Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of San Diego County No. SCD187132, Browder A. Willis, III, Judge.
NARES, Acting P. J.
A jury convicted Adam Limbrick and R'mon Howard Anderson of first degree murder (Pen. Code, § 187, subd. (a)), attempted premeditated murder (§§ 664/187, subd. (a)), and two counts of robbery (§ 211). With respect to each of these counts, the jury found Limbrick personally used a firearm (§ 12022.5, subd. (a)) and personally discharged a firearm (§ 12022.53, subds. (c), (d)), and Anderson was vicariously armed with a firearm (§ 12022, subd. (a) (1)). Limbrick also was convicted of shooting at an inhabited dwelling (§ 246). As to both Limbrick and Anderson, the jury found to be true the special circumstance allegation the murder was committed in the commission of robbery (§ 190.2, subd. (a)(17)(A)). In a bifurcated proceeding, the trial court found that Anderson had a prior serious felony conviction (§ 667, subd. (a)(1)) and a prior serious/violent or strike conviction (§ 667, subds. (b)-(i)).
Statutory references are to the Penal Code unless otherwise specified.
The court sentenced Limbrick to state prison for life without the possibility of parole, a consecutive term of life with the possibility of parole, a consecutive enhancement of 25 years to life, and a consecutive 48-year determinate term.
The court sentenced Anderson to state prison for life without the possibility of parole, a consecutive term of life with the possibility of parole, and a consecutive determinate sentence of 28 years.
In his appeal, Limbrick contends (1) he was denied his constitutional right to a speedy trial, (2) his trial should have been severed from Anderson's trial, (3) it was prejudicial error to admit evidence of his gang association while denying evidence of Anderson's gang association, (4) the punishment of life imprisonment without the possibility of parole for a killing during a robbery is unconstitutional, and (5) the cumulative effect of the errors deprived him of a fair trial.
In his appeal, Anderson contends (1) he was deprived of a representative and impartial jury when the court erroneously granted the prosecutor's challenge for cause against prospective juror R.; (2) the robbery special circumstance enhancement as to him was not supported by sufficient evidence; (3) the prosecutor committed misconduct in her closing argument by misstating the law with respect to the special circumstance; (4) the court erred by admitting evidence of his involvement in an unrelated drive-by shooting under Evidence Code section 1101, subdivision (b); (5) the court erred by admitting evidence of bullet holes in his truck; (6) the court abused its discretion by admitting a photo of the murder victim with his young son; (7) the court should have conducted individual interviews with jurors about the inadvertent receipt of information in the jury room instead of questioning the jury in a group setting; (8) the court erred by denying his request for a continuance to prepare a motion for a new trial; (9) the cumulative effect of the errors deprived him of a fair trial; and (10) the parole revocation fine must be stricken.
Limbrick joins Anderson's arguments regarding the photograph and the juror interviews. (Cal. Rules of Court, rule 8.200(a)(5).)
FACTS
Anderson was a marijuana dealer, and his main supplier was Richie Gonzalez. Usually, Anderson bought from five to 10 pounds of marijuana from Gonzales at a time and occasionally as much as 20 pounds.
On the morning of May 20, 2004, Anderson phoned Gonzalez and asked to buy 30 pounds of marijuana. Anderson and Gonzalez spoke throughout the day about Gonzalez's progress in coming up with 30 pounds. At one point, Gonzalez told Anderson that he would not be able to get that much marijuana, but he later called Anderson and said he had been able to gather the 30 pounds. Gonzalez and Anderson agreed to meet at a Blockbuster store, even though Gonzalez usually conducted his drug transactions at his girlfriend's residence or the residence of his friend, Daniell Vasquez. Vasquez often would act as Gonzalez's bodyguard.
Phone records indicated there were 17 calls between Anderson and Gonzales from 10:34 a.m. to 8:25 p.m.
That night, however, Vasquez did not accompany Gonzalez. Rather, Gonzalez met his friend, David Diaz, at the Blockbuster parking lot before the drug transaction. Gonzalez asked Diaz to go with him while he met some friends, and Diaz agreed. Diaz was an addict, having used methamphetamine twice daily since 1992, and on that day had ingested his second dose about eight hours earlier. Diaz was the prosecution's primary witness at trial. At the time of trial, Diaz was in custody on a drug possession charge. Diaz, who used a fake name to avoid paying child support, also had a prior conviction for possessing drugs for sale and was to be deported at some point.
At approximately 8:30 p.m., Anderson arrived at the parking lot and signaled Gonzalez to follow him in his truck. As Gonzalez began to follow Anderson's vehicle, he told Diaz that he was going to sell marijuana. Gonzalez followed Anderson for about 15 minutes; neither Gonzalez nor Diaz knew where they were being led. Anderson stopped near the corner of Appian Drive and Casey Street in San Diego, and Gonzalez parked behind him.
Anderson got out of his truck as did his passengers─Limbrick and a third man wearing glasses, whom police believe was John Harris. Anderson approached the driver's side of Gonzalez's truck while Limbrick and Harris approached the passenger side, where Diaz was sitting. Harris then walked toward a grassy area; Diaz initially thought Harris was looking for a place to urinate. But Harris did not urinate and, unbeknownst to Diaz, was probably serving as a lookout.
In his testimony, Anderson said his friend Harris was with him most of the day, including during the transaction with Gonzalez. At the time of trial, Harris was at large. Diaz was not shown a photo lineup with Harris because police did not have a photograph of Harris wearing glasses. We shall refer to the third man as Harris.
Gonzalez told Anderson that he had the marijuana, which was in a box on the back seat of Gonzalez's truck. Anderson took the box of marijuana and placed it in his truck before returning to Gonzalez's truck. When Anderson returned to Gonzalez's truck, he leaned into the driver's side window and removed the keys from the ignition. At that point, Limbrick put a gun to Diaz's neck and told him, "Don't move motherfucker." Harris, who had returned from the grassy area, told Diaz the situation "was serious" and Diaz "was going to die anyway."
Harris removed Diaz from the truck and took his wallet and cell phone while Limbrick held the gun to Diaz's neck. While Limbrick ran to the back of Anderson's truck, Harris grabbed Diaz by his belt and dragged him to the same location. Diaz then saw Limbrick leaning with his left hand on the front of Gonzalez's truck while he pointed a gun toward the ground, where Gonzalez was lying.
Diaz was ordered to throw himself down on the ground next to Gonzalez. Diaz pretended to comply with the order, but ran away. Limbrick fired several shots at Diaz before shooting Gonzalez in the head and killing him. Gonzalez was lying face down in the street in a pool of blood. The cause of death was a gunshot wound near Gonzalez's left eye socket, with the bullet injuring both hemispheres of the brain, the brain stem and the cerebellum. Diaz left the murder scene without calling the police because he was in the country illegally and did not want to be arrested. Police contacted Diaz several months later after finding his phone number on Gonzalez's cell phone.
Two bullets, apparently meant for Diaz, entered the residence of the Munoz family through different windows. One bullet was found lodged in a computer, which the 13-year-old Munoz son had been using. The other bullet was found lodged in the children's bedroom closet.
Nearby residents heard the gunshots and called the police. Police responding to the scene found eight.45-caliber cartridge casings and two bullet fragments in the street near Gonzalez. All the cartridge casings came from a Glock firearm. Based on the trajectories and the placement of the casings and bullet strikes, a police detective opined the shots were fired from someone standing near Gonzalez's truck. The door to Gonzalez's truck was open; no keys were found in or near the truck. Limbrick's left palm print was found on the front hood of Gonzalez's truck with the fingers pointing toward the windshield.
At about 10 p.m., Anderson phoned Lionel Johnson, who also was a customer of Gonzalez and who had introduced Anderson to Gonzalez. Anderson told Johnson, "Don't call Richie."
The following day Anderson told Johnson: "We licked him [Gonzalez]." Johnson assumed that Anderson and others had stolen marijuana from Gonzalez. Later that day, Johnson accompanied Anderson to a garage in Encanto, where Anderson split the marijuana with Harris and Limbrick. Johnson knew Limbrick by his moniker, "Grim Reaper." Limbrick also went by the moniker "Brim Reaper" and was a documented member of the 5/9 Brim, a Blood gang in southeast San Diego.
When Johnson was in custody on another matter in September 2004, he learned from police that Gonzalez was dead. Johnson subsequently informed Anderson that Gonzales was dead and police might be looking for him. Johnson suggested that Anderson get rid of his truck and leave the area for a while.
The prosecution also presented evidence that in 2001 Anderson was driving a Nissan Sentra when the passenger fired a gun at a Toyota Camry or Corolla, which was ahead of the Sentra. A police officer witnessed this incident and pulled over the Sentra. Anderson remained in the car, but the shooter fled. Anderson told police that earlier he had fought with three Skyline Piru gang members. Anderson then picked up the shooter, a Lincoln Park gang member he knew. Anderson claimed that someone in the Toyota had fired a gun at them three times before the shooter fired in the air. At first, Anderson said he thought the gun was a starter pistol, but later admitted it was a real gun.
