents in which Elor acted violently. Defendant contends these incidents support his claim of self-defense. Of the 55 incidents identified in defendant's motion, 51 appear to be related to Elor's in-patient psychiatric care and related residential treatment programs. The records disclose Elor was diagnosed with numerous psychiatric disorders, including schizophrenia, bipolar disorder, substance-induced psychotic disorder, and multiple personality disorders. The incidents recount significant anger issues, verbal altercations, threatening behavior, and property damage. Four entries also recount physical altercations during his psychiatric care, including (1) getting into "physical altercations" with his parents "[o]n several occasions," (2) getting into "an altercation" with a peer that "almost escalated to a fistfight," (3) throwing water on a nurse, and (4) attempting to "kick staff" during a Welfare and Institutions Code section 5150 hold. Of the four nonpsychiatric care entries from defendant's motion, three involve roommates, in which Elor engaged in verbally abusive and violent behavior that involved both threatening the roommates' safety and destroying property. The fourth entry involved a statement from a roommate's friend, who stated he observed Elor arguing with marijuana customers, having tantrums, and throwing people out of the house, and physically pushing him "once or twice."
The trial court noted it was issuing a "limited" ruling based on representations that evidence at trial would suggest there was no robbery and it "was just supposed to be a marijuana purchase" that "went horribly wrong." Based on that theory, the court ruled "some evidence under [Evidence Code section] 1103 is relevant." The court also explained it "engaged in a balancing under [Evidence Code section] 352 that there is some probative value that outweighs the prejudicial effect against . . . the victim in this case." The court thus concluded defendant "can introduce evidence in the form of witnesses who can testify regarding specific instances where the victim or alleged victim while engaged in marijuana sales or transactions became aggressive or physically violent with the potential customers or other people who were present at that time." The court thus allowed defendant to offer two of the entries "that suggest[] that maybe there was some violence during a marijuana transaction" but found the probative value of the other entries were outweighed by the potential prejudicial impact against Elor due to his mental illness. The court explained defendant's proposed theory-that Elor was unpredictable on prior occasions demonstrates he must have been unpredictable on this occasion-was "insufficient" "on this record."
Defendant subsequently filed a motion for reconsideration. Defendant argued prior violent acts do not need to be similar to the charged incident to be admissible under Evidence Code section 1103. He further requested the court admit eight entries from Elor's in-patient psychiatric care that he asserted were "[r]elevant to show that [Elor's] agitation about his drug dealing escalated into aggressive, threatening, and violent behavior." (Italics omitted.)
The court denied the motion, noting it does not normally reconsider an in limine motion "without a change in the offer of proof or the change of the circumstances or facts." The court did clarify, however, that the prior evidence of violence did not have to be substantially similar to what occurred in this case, but the court had engaged in a balancing of "relevance versus prejudicial effect" when excluding certain instances of alleged violence. The court noted the parties could ask for reconsideration if one of those instances changed, but "the only thing that has changed as of this hour is that the People have given an opening statement."
During trial, the prosecution cross-examined two witnesses who testified about violent incidents involving Elor. The cross-examination elicited testimony that one argument with Elor was "like an ump and a baseball manager who are kind of going at it," and Elor did not hit the witness. That witness also testified as to a second incident, in which a youth attempted to steal from Elor, and clarified that the witness was able to separate the youth and Elor and walk the youth out of the house. The prosecutor also elicited testimony from the other witness that while he had gotten into arguments with Elor, Elor had never hit him.
Defendant again made a renewed motion to admit additional character evidence as to Elor's violence. He argued the prosecutor's cross-examination of the witnesses' testimony opened the door to additional character evidence.
The court disagreed, noting, "[Y]ou're actually further away from getting this evidence in .... [¶] I was led to believe that, perhaps, you would introduce evidence that [Elor] had attacked or acted unpredictably violent. And if anything, on this record, he, evidently, drugged or poisoned [defendant], but had not attacked him and not threatened him with any weapon or physically." The court noted that only after defendant reached for his gun did Elor advance toward him.
b. Analysis
Character or propensity evidence is generally inadmissible, subject to certain exceptions. (Evid. Code, § 1101, subd. (a).) However, "Evidence Code section 1103 authorizes the defense in a criminal case to offer evidence of the victim's character to prove his conduct at the time of the charged crime.... Consequently, in a prosecution for a homicide or an assaultive crime where self-defense is raised, evidence of the violent character of the victim is admissible to show that the victim was the aggressor." (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446-447, fns. omitted; see also People v. Wright (1985) 39 Cal.3d 576, 587.)
Nonetheless, the trial court has discretion under Evidence Code section 352 to exclude the evidence if" 'its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.'" (People v. Shoemaker, supra, 135 Cal.App.3d at p. 448.) "In conducting the careful weighing process to determine whether propensity evidence is admissible under section 352, trial courts 'must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission ....'" (People v. Kerley (2018) 23 Cal.App.5th 513, 535.) We review the court's evidentiary rulings under Evidence Code section 352 for an abuse of discretion. (People v. Scott (2011) 52 Cal.4th 452, 491.)
We find no abuse. Here, a number of factors support the trial court's decision to exclude certain incidents allegedly related to Elor's propensity for violence. First, much of the evidence defendant sought to admit related to Elor's character or propensity for harassing and engaging in verbally abusive behavior, but not necessarily for violence. Likewise, the instances of physical intimidation and violence primarily arose between Elor and individuals with whom he had close and repeated contacts, such as family, roommates, and residents and staff at various psychiatric facilities. We cannot conclude it was unreasonable for the court to distinguish these situations from Elor's conduct during a one-time marijuana transaction with a stranger. Finally, the court expressed concerns regarding the prejudicial nature of the evidence because it primarily arose from Elor's psychiatric records. In light of the lack of evidence regarding the status of Elor's mental health at the time of the incident, it was not an abuse of discretion for the court to conclude Elor's conduct prior to or during mental health treatment could have been particularly confusing or distracting to the jury.