Testifying in his own defense, Anderson denied planning a drug rip-off or robbery and knowing Gonzalez was going to be shot. Anderson testified that when he placed the box of marijuana into his truck, he was going to return to Gonzalez's truck and pay him for the marijuana. Instead, as Anderson was exiting his truck for the second time, he heard a shot and jumped back in the truck. As more shots were fired, Anderson did not know what was happening and drove off without Harris and Limbrick. When Anderson yielded to make a right turn, Harris first and then Limbrick caught up with him and jumped into Anderson's truck. When Anderson asked Limbrick what had happened, Limbrick replied: "He moved."
Anderson testified that Limbrick had nothing to do with his planned drug purchase; he was in Anderson's truck because before Gonzalez had indicated that he had the 30 pounds of marijuana to sell, Anderson and others had made plans to go to an Indian casino that night and a mutual friend did not have room in his vehicle for Limbrick. Anderson did not know Limbrick had a firearm until they were on the way to Appian Drive and Casey Street. When Anderson looked in his rear view mirror or looked backwards at his blind spot, he saw the gun in Limbrick's lap.
Anderson testified he did not see what Limbrick or Harris were doing at the time of the shooting. Anderson denied seeing Gonzalez on the ground and going back to Gonzalez's truck and removing Gonzalez's keys from the ignition.
DISCUSSION
I. LIMBRICK'S APPEAL
A. Right to Speedy Trial
Limbrick contends he was denied his right to a speedy trial under the United States and California constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl.1.) The contention is without merit.
1. Background
Limbrick and Anderson were arraigned on November 24, 2004, on the felony complaint. After the preliminary hearing, the information was filed on April 22, 2005, but arraignment on the information was not held until June 28, 2005, because the district attorney had not yet decided whether to seek the death penalty.
On July 28, 2005, Limbrick waived time for trial until September 15, 2005. On August 3, Limbrick waived time for trial until November 8, 2005. (CT 466, 468)!
On September 15, 2005, Allen Bloom substituted in as retained counsel for codefendant Anderson and requested the motions scheduled for that day be continued to September 29, 2005.
On September 29, 2005, Bloom moved to continue the trial date to March 3, 2006, with motions to be heard on January 30, 2006. Limbrick opposed the continuance motion, refused to grant a time waiver, moved to proceed based on his rights to a speedy trial, and asked that his case be severed from Anderson's case. At that point, Limbrick had been in custody for more than 11 months, counsel noted. The trial court granted the continuance motion, finding there was good cause to continue the trial date based on Anderson's right to adequate representation by retained counsel and set January 30, 2006, as the trial date. Motions were set for January 4, 2006.
On January 4, 2006, Limbrick moved to dismiss the charges against him for speedy trial violation. The court denied the motion. Bloom moved for a continuance of the trial to March 7, 2006, on the basis of the voluminous discovery. The court found good cause to continue the trial but only until February 27, with motions set for February 2. Limbrick did not waive time for trial.
On February 17, 2006, Bloom made a motion to continue the trial until May based in part on the proposed testimony of a jailhouse informant. (See pt. II G, post.) Limbrick refused to waive time. Over the objections of Limbrick and the prosecution, the court found good cause to continue based on Bloom's need to investigate and prepare, and set the trial date as May 22, 2006. The trial court also told Limbrick that his trial would start May 22, with or without Anderson. The court denied Limbrick's request for bail to be set.
On May 12, 2006, Limbrick renewed his speedy trial motion to dismiss; the court denied the motion.
On May 19, 2006, Bloom moved for a 45- to 60-day continuance, which was opposed by Limbrick and the prosecution. Bloom said he had read an article about the effects of the drug Ecstasy and wanted to investigate this as a possible mental defense. Limbrick renewed his motion to sever the trials based on the trial court's earlier statement that his trial would start on May 22 with or without Anderson. The prosecutor opposed severance on the basis of section 1050.1. When the court indicated that it was going to sever the cases, the prosecutor immediately asked for an ex parte hearing with only Bloom and the court, excluding Limbrick's counsel. At the conclusion of the ex parte hearing, the court denied the motion to sever and granted Bloom's request for a continuance, finding good cause. The court set the new trial date for June 12, 2006. Limbrick did not waive time.
This ex parte hearing is the subject of Limbrick's second assignment of error and will be discussed in part I B, post.)
On June 9, 2006, the court found good cause to continue the trial to June 20 because of a medical emergency requiring surgery for Limbrick's trial counsel. Limbrick waived time.
On June 15, 2006, the court, over Limbrick's objection, found good cause to continue the trial date to September 18 because Limbrick's counsel was taking longer than expected to recover from surgery. Limbrick personally refused to waive time.
On September 18, 2006, the trial was trailed to October 2 because of scheduling conflicts with the court calendar.
On October 2, 2006, the trial was trailed to October 10 as to Limbrick and October 16 as to Anderson. Limbrick renewed his motions to dismiss for speedy trial violations and to sever his case from Anderson's.
On October 10, 2006, after the prosecution withdrew its request for dual juries, the court continued the trial to October 16.
On October 16, 2006, the parties began selecting a jury and the trial started.
According to Limbrick, his trial was delayed more than 11 months (343 days) beyond the date he last waived time, with 74 days attributed to his counsel's injury, surgery and recovery. According to the Attorney General, the trial was delayed nine months.
2. Analysis
The Sixth Amendment to the United States Constitution and article 1, section 15 of the California Constitution guarantee a criminal defendant the right to a speedy trial in part to protect the defendant's interest in a fair trial by preventing unwarranted delays that compromise his or her defense through the dulling of memories or the loss of witnesses or evidence. (People v. Martinez (2000) 22 Cal.4th 750, 767-768.)
The two chief differences between the federal and the state right to a speedy trial are (1) the point when the right to a speedy trial attaches, and (2) the showing a defendant must make to obtain a dismissal for a violation of the speedy trial right. (People v. Martinez, supra, 22 Cal.4th at pp. 754-755.) Only the second distinction is relevant in a post-accusation case such as this one.
The federal speedy trial right attaches with the filing of "either a formal indictment or information or... the actual restraints imposed by arrest and holding to answer a criminal charge." (United States v. Marion (1971) 404 U.S. 307, 320.) Under the California Constitution, the speedy trial right is triggered by the filing of a felony complaint. (People v. Martinez, supra, 22 Cal.4th at p. 754.)
Under our state Constitution, prejudice is not presumed, and the defendant must affirmatively show prejudice to secure a dismissal for denial of the right to a speedy trial. (People v. Martinez, supra, 22 Cal.4th at p. 755.) In contrast, under the federal constitution, "delay that is 'uncommonly long' triggers a presumption of prejudice[; hence], a defendant can establish a speedy trial claim under the Sixth Amendment without making an affirmative demonstration that the government's want of diligence prejudiced the defendant's ability to defend against the charge." (Ibid.) The presumption of prejudice under the federal right to a speedy trial arises when the delay exceeds "customary promptness" and prompts a four-part balancing test. (Doggett v. United States (1992) 505 U.S. 647, 651-652).
In Barker v. Wingo (1972) 407 U.S. 514, 530 (Barker), the United States Supreme Court set forth the following four-part balancing test: The length of the delay, the reason for the delay, the defendant's assertion of his right to a speedy trial, and the prejudice to the defendant. No one of the four factors constitutes a "necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." (Id. at p. 533.) "Rather, they are related factors and must be considered together with such other circumstances as may be relevant." (Ibid.)
"The term... 'presumptive prejudice' does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry [into the remaining relevant factors]." (Doggett v. United States, supra, 505 U.S. at p. 652, fn. 1.) Or, as the Barker court explained: "The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance." (Barker, supra, 407 U.S. at p. 530.) "[L]ower courts have generally found postaccusation delay 'presumptively prejudicial' at least as it approaches one year." (Doggett v. United States, supra, at p. 652, fn. 1.) However, courts have often found delays exceeding one year are not. (See, e.g., United States v. Colombo (1st Cir. 1988) 852 F.2d 19, 26 [24 months]; United States v. Davenport (11th Cir. 1991) 935 F.2d 1223, 1240 [22 months]; United States v. Molina (1st Cir. 2005) 407 F.3d 511, 533 [18 months].) Limbrick contends, and we assume, without deciding, that the delay of 11 months as calculated by Limbrick─or even the nine months as calculated by the Attorney General─is presumptively prejudicial.
Regarding the second factor, the Barker court noted:
"Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." (Barker, supra, 407 U.S. at p. 531, fn. omitted.)
Our review of the record shows most of the delay in this case was caused by the need of Anderson's counsel to familiarize himself with the case after he substituted in shortly before the trial was to start. Anderson's counsel successively asked for continuances to adequately investigate and prepare, often citing the large amount of discovery to be studied. In ruling on the continuance requests by Anderson's counsel, the trial court was presented with two competing and conflicting constitutional interests. In addition to providing the right to a speedy trial, the Sixth Amendment provides a criminal defendant's with the right "to have the Assistance of Counsel for his defence." (U.S. Const., 6th amend.; Gideon v. Wainwright (1963) 372 U.S. 335, 339.) "It has long been recognized that the right to counsel is the right to the effective assistance of counsel." (McMann v. Richardson (1970) 397 U.S. 759, 771, fn. 14.) The trial court was aware of the nature of these conflicting rights and, although it granted Anderson's continuance requests, it did so with continuances of a shorter duration than Anderson sought.
Under federal law, the unavailability of counsel for a codefendant is a valid reason for delay. Recognizing that joint trials serve the public interest, federal courts have held that delays due to the legitimate needs of codefendants and their counsel in a joint trial militate against a defendant's speedy trial claim. (United States v. Vega Molina, supra, 407 F.3d at pp. 532-533 ["busy trial schedules" of codefendants' counsel in protracted, complex joint trial constituted "excellent reasons for delaying the trial"]; United States v. Davenport, supra, 935 F.2d at pp.1239-1240 [problems facing codefendants' counsel, "such as unavailability, inadequate time to prepare, and conflicts of interest," were "at worst, neutral reasons" for delay].)
Limbrick would have had the trial court solve the conflict between his Sixth Amendment right to a speedy trial and Anderson's Sixth Amendment right to effective assistance of counsel by severing their trials. However, under federal law the government's decision to conduct joint trials does not weigh against the government. (United States v. Davenport, supra, 935 F.2d at p. 1240.) Generally, "defendants who are jointly indicted should be tried together." (Ibid.)
Under the circumstances and considering the federal preference for joint trials, continuing the trial to accommodate Anderson's Sixth Amendment right to effective assistance of counsel was reasonable. The second Barker factor─the reasons for the delay─do not favor a finding of a violation of Limbrick's Sixth Amendment right to a speedy trial.
It is not disputed that Limbrick repeatedly objected to continuing his trial and asserted his right to a speedy trial. In considering the significance of a defendant's assertion of his speedy trial right under the Barker analysis, a court may "weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection." (Barker, supra, 407 U.S. at p. 529, italics omitted.) Limbrick's objections were by no means pro forma. The third Barker factor─the defendant's assertions of his right to a speedy trial─weighs in Limbrick's favor.
The fourth Barker factor is prejudice. Prejudice for purposes of the Barker analysis is assessed "in the light of the interests of defendants which the speedy trial right was designed to protect." (Barker, supra, 407 U.S. at p. 532.) These interests are: (1) preventing oppressive incarceration of the defendant while awaiting trial, (2) minimizing the defendant's anxiety and concern due to the continuing pendency of unresolved criminal charges, and (3) limiting the possibility that the defense will be impaired. (Ibid.) "Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past." (Ibid.)
Limbrick contends the delay prejudiced his defense because (1) the gun used in the shooting was not linked to the case until after the trial was started and (2) Anderson's ability to maximize Limbrick's culpability while minimizing his own seemingly improved from the time of Anderson's postarrest statements to police and his trial testimony. The evidence against Limbrick was overwhelming. At most, the discovery of the gun had a de minimis impact on the trial. Limbrick's suggestion that the delay was responsible for Anderson's testimony being harmful to him is speculative at best. In any event, we need only look at the guilty verdicts the jury rendered against Anderson to see that the jury did not find Anderson's testimony credible. We conclude the delay had minimal, if any, effect on Limbrick's ability to present his defense.
Although Limbrick has shown the length of the delay was presumptively prejudicial and he consistently asserted his right to a speedy trial, the delay was for a valid reason (so that codefendant's counsel could adequately prepare for trial), and there was no actual prejudice. After balancing all four Barker factors, we conclude there was no violation of Limbrick's Sixth Amendment speedy trial right.
The California Constitution guarantees a criminal defendant's right to a "speedy public trial." (Cal. Const., art. 1, § 15.) Section 1382 interprets the state constitutional right to a speedy trial. (People v. Johnson (1980) 26 Cal.3d 557, 561 (Johnson); People v. Martinez, supra, 22 Cal.4th at p. 766 [the statutory speedy trial rights are "'supplementary to and a construction of the state constitutional speedy trial guarantee'"].) Section 1382 provides that absent a showing of good cause, waiver or consent, a defendant accused of a felony is entitled to a dismissal of charges if the matter is not brought to trial within 60 days of arraignment. (§ 1382; Johnson, at p. 563.) What constitutes good cause to continue a trial depends on the circumstances of each case, and the issue is reviewed on appeal under an abuse of discretion standard. (Johnson, at p. 570; Hollis v. Superior Court (1985) 165 Cal.App.3d 642, 645.)
Examples of good cause include delay caused by the defendant's conduct, delay for the defendant's benefit, delay arising from unforeseen circumstances, including the unavailability of a witness, of a codefendant, of a judge or of defense counsel. (See Johnson, supra, 26 Cal.3d at p. 570 & fns. 13-15; Townsend v. Superior Court (1975) 15 Cal.3d 774, 783-784.) Among other things, courts also have found good cause under section 1382 for delay in bringing a criminal case to trial because the defendant is on trial for murder in another city (People v. Gates (1987) 43 Cal.3d 1168, 1190-1192) and for delay attributable to a codefendant's need for a continuance to adequately prepare for trial. (Greenberger v. Superior Court (1990) 219 Cal.App.3d 487, 492, 500-501..) Good cause does not include delay attributable to the prosecution or lack of judicial resources. (Johnson, supra, at p. 571; People v. Wilson (1963) 60 Cal.2d 139, 145; Sanchez v. Superior Court (1982) 131 Cal.App.3d 884, 887; Batey v. Superior Court (1977) 71 Cal.App.3d 952, 956-957.)
The issue becomes more complicated in multidefendant cases where the right to a speedy trial for one defendant is in conflict with the statutory mandate for joint trials. Section 1098 provides that when "two or more defendants are jointly charged with any public offense, whether felony or misdemeanor, they must be tried jointly, unless the court order[s] separate trials." Also, following the passage of Proposition 115 in 1990, a second statute─section 1050.1─underscores the law's preference for joint trials. Under section 1050.1, if good cause exists to continue the trial of a codefendant, then good cause exists to continue the trial of the other defendant to maintain joinder. The statute allows the prosecutor to move for a continuance of all defendants if a continuance for good cause is granted to any of the defendants so as to maintain the joinder. (§ 1050.1.) The only exception for granting severance in such a case would be if "it appears to the court... that it will be impossible for all defendants to be available and prepared within a reasonable period of time." (Ibid.)
There is also a constitutional provision in favor of joint trials. "This Constitution shall not be construed by the courts to prohibit the joining of criminal cases as prescribed by the Legislature or by the people through the initiative process." (Cal. Const., art. 1, § 30, subd. (a).)
Even before the enactment of section 1050.1, courts have found the need to maintain joinder can constitute good cause to continue a trial beyond the 60-day period. In Ferenz v. Superior Court (1942) 53 Cal.App.2d 639, the appellate court found good cause to continue the defendant's trial beyond 60 days over his objection. (Id. at p. 643.) The prosecution presented affidavits in support of the continuance showing that nine defendants were jointly charged in a conspiracy to violate sedition laws and it was desirable and necessary to try them together because the trial required 50 witnesses, several from out-of-town, and would take eight to 10 weeks. (Id. at p. 641.) In Hollis v. Superior Court, supra, 165 Cal.App.3d 642, four defendants were charged with murder, and three defendants moved for a continuance because counsel needed more time to prepare for trial. Hollis refused to waive time, demanded trial as originally scheduled and sought to dismiss the information as to him when his trial was continued. (Id. at p. 644.) The appellate court found the trial court did not abuse its discretion in continuing the trial; it properly balanced the competing interests in joint trials and the right to a speedy trial in a substantial and complex case. (Id. at p. 646.) "Where a continuance is granted to a codefendant upon good cause, the rights of other jointly charged defendants are generally deemed not to have been prejudiced." (Ibid.)
Greenberger v. Superior Court, supra, 219 Cal.App.3d 487, was a multidefendant murder trial in which defendant Greenberger refused to waive time, although her codefendants moved to continue trial based on a need for pretrial investigation. Greenberger was ultimately tried six months beyond the statutory time. The Court of Appeal found good cause to continue the trial over her objection to maintaining the joinder. (Id. at p. 501.) The court recognized that the preference for a joint trial "encompasses varied and significant interests. So significant, in fact, that they may serve as counterweights to a defendant's right to confront witnesses [citation], his privilege against self-incrimination [citation], his right to exclude prejudicial character evidence [citation], and others [citations]." (Id. at p. 499.) "[I]f the precipitating cause for trial delay is justifiable, such as codefendants' need to adequately prepare for trial, then the section 1098 joint trial mandate constitutes good cause to delay the trial of an objecting codefendant." (Id. at p. 501, fn. omitted.) The Court of Appeal found that good cause existed based on a consideration of factors including length of delay, seriousness of charges, complexity of the case, prejudice to the defendant, the reason for the delay, witness hardship, and the burden on the courts. (Id. at pp. 502, 505-506.)
Limbrick relies on Sanchez v. Superior Court, supra, 131 Cal.App.3d 884 and Arroyo v. Superior Court (2004) 119 Cal.App.4th 460 for the proposition that a defendant's speedy trial rights trump a prosecution's demand for joinder. The reliance is misplaced. Sanchez v. Superior Court, supra, 131 Cal.App.3d 884, predated Proposition 115 and the enactment of section 1050.1. Arroyo v. Superior Court, supra, 119 Cal.App.4th 460, is inapposite to this case because it did not involve the proper application of section 1050.1. Defendant's trial was continued over his objection beyond 60 days from the date of his arraignment solely to permit a joint trial with a codefendant, who had not been arraigned until the day before defendant's trial date. (Arroyo v. Superior Court, supra, at pp. 462-463.) Since the codefendant's trial was not continued for good cause─it was not continued at all─section 1050.1 was not applicable; it did not provide good cause to continue defendant's trial. (Arroyo v. Superior Court, supra, at p. 464.) Hence, Arroyo v. Superior Court is not controlling here.
Nonetheless, Limbrick contends that all of the continuances granted here were without cause and particularly attacks the continuance granted on May 19, 2006, which came after the court had essentially told Limbrick three months earlier there would be no more continuances that would affect him, and, if necessary, his case would be severed from Anderson's. However, it was at the May 19, 2006 hearing that the prosecutor pointed out that under section 1050.1 the continuance should be granted and joinder maintained. Instead of granting a 45-day to 60-day continuance as requested by Anderson's counsel, the court continued the case for one month, which was "reasonable time" under section 1050.1.
Finally, we note that Limbrick has not shown prejudice from the delay, which is a requisite under state law. A defendant who has been tried and convicted and is asserting a state speedy trial claim must show that the delay caused prejudice. (People v. Martinez, supra, 22 Cal.4th at p. 769; see also Cal. Const., art. VI, § 13.) As discussed ante, Limbrick cannot do this.
B. Ex Parte Hearing
Limbrick contends his rights to counsel and to be present at court proceedings were violated when the court held an ex parte meeting with the prosecutor and Anderson's counsel. We agree.
1. Background
On May 19, 2006, Anderson's counsel requested a continuance of 45 to 60 days to investigate a mental defense based on his client's drug use. Counsel acknowledged he should have thought of this potential defense earlier. The deputy district attorney indicated there was "one issue that [she did] want to put on the record and [she] believe[d] it need[ed] to be outside of the presence of [Limbrick's counsel] and Mr. Limbrick." The deputy district attorney noted that the matter could wait, and the court said he would hear it after argument on Anderson's motion for a continuance. Legal arguments in favor of and against the continuance motion resumed. When the court indicated it would grant the continuance, the deputy district attorney interrupted and urged the court not to do so. The deputy district attorney cited section 1050.1 and argued that when good cause supported the continuance motion of a defendant the court should not sever his trial from that of the codefendant. The prosecutor also argued the continuance motion was a ploy to obtain separate trials, and she renewed her request to put something on the record outside the presence of Limbrick and his counsel. However, in asking for the in camera hearing, she offered no reason for the hearing other than the court "need[ed] to know another fact" before it made its decision on severance. The court immediately granted the prosecution's request for an in camera hearing without Limbrick and his attorney.
During the ex parte conference, the prosecutor revealed that Anderson's counsel had offered to have his client plead guilty to second degree murder with a 15-year-to-life sentence in exchange for testifying against Limbrick, but the offer had been rejected. The prosecutor argued, among other things, that it was only after the rejection of the offer that Anderson's counsel proposed a 45- to 60-day continuance to explore the new defense. The prosecutor characterized the continuance motion as an attempt to force a severance. The prosecutor also emphasized the mandatory language of section 1050.1. After Anderson's attorney denied the prosecutor's insinuations, the court declared it was not going to sever the trial and would continue the trial. At that point, Limbrick's counsel was brought into the conference. The court explained that it was not severing the trial and was granting the continuance to protect Anderson's right to an adequate defense, but for a shorter time than requested. Back in the courtroom, the court said:
"I have to publicly reverse myself from what I was intending initially based on some added conversation in chambers. Ms. Daly [the prosecutor] persuaded the court that my view of the situation related to the nature in which this case would unfold was incorrect and that the actual benefit would be to maintain the [joint trial] and not sever this matter."
Limbrick's counsel objected and argued that his client had been denied his constitutional right to be present and to be represented by counsel. Counsel asked that the ex parte conference be transcribed and made part of the appellate record. Counsel also moved for a new trial based in part on the basis of Limbrick's right to a public trial.
2. Analysis
Generally, proceedings held in chambers and outside the presence of a party are disfavored. (People v. Ayala (2000) 24 Cal.4th 243, 262.) "'Two basic defects are typical of ex parte proceedings. The first is a shortage of factual and legal contentions. Not only are facts and law from the defendant lacking, but the moving party's own presentation is often abbreviated because no challenge from the defendant is anticipated at this point in the proceeding. The deficiency is frequently crucial, as reasonably adequate factual and legal contentions from diverse perspectives can be essential to the court's initial decision....'" (Ibid.)
In criminal cases, when a party is excluded from an in camera hearing, serious constitutional problems can arise, including a criminal defendant's right to counsel under both the state and federal Constitutions. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; Gideon v. Wainwright (1963) 372 U.S. 335, 339-345; People v. Koontz (2002) 27 Cal.4th 1041, 1069.)
"The right of a criminal defendant to an adversary proceeding is fundamental to our system of justice. [Citations.] This includes the right to be personally present and to be represented by counsel at critical stages during the course of the prosecution. [Citation.] This is not mere idle formalism. Our system is grounded on the notion that truth will most likely be served if the decisionmaker─judge or jury─has the benefit of forceful argument by both sides....
"There are, to be sure, occasional departures from this norm. The district judge makes an ex parte review of the prosecution's evidence to determine whether it falls within the rule of Brady v. Maryland [(1963), 373 U.S. 83, 87]. [Citations.] Also, the district judge normally considers on an ex parte basis whether to reveal to the defense the identity of a government informant. [Citation.] But, as these examples illustrate, situations where the court acts with the benefit of only one side's presentation are uneasy compromises with some overriding necessity, such as the need to act quickly or to keep sensitive information from the opposing party. Absent such compelling justification, ex parte proceedings are anathema in our system of justice and... may amount to a denial of due process." (U.S. v. Thompson (9th Cir. 1987) 827 F.2d 1254, 1258-1259, fn. omitted.)
Although the trial court has broad discretionary power to control the proceedings in the courtroom; it must, in exercising its discretion, be impartial and must assure that the defendant is afforded a fair trial. (People v. Cline (1998) 60 Cal.App.4th 1327, 1334.) Thus, in the criminal justice system, adversary proceedings " 'are the norm,' " and " 'ex parte proceedings [are] the disfavored exception.' " (People v. Ayala, supra, 24 Cal.4th at p. 263, quoting U.S. v. Thompson, supra, 827 F.2d at p. 1257.)
When a court invokes its power to exclude a party from an in camera hearing, there should be "a compelling showing of necessity." (People v. Sahagun (1979) 89 Cal.App.3d 1, 25.) In agreeing to hold such an in camera hearing, the court must recognize its exercise of discretion "virtually obliterates as to one party all of the basic and fundamental rights [incorporated] in our concept of a fair trial[,]" including the right to be present during all important stages of the proceedings and the right to be heard in meaningful argument. (Ibid.)
At no point did the deputy district attorney provide a legitimate reason for the ex parte hearing. Initially, the deputy district attorney indicated there was "one issue that [she did] want to put on the record and [she] believe[d] it need[ed] to be outside of the presence of [Limbrick's counsel] and Mr. Limbrick." Later, when she believed the court would grant the requested continuance and sever the trials, the deputy district attorney again asked for an in camera hearing without Limbrick and his counsel. Her only explanation was the court "need[ed] to know another fact" before it made its decision on severance. Neither the request nor the deputy district attorney's unforthcoming remark was sufficient. The deputy district attorney was required to go further and explain why it was necessary to hold an in camera hearing in which one of the parties was excluded. It would have then been up to the court to decide if an in camera hearing excluding one defendant and his counsel was proper. Since the prosecutor did not offer an explanation, the court should have requested one or an offer of proof. But the court did not do that. Without exercising any discretion at all, the court granted the in camera hearing. This was error.
For instance, in this case she could have alluded to negotiations between her office and Anderson's counsel without betraying legitimate confidential information.
As it turned out, there was no legitimate need for the in camera hearing. The deputy district attorney's disclosure of Anderson's unsuccessful plea negotiations to the court was not only irrelevant, but inappropriate as well. When a judge is informed about plea negotiations, it can detract from the judge's ability to remain detached and neutral as the proceedings continue. We are not saying that the disclosure had that effect here; nothing in the record so indicates. We "must assume that the trial court was not influenced by irrelevant matters." (People v. Warren (1959) 175 Cal.App.2d 233, 247; In re Contreras (1975) 45 Cal.App.3d 549, 555.)
A denial of counsel at a critical stage of the proceedings when the denial may have affected the substantial rights of the accused gives rise to a presumption that the trial was unfair. (United States v. Cronic (1984) 466 U.S. 648, 659.) "Only the most compelling showing to the contrary will overcome the presumption." (People v. Knighten (1980) 105 Cal.App.3d 128, 133.) Because any such error implicates a fundamental federal constitutional right, a reviewing court must reverse unless the error is harmless beyond a reasonable doubt. (Ibid.)
Despite the error in excluding Limbrick and his counsel from the in camera hearing, we are convinced beyond a reasonable doubt that he would have been in no better position had the ex parte hearing not taken place. Regardless of whether Limbrick's trial would have been severed from Anderson's trial, the evidence of Limbrick's guilt was devastating. Diaz placed Limbrick at the scene and identified him as the shooter. Diaz's testimony was corroborated by Limbrick's left handprint being found on the hood of Gonzalez's truck where Diaz testified he saw him place his hand─near the center of the front of the hood with the fingers pointed toward the windshield. Lionel Johnson identified Limbrick and Harris as the two individuals who split Gonzalez's marijuana with Anderson the day after the shooting. Anderson's testimony that Limbrick was the shooter was superfluous, and we are convinced its absence in a separate trial would not have garnered Limbrick a better result. With or without Anderson's testimony, the prosecution had overwhelming evidence to convince a jury beyond a reasonable doubt that Limbrick was guilty. We conclude that the erroneous ex parte hearing from which Limbrick and his counsel were excluded was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
C. Motions To Sever Trial
Limbrick contends the trial court erred by denying his repeated motions to sever his trial from Anderson's trial. Limbrick argues severance was required because he and Anderson had conflicting, antagonistic defenses, and Anderson's testimony and statements to police precluded Limbrick's acquittal. The contention is without merit.
Limbrick moved for severance on September 29, 2005, November 14, 2005, January 4, 2006, May 19, 2006, October 2, 2006 and October 10, 2006. On January 4, 2006, the prosecution opposed Limbrick's severance motion and moved for dual juries. The prosecution's motion was granted. On October 10, 2006, after the prosecution withdrew its request for dual juries, Limbrick again moved unsuccessfully for severance.
As our Supreme Court recently observed:
"The Legislature has expressed a preference for joint trials. [Citation.] Section 1098 states that multiple defendants jointly charged with a felony offense 'must be tried jointly, unless the court order[s] separate trials.' This rule applies to defendants charged with ' "common crimes involving common events and victims." ' " (People v. Carasi (2008) 44 Cal.4th 1263, 1296.)
Limbrick's and Anderson's case was "a '"classic case"' for a joint trial" because they were charged with " 'common crimes involving common events and victims.' " (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 40.)
Our standard of review for denial of a severance motion is abuse of discretion─"a deferential standard based on the facts as they appeared when the ruling was made. [Citation.] A ruling that was correct when made will stand unless joinder causes such ' " 'gross unfairness' " ' as to violate defendant's due process rights." (People v. Carasi, supra, 44 Cal.4th at p. 1296.) "Even if the court abused its discretion in refusing to sever, reversal is unwarranted unless, to a reasonable probability, defendant would have received a more favorable result in a separate trial." (People v. Avila (2006) 38 Cal.4th 491, 575.)
Severance may be proper when there is "an incriminating confession, prejudicial association with codefendants, likely confusion from evidence on multiple counts, conflicting defenses, or the possibility that at a separate trial a codefendant would give exonerating testimony." (People v. Massie (1967) 66 Cal.2d 899, 917, fns. omitted.) Put another way, severance may be appropriate if " 'there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.' " (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 40.)
Codefendants have antagonistic defenses when the acceptance of one codefendant's defense "precludes the other['s] acquittal." (People v. Carasi, supra, 44 Cal.4th at p. 1296.) "[S]eparate trials may be ordered in the face of antagonistic defenses." (Ibid., italics omitted.) However, a "joint trial is not unfair simply because the codefendants 'have antagonistic defenses and one defendant gives testimony that is damaging to the other and thus helpful to prosecution.' " (People v. Keenan (1988) 46 Cal.3d 478, 500; see also People v. Tafoya (2007) 42 Cal.4th 147, 162 ["antagonistic defenses do not per se require severance even if codefendants are hostile or attempt to cast the blame on each other"].) "If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials 'would appear to be mandatory in almost every case.' " (People v. Hardy (1992) 2 Cal.4th 86, 168, italics omitted.) Severance is proper on the ground of antagonistic or conflicting defenses, if it is " 'demonstrated that the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.' " (Ibid.) However, severance is not required "[w]hen... there exists sufficient independent evidence against the moving defendant, [and] it is not the conflict alone that demonstrates his or her guilt...." (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.)
In this case, antagonistic defenses did not compel severance because there was strong and ample independent evidence against Limbrick apart from Anderson's testimony and statements. Limbrick was placed at the scene and identified as the shooter by Diaz. Limbrick's left handprint was found on the hood of Gonzalez's truck where Diaz testified he saw him place his hand─near the center of the front of the hood with the fingers pointed toward the windshield. Lionel Johnson identified Limbrick and Harris as the two individuals who split Gonzalez's marijuana with Anderson the day after the shooting. Therefore─and notwithstanding Limbrick's attempts to discredit Diaz because of his addiction and criminal history─other evidence, including substantial physical evidence, corroborated Diaz's testimony, which was devastating to Limbrick. No gross unfairness resulted from the joint trial. (See People v. Avila, supra, 38 Cal.4th at pp. 574-576.) Further, given the strong and ample independent evidence against Limbrick, it was clearly not the conflict with Anderson alone that demonstrated his guilt. (People v. Coffman and Marlow, supra, 34 Cal.4th at p. 41.)
This factual background of this case is similar to that presented in People v. Alvarez (1996) 14 Cal.4th 155, 178, 179-180, in which Alvarez asked the codefendant to drive him to a particular location, where he committed an attempted robbery and stabbed the victim to death. The codefendant did not deny her presence or the fact that Alvarez committed the attempted robbery and murder, but claimed she did not know Alvarez's intent and accompanied him out of fear. Notwithstanding the conflicting defenses, our Supreme Court upheld the trial court's rejection of Alvarez's severance motion and found he was not deprived of a fair trial. (Id. at p. 190 & fn. 6.)
We conclude there was no gross unfairness and no denial of a fair trial or due process resulting from the rejection of Limbrick's motions to sever. Even if we were to find an abuse of discretion in the denial of the severance motions that rose to the level of a federal constitutional violation, reversal would not be warranted under Chapman v. California, supra, 386 U.S. at page 24, given the overwhelming independent evidence of Limbrick's guilt.
D. Admission of Evidence of Gang Membership
Limbrick contends the trial court erred by admitting evidence of his gang membership in the 5/9 Brim criminal street gang and his moniker "Grim Reaper" or "Brim Reaper." The contention is without merit.
"[E]vidence of a defendant's criminal disposition is inadmissible to prove he committed a specific criminal act." (People v. Williams (1997) 16 Cal.4th 153, 193; Evid. Code, § 1101, subd. (a); People v. Champion (1995) 9 Cal.4th 879, 922, overruled on another point in People v. Combs (2004) 34 Cal.4th 821, 860.) "[A]dmission of evidence of a criminal defendant's gang membership creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged." (People v. Williams, supra, at p. 193.) However, evidence of gang membership is relevant and admissible if it tends "'logically, naturally, and by reasonable inference'" to, among other things, fortify the testimony of witnesses who have identified the defendant as a participant in the crime. (People v. Champion, supra, at pp. 921-922 [when gang membership evidence is relevant to an issue such as identity, its admission does not amount to proof of guilt by association]; Evid. Code, § 201, subd. (b).) "Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative." (People v. Avitia (2005) 127 Cal.App.4th 185, 192.)
Such evidence is subject to a balancing test and should be excluded if its probative value is outweighed by its substantial prejudicial effect. (Evid. Code, § 352.) "[T]he decision on whether evidence, including gang evidence, is relevant, not unduly prejudicial and thus admissible, rests within the discretion of the trial court." (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225.) The admission of gang evidence over an Evidence Code section 352 objection will not be disturbed on appeal unless the trial court's decision exceeds the bounds of reason. (People v. Brown (2003) 31 Cal.4th 518, 547.)
Limbrick's gang membership and moniker were relevant to the issue of identity because Johnson testified that the day following the shooting he observed Anderson dividing the stolen marijuana with "Adam," whom Johnson also knew as the "Grim Reaper" and "JJ." Johnson's "Grim Reaper" testimony established that the "Adam" dividing the stolen marijuana with Anderson and "JJ" was Adam Limbrick. Johnson's testimony corroborated eyewitness Diaz's testimony that Limbrick was at the shooting scene. Limbrick complains that Johnson was not aware of Limbrick's moniker until after the events in 2004, but that fact does not affect the corroborating effect of Johnson's testimony. The prosecution was entitled to prove its case and especially to prove a fact so central to guilt or innocence as Limbrick's identity as the shooter.
Moreover, the court gave a limiting instruction cautioning the jury to consider the Grim Reaper testimony only for the purpose of identification and not for any other purpose. We presume the jury followed the court's instruction (People v. Hovarter (2008) 44 Cal.4th 983, 1005), which dispelled the potential the jury would convict Limbrick based on his gang affiliation rather than on the affirmative admissible evidence of his guilt of the substantive offenses. To the extent that Limbrick now complains the limiting instruction did not go far enough, he should have made a request for amplification or clarification in a timely manner to the trial court. (People v. Medina (1990) 51 Cal.3d 870, 892.)
Limbrick attacks various questionable grounds for admitting the gang evidence, which the trial court stated at times. This need not concern us. "[W]e review the correctness of the trial court's ruling, not the reasons underlying it." (People v. Koontz, supra, 27 Cal.4th at p. 1075, fn. 4.) Inasmuch as the evidence was admissible on the issue of identity and the trial court properly instructed on this use of the evidence, there was no error.
Limbrick also claims it was inequitable to allow admission of his gang affiliation and exclude evidence of Anderson's gang affiliation. We disagree. Limbrick was a documented gang member while Anderson was not, according to police records. Further, Anderson's identity was not a disputed issue while the identity of Limbrick was. (Evid. Code, §§ 210, 350.)
We conclude that the trial court did not abuse its discretion by admitting the gang evidence against Limbrick for its limited purpose. The gang evidence was more probative than prejudicial for the limited purpose of identification for which it was admitted. (Evid. Code, § 352; People v. Carter (2003) 30 Cal.4th 1166, 1195-1196.)
Assuming arguendo that it was error to admit the gang evidence, we would find any error harmless. The applicable standard of prejudice is that articulated in People v. Watson (1956) 46 Cal.2d 818, 836; that is, whether it is reasonably probable a more favorable result would have been obtained by appellant in the absence of the claimed errors. (People v. Champion, supra, 9 Cal.4th at p. 923.) There is no reasonable probability that the jury would not have convicted Limbrick had it not heard the evidence of Limbrick's gang moniker and membership. The evidence of Limbrick's guilt was overwhelming. Limbrick's left handprint on the hood of Gonzalez's truck unequivocably placed him at the scene of the murder. In light of this devastating evidence, we are unpersuaded by Limbrick's prejudice argument that the gang evidence was pivotal in bolstering Diaz's identification evidence, which was shaky because of his background.
E. Special Circumstance
Limbrick contends the special circumstance of murder committed while the defendant is engaged in a robbery (§ 190.2, subd. (a)(17)(A)) is unconstitutionally vague as applied to him─the actual killer─because the law does not make any meaningful distinction between first degree felony murder based on robbery and the robbery-murder special circumstance. As we understand Limbrick's argument, it relies on (1) the lack of an intent requirement for the actual killer under the felony-murder special circumstances and the concomitant intent requirement for the aider and abettor to a felony murder, and (2) the dual use of the underlying felony. We reject this contention.
To comply with the Eighth Amendment, a state's capital punishment scheme must include an "objective basis for distinguishing" a capital case from a noncapital case. (People v. Crittenden (1994) 9 Cal.4th 83, 154; see also Godfrey v. Georgia (1980) 446 U.S. 420, 433.) "A legislative definition lacking 'some narrowing principle' to limit the class of persons eligible for the death penalty and having no objective basis for appellate review is deemed to be impermissibly vague under the Eighth Amendment." (People v. Bacigalupo (1993) 6 Cal.4th 457, 465.) The special circumstances contained in section 190.2, subdivision (a) perform the narrowing function, which limits the sentence of death or life without the possibility of parole to a small subclass of murderers. (People v. Crittenden, supra, 9 Cal.4th at pp. 154-155.) Here, the applicable special circumstance is the robbery-murder special circumstance of section 190.2, subdivision (a)(17)(A)─one of 12 specified felony-murder special circumstances found in section 190.2, subdivision (a)(17).
The purpose of the felony-murder rule "is to deter felons from killing negligently or accidentally [in the course of a felony] by holding them strictly responsible [for such killings]." (People v. Washington (1965) 62 Cal.2d 777, 781.) The doctrine attributes malice aforethought to the felon who kills in the perpetration of an inherently dangerous felony. (Id. at p. 780.) Our Supreme Court has consistently rejected the claim that the felony-murder special circumstances do not adequately narrow the class of persons subject to the death penalty or life imprisonment without the possibility of parole. In People v. Anderson (1987) 43 Cal.3d 1104, 1146-1147, our Supreme Court held the Eighth Amendment was not an impediment to subjecting the actual killer in a felony murder to the death penalty.
"Whether or not we approve of the wisdom of the statutory classification [of felony murder], it appears to be generally accepted that by making the felony murderer but not the simple murderer death-eligible, a death penalty law furnishes the 'meaningful basis [required by the Eighth Amendment] for distinguishing the few cases in which [the death penalty] is imposed from the many cases in which it is not.' " (People v. Anderson, supra, 43 Cal.3d at p. 1147.)
Our Supreme Court also rejected the argument that section 190.2, subdivision (a)(17) created "'a statutory classification which [imposes] a minimum penalty of death or imprisonment without parole upon persons who do not intend to kill, while permitting some deliberate killers to escape with a sentence of life with [the] possibility of parole.'" (People v. Anderson, supra, 43 Cal.3d at pp. 1146-1147.)
We note that a fallacy of Limbrick's argument is that its logical extension leads to an absurd result. Limbrick in effect concedes a special circumstance for an aider and abettor of a felony murder passes constitutional muster because of the intent requirement under section 190.2, subdivision (d). However, he argues a special circumstance for the actual killer, whose action makes him or her more culpable that an aider and abettor acting with "reckless indifference to human life," would be unconstitutional and therefore illegal because there is no stated intent requirement for the actual killer. Exposing capital liability to an aider and abettor of a felony murder, but sparing such liability to the actual killer, grossly upsets the proper balance between culpability and punishment.
As to Limbrick's dual-use argument, our Supreme Court has repeatedly authorized the use of a felony to qualify a defendant for first degree murder and for a special circumstance under section 190.2, subdivision (a)(17). (See People v. Taylor (2001) 26 Cal.4th 1155, 1183; People v. Marshall (1990) 50 Cal.3d 907, 945-946; People v. Garrison (1989) 47 Cal.3d 746, 793.) We are bound by the decisions of our Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
F. Cumulative Effect of Prejudicial Errors
Limbrick contends his convictions must be reversed because of the cumulative effect of the prejudicial errors in his trial. The contention is without merit.
A series of errors, though independently harmless, may in some circumstances rise to the level of reversible and prejudicial error. (People v. Hill (1998) 17 Cal.4th 800, 844.) However, because we have identified only one harmless error─the ex parte hearing─, we reject his contention that cumulative error requires reversal. (See People v. Vieira (2005) 35 Cal.4th 264, 305.) We also have assumed, for sake of argument, that admission of the gang evidence against Limbrick was error. We have concluded that both the error and possible error are harmless when considered separately. Considered cumulatively, the error and possible error could not have prejudiced Limbrick. (People v. Martinez (Jan. 14, 2010, S074624) ___ Cal.4th ___ [2010 Cal. Lexis 111, 112-113].)
II. ANDERSON'S APPEAL
A. Challenge of Prospective Juror for Cause
Anderson contends the trial court erred by granting the prosecution's challenge of a prospective juror for cause. We conclude the trial court did not err.
1. Background
Prospective Juror R. was a single parent of two sons, ages 9 and 16. The older boy was on juvenile probation. Prospective Juror R. worked as a payroll assistant for the San Diego Community College District. Her job was her sole means of support. During a break in voir dire, Prospective Juror R. had telephoned her employer to find out the length of jury service for which she would receive her salary, but had not been able to reach her boss. At the time of voir dire, it was estimated the trial would last three to four weeks. Prospective Juror R. expressed concern that her service on the jury could affect her ability to attend her son's court dates "at the drop of a hat" if necessary.
Over Anderson's objection, the court granted the prosecution's challenge for cause. Counsel for Limbrick agreed with removing Prospective Juror R. for cause. In granting the challenge for cause, the trial court explained that Prospective Juror R.
"had no other resources available to her beyond what she either actually had or may potentially have as compensation from her employer. [¶] In addition to that, she did make reference to the lack of backup related to the care or her children as it relates to the teenager's court appearance and things of that nature. [¶]... [On] balance[] I felt that when I look at all the other issues that we were taking into consideration related to hardship, while her... position did not rise to the level of... extreme hardship in balance, so many considerations that we made to[gether] with financial concerns, her removal by the court was consistent with that analysis."
2. Analysis
Code of Civil Procedure section 204, subdivision (b) provides that an eligible person may be excused from jury service for undue hardship upon the individual or the public. Among other things, an "undue hardship" exists when "[t]he prospective juror will bear an extreme financial burden." (Cal. Rules of Court, rule 2.1008(d)(3).) Factors to be considered in finding an undue hardship are: "(A) The sources of the prospective juror's household income; [¶] (B) The availability and extent of income reimbursement; [¶] (C) The expected length of service; and [¶] (D) Whether service can reasonably be expected to compromise the prospective juror's ability to support himself or herself or his or her dependents, or so disrupt the economic stability of any individual as to be against the interests of justice." (Ibid.)
"Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court." (People v. Weaver (2001) 26 Cal.4th 876, 910.) "[T]he qualification of jurors challenged for cause are 'matters within the wide discretion of the trial court, seldom disturbed on appeal.'" (People v. Kaurish (1990) 52 Cal.3d 648, 675.)
The trial court did not abuse its discretion by granting the prosecution's challenge for cause of Prospective Juror R. There was a substantial showing that Prospective Juror R. would have suffered undue hardship if she were to serve on a lengthy trial. The trial was estimated to last three or four weeks, and it was unknown to what extent Prospective Juror R.'s employer would pay her while she was on the jury. As a single parent of two children with no financial resources other than her paycheck, Prospective Juror R. undoubtedly would have experienced some economic hardship had she been selected for and served on the jury. In addition, there was legitimate concern that jury service might interfere with her ability to attend court in her son's case.
It is immaterial that the prosecutor, in challenging Prospective Juror R. for cause raised the prospective juror's ability to judge the case impartially as well as the undue hardship issue. (See People v. McDermott (2002) 28 Cal.4th 946, 981-982 ["[C]ourt should sustain a challenge for cause when a juror's views would 'prevent or substantially impair' the performance of the juror's duties in accordance with the court's instructions and the juror's oath."].) Here, the trial court did not rule on the impartiality issue, and we need not address it.
We reject Anderson's complaint that the trial court should have allowed more time for a definitive answer from her supervisor about being paid during jury service. Anderson did not make such a request when opposing the challenge for cause. There was no obligation for the court to delay the jury selection for this purpose, particularly absent a request to do so. We also reject Anderson's suggestion that the court excused Prospective Juror R. because of her economic status in violation of Code of Civil Procedure section 204, subdivision (a). The suggestion ignores the trial court's reliance on Prospective Juror R.'s desire to attend court proceedings in her son's case as well as the financial burden she would face.
Assuming, arguendo, the trial court erred in granting the challenge for cause, Anderson can show no prejudice. At the end of jury selection, the prosecution had two remaining peremptory challenges and would have likely exercised one to excuse Prospective Juror R. had the court not granted the challenge for cause.
B. Sufficiency of the Evidence
Anderson challenges the sufficiency of the evidence to support the jury's true finding on the special circumstance allegation that Gonzalez was murdered during the commission of a robbery. Specifically, Anderson contends there is insufficient evidence he acted with the reckless disregard of life that is required for the special circumstance finding. We disagree.
In order to find the special circumstance true, the jury had to find either that Anderson (1) was the actual killer and acted with or without an intent to kill (§ 190.2, subd. (b)); (2) was not the actual killer, but aided and abetted the robbery with an intent to kill (§ 190.2, subd. (c)); or (3) was not the actual killer, but was a major participant in the robbery and acted with reckless indifference to human life (§ 190.2, subd. (d)). Thus, under section 190.2, subdivision (d), an accomplice to the underlying felony who is not the actual killer will be sentenced to death or life in prison without the possibility of parole when he or she is found to have acted with " ' reckless indifference to human life and as a major participant' in the commission of the underlying felony." (People v. Estrada (1995) 11 Cal.4th 568, 575 (Estrada ).)
We agree with Anderson that the prosecution theory behind the special circumstance allegation against him was that he was a major participant in the crimes and acted with reckless disregard for human life. The phrases "major participant" and "reckless indifference to human life" are derived from the United States Supreme Court decision in Tison v. Arizona (1987) 481 U.S. 137 (Tison). "In Tison, the court held that the Eighth Amendment does not prohibit as disproportionate the imposition of the death penalty on a defendant convicted of first degree murder who was a 'major participant' in the underlying felony, and whose mental state is one of 'reckless indifference to human life.' " (Estrada, supra, 11 Cal.4th at p. 575, quoting Tison, supra, at p. 158 & fn. 12.)
The phrase "reckless indifference to human life" is commonly understood to mean that the defendant was subjectively aware that his or her participation in the underlying felonies involved a grave risk of death. (Estrada, supra, 11 Cal.4th at p. 578.) A "major participant" in a robbery is one who plays a notable or conspicuous part or is one of the more important members of the robbery group. (People v. Proby (1998) 60 Cal.App.4th 922, 930-931.) As the United States Supreme Court has observed, the "reckless indifference" and "major participant" requirements often overlap.
"[T]here are some felonies as to which one could properly conclude that any major participant necessarily exhibits reckless indifference to the value of human life. Moreover, even in cases where the fact that the defendant was a major participant in a felony did not suffice to establish reckless indifference, that fact would still often provide significant support for such a finding." (Tison, supra, 481 U.S. at p. 158, fn. 12.)
Further, the high court observed that the "reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result." (Id. at pp. 157-158.)
Subdivision (d) of section 190.2 was added to conform the special circumstance statute to Tison. (People v. Proby, supra, 60 Cal.App.4th at pp. 927-928.)
"We review a challenge to the sufficiency of the evidence to support a special circumstance finding as we review the sufficiency of the evidence to support a conviction." (People v. Cole (2004) 33 Cal.4th 1158, 1229.) We review "the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence─that is, evidence which is reasonable, credible, and of solid value─such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Hillhouse (2002) 27 Cal.4th 469, 496.)
Substantial evidence supported the special circumstance finding against Anderson; that is, he was a major participant in the robbery and acted with a reckless disregard for human life.
"[A] 'major participant' in the underlying crime includes persons ' "notable or conspicuous in effect or scope" and "one of the larger or more important members or units of a kind or group." ' " (People v. Hodgson (2003) 111 Cal.App.4th 566, 578, fn. omitted.) Anderson set up the marijuana purchase and lured Gonzalez from the agreed-upon site to a secluded residential neighborhood that was unfamiliar to Gonzalez. When Anderson returned to Gonzalez's truck after transferring the marijuana to his truck, his first action was to remove Gonzalez's keys from the ignition. Simultaneously, Limbrick placed a gun to Diaz's neck. Harris, who had been acting as a lookout, returned to Gonzalez's truck and told Diaz he "was going to die anyway." Despite Anderson's protestations to the contrary, the jury reasonably could find this was a planned robbery masterminded by Anderson, who knowingly brought along Limbrick to provide firepower and Harris to act as a lookout. There was ample evidence that Anderson's role in the robbery was "notable or conspicuous in effect or scope" and his role was "one of the larger or more important" roles among the robbers. Anderson was a major participant in the underlying felony.
"The term 'reckless indifference to human life' means 'subjective awareness of the grave risk to human life created by his or her participation in the underlying felony.' " (People v. Proby, supra, 60 Cal.App.4th at p. 928.) Anderson admitted he knew Limbrick had a gun when they were driving to the crime scene, and he decided to proceed with the robbery he had planned. He told the police he had suggested that Limbrick just use the gun "to scare them." Anderson also told police that he knew that Limbrick was a gang member and described him as a "hothead." Anderson also admitted he knew that people take guns to drug deals and for that reason drug transactions are dangerous. Anderson had to have known that the use of weapons during a robbery presented a grave risk of death. (People v. Hodgson, supra, 111 Cal.App.4th at p. 580.) Furthermore, when Anderson removed Gonzalez's keys from the ignition, he not only started the fatal chain of events, he also eliminated any chance for Gonzalez to escape. Then Anderson, along with the armed Limbrick, stood over Gonzalez while he was lying in the street. After Gonzalez was executed, Anderson continued the robbery by driving himself and his two accomplices from the crime scene to safety. The next day Anderson split the marijuana with them. There was sufficient evidence before the jury to conclude that Anderson was aware of a grave risk to human life and displayed a "reckless indifference to human life" by his participation in the underlying felony. Under these circumstances, the jury could reasonably infer that by including the armed Limbrick in the robbery plans, Anderson displayed a reckless indifference to human life even though he did not fire the gun that killed Gonzalez.
C. Prosecutorial Misconduct
Alternatively, Anderson contends the special circumstance finding against him must be reversed because the prosecutor committed misconduct when she misstated the law in her closing rebuttal argument. Specifically, Anderson refers to the following statement:
"Although counsel have 'broad discretion in discussing the legal and factual merits of a case [citation], it is improper to misstate the law.' " (People v. Mendoza (2007) 42 Cal.4th 686, 702, quoting People v. Bell (1989) 49 Cal.3d 502, 538.)
"That was a question about special circumstance. The special circumstance is a killing during a robbery. There's nothing else. That's what the special circumstance is. Read it yourself. You'll see if─if someone[ is] killed during the commission of a robbery, that's a special circumstance. You will have the instructions with you, so I don't want to take up more time with that."
Because defense counsel did not object to the prosecutor's misstatement of the law, this assignment of law has been forfeited or waived.
"To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct." (People v. Price (1991) 1 Cal.4th 324, 447.) Accordingly, to avoid forfeiture or waiver of prosecutorial misconduct, a defendant generally "must make a timely objection, make known the basis of his [or her] objection, and ask the trial court to admonish the jury." (People v. Brown (2003) 31 Cal.4th 518, 553.) The reason for this rule " 'is that "the trial court should be given an opportunity to correct the abuse and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of the jury." ' " (People v. Bonin (1988) 46 Cal.3d 659, 689, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) "Because we do not expect the trial court to recognize and correct all possible or arguable misconduct on its own motion [citations], defendant bears the responsibility to seek an admonition if he believes the prosecutor has overstepped the bounds of proper comment, argument, or inquiry." (People v. Visciotti (1992) 2 Cal.4th 1, 79.)
However, "[a] defendant will be excused from the requirement of making a timely objection and/or a request for an admonition if either would have been futile." (People v. Cole (2004) 33 Cal.4th 1158, 1201.) "A defendant claiming that one of these exceptions applies must find support for his or her claim in the record. [Citation.] The ritual incantation that an exception applies is not enough." (People v. Panah (2005) 35 Cal.4th 395, 462.) The futility exception will only be found to apply in extreme cases. (See People v. Boyette (2002) 29 Cal.4th 381, 432.)
We are not persuaded by, and the record does not support, Anderson's conclusory assertion that a request for an admonition was not required because no admonition could have cured the harm caused by the purported prosecutorial misconduct. (People v. Adanandus (2007) 157 Cal.App.4th 496, 512.) This is not a case where an objection would have been futile. Trial counsel easily could have objected and requested the court to reinforce the jury's understanding of the requirements for a special circumstance by referring the jury to the instructions on the special circumstance. Anderson has not shown that a timely objection and a request for a curative admonition would have been futile or would not have cured any prejudice. (Ibid.) We conclude Anderson has forfeited this assignment of error by failing to object below.
D. Admission of Evidence of Other Crimes
Anderson contends the trial court committed prejudicial error by admitting evidence of his involvement in the 2001 drive-by shooting incident. The contention is without merit.
Evidence of other crimes is inadmissible if its only relevance is to show the defendant has a propensity to commit crimes. (People v. Catlin (2001) 26 Cal.4th 81, 145; Evid. Code, § 1101, subd. (a).) However, this rule of exclusion does not apply to other crimes evidence "which is relevant to prove more than mere criminal predisposition. The test of relevance is whether the evidence '[tends]... to establish any [facts] material for the people [such as identity, intent, plan, motive, preparation, or opportunity] or to overcome any material matter sought to be proved by the defense.' " (People v. Alcala (1984) 36 Cal.3d 604, 631; Evid. Code, § 1101, subd. (b).) Other crimes evidence is admissible to prove intent or common plan if the current and prior conduct is sufficiently similar to support a rational inference that the defendant probably employed the same plan or harbored the same intent in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) While evidence of other crimes must be highly similar to the charged offenses to be admitted on the issue of identity, a lesser degree of similarity is required for admission as to common design or plan, and the least degree of similarity is needed for admission on the issue of intent. (Ibid.) In the last instance, the other crimes "'need only be "sufficiently similar [to the charged offenses] to support the inference that the defendant '"probably harbored the same intent in each instance."'"'" (People v. Lewis (2001) 25 Cal.4th 610, 636-637; People v. Ewoldt, supra, 7 Cal.4th at p. 402.)
Notwithstanding Anderson's contentions to the contrary, evidence of the 2001 shooting incident was (1) relevant to show a common plan and intent, and (2) sufficiently similar to warrant admission of the evidence under Evidence Code section 1101, subdivision (b). In both incidents, Anderson brought to the crime scene an armed gang member to supply the force or fire power to carry out the crime while later denying or minimalizing his own involvement in the crime. Evidence of the 2001 incident tended to prove that Anderson had the intent to rob Gonzalez of his marijuana at gunpoint or kill Gonzalez during the robbery.
Anderson, without citation to authority, argues that it is improper to use Limbrick's gang membership to justify the use of other crime evidence under Evidence Code section 1101, subdivision (b) because evidence of Limbrick's gang membership was admitted solely for the purpose of identification of Limbrick based on his gang moniker as the "Grim Reaper" or "Brim Reaper." We are not persuaded. The court limited the use of evidence of Limbrick's gang membership for the benefit of Limbrick─not for the benefit of Anderson.
The evidence of the 2001 incident also tended to disprove the defense claim that Anderson had no idea that Limbrick was armed or had no idea that Limbrick would use the gun during the robbery. Thus, the evidence was relevant to the special circumstance issue of whether Anderson had the requisite "reckless indifference to human life." (§ 190.2, subd. (d).)
Once other crimes offense evidence is found relevant to prove a fact other than criminal propensity, the court must then exercise its discretion under Evidence Code section 352 to decide if its probative value is "substantial and... not... largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury." (People v. Kipp (1998) 18 Cal.4th 349, 371.) Evidence is unduly prejudicial if it is likely to "provoke emotional bias against a party or to cause the jury to prejudge the issues upon the basis of extraneous factors." (People v. Jenkins (2000) 22 Cal.4th 900, 1008.) We review the trial court's balancing of the probative value versus the prejudicial effect for abuse of discretion. (People v. Kipp, supra, 18 Cal.4th at p. 371.)
We conclude the trial court acted within its discretion under Evidence Code section 352 in finding the probative value of the 2001 shooting incident was not substantially outweighed by the potential for undue prejudice. As explained, the evidence had substantial probative value with respect to whether Anderson intended to rob Gonzalez and acted with requisite "reckless indifference to human life" for the special circumstance. Evidence of the 2001 incident was brief; it was neither cumulative nor excessive. Further, the other crime evidence was not particularly inflammatory compared to the unprovoked murder of Gonzalez as he lay in the street. (People v. Ewoldt, supra, 7 Cal.4th at p. 405.)
E. Admission of Bullet Hole Evidence
Anderson contends the trial court committed prejudicial error by admitting evidence of bullet holes in his truck because the bullet holes had nothing to do with Gonzalez's murder. We agree the court abused its discretion, but find the error was not prejudicial.
The truck Anderson was driving on May 20, 2004 was recovered by police after it was sold to a third party. The prosecution prepared a photo board (exhibit 30) displaying various photographs of the truck, with photo A showing bullet holes in the body of the truck. Dorie Savage, a police forensic specialist, testified she was asked to photograph the truck because it had bullet holes and to search for the bullets that made the holes. No bullet was found. After the court recessed, Anderson's counsel objected to the testimony and the photograph as irrelevant because the bullet holes predated the May 20, 2004 homicide. Counsel claimed the photograph and testimony were unduly prejudicial and moved to strike the testimony. The prosecutor argued the description of the bullet holes was relevant to the condition of the truck when the police found it. The court refused to go back and strike the testimony describing the bullet holes, but said it would entertain any objection to the photograph if and when the photograph was moved into evidence. The court also directed the attorneys to not further reference the bullet