Moreover, the trial court also noted the lack of evidence that Elor initiated the confrontation with defendant. "[I]n order for a murder victim's propensity for violence to be relevant, there must be some evidentiary support for a self-defense-type theory that the defendant perceived the murder victim as presenting an immediate threat.... [E]ven if the murder victim were the most violent person in the world, that fact would not be relevant if the evidence made it clear that the victim was taken by surprise and shot in the back of the head." (People v. Hoyos (2007) 41 Cal.4th 872, 912-913, abrogated on other grounds by People v. McKinnon (2011) 52 Cal.4th 610.) None of the evidence before the jury indicated Elor had initiated the physical confrontation. Defendant testified to reaching for his gun after having a sip of water that "tasted real funny" and getting fearful because "everybody was just, like, lookin' around, you know, kinda lookin' crazy." Likewise, Brown, a friend of Elor's who was present during the incident, described the exchange between Elor and defendant during his police interview. Brown stated defendant had gone to the car to allegedly get money, and upon his return defendant "digged in his pants and then he took out the gun. And then he pointed it at him .... And then after he pulled it out and was pointing it at [Elor], . . . it was dead silent in the room. We were all looking at each other.... And then after that, . . . [Elor], like, grabbed him kinda, or, like, tried to grab him ...." Neither defendant nor Brown identified any instance of aggression by Elor prior to defendant's decision to reach for his gun.
In light of these considerations, the court reasonably allowed defendant to present some evidence of past violence and argue a self-defense theory. But we cannot conclude it was an abuse of discretion for the trial court to exclude other evidence of violence, particularly its limitations on Elor's medical and psychiatric history.
Defendant argues the prosecution attacked the credibility of the witnesses who were allowed to testify as to Elor's past violence. We note the prosecution asked about a prior conviction as to one witness and questioned the other about the circumstances of the events being described. This questioning was similar to testimony elicited by defense counsel that Elor would "get into arguments" with customers "but I would never say like I'd seen like a fight between him and his customers." We thus disagree that the prosecution meaningfully attacked either witness's credibility.
Having concluded that the trial court properly excluded the evidence in question and did not abuse its discretion, we also conclude defendant was not denied his right to confrontation under the Sixth Amendment to the federal Constitution. (People v. Roybal (1998) 19 Cal.4th 481, 506, fn. 2 ["The superior court did not abuse its discretion; there is thus no predicate error on which to base the constitutional claims."]; People v. Brown (2003) 31 Cal.4th 518, 545 ["routine application of state evidentiary law does not implicate defendant's constitutional rights"].) Defendant's arguments are without merit.
2. Admission of Witness Brandon D.'s Prior Theft Offense
Defendant asserts the trial court abused its discretion by allowing the prosecutor to impeach Brandon D. with his prior theft conviction. Defendant argues Brandon's testimony established Elor's "character for violence," and "[t]he only purpose of the impeachment was to establish that [Brandon] was not credible and should not be believed." We disagree.
Brandon D. was a friend of one of Elor's roommates, Robert M., and testified he visited Elor's home almost daily for a few months at the end of 2017.
The record indicates the prosecutor did not challenge Brandon D.'s testimony regarding Elor's character for violence. Rather, Brandon provided "an opinion regarding [Elor's] honesty"-i.e., that Elor was dishonest. In response, the prosecutor asked about Brandon's theft conviction, which he framed as "a crime involving dishonesty." The prosecutor then questioned Brandon about the details and nature of his interactions with Elor, without any further reference to Brandon's theft conviction or his honesty. Nothing in the cross-examination challenged Brandon's testimony regarding Elor's violent behavior. Accordingly, we disagree that admission of the impeachment evidence violated Evidence Code section 352 and defendant's due process rights.
3. Alleged Prosecutorial Misconduct
Defendant also argues the prosecutor committed prejudicial misconduct by "misleading the jurors" through "exploiting the erroneous exclusion of evidence." However, this argument fails because we conclude the trial court did not err in excluding select evidence of Elor's character. We also disagree with defendant's implication that the prosecutor committed misconduct by questioning Brandon D. and Richard M. about the specific details of their interactions with Elor. The prosecutor's examination did not "obscure[e] the truth," as defendant claims, but rather solicited the actual facts regarding the scope of the witnesses' knowledge.
F. Cumulative Error
Finally, defendant argues the alleged evidentiary errors involving the admission of the second police interview, the exclusion of certain evidence regarding Elor's character, and the admission of Brandon D.'s prior conviction rendered the trial fundamentally unfair." 'Under the cumulative error doctrine, the reviewing court must "review each allegation and assess the cumulative effect of any errors to see if it is reasonably probable the jury would have reached a result more favorable to defendant in their absence."' [Citation.] 'The "litmus test" for cumulative error "is whether defendant received due process and a fair trial." '" (People v. Mireles (2018) 21 Cal.App.5th 237, 249.)
As discussed above, we have concluded that the trial court did not err. To the extent certain statements from the second police interview might have been improperly admitted and entitled to a pinpoint instruction, the error does not justify reversal for the reasons given. We therefore reject defendant's claim of cumulative error.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: HUMES, P. J., BANKE, J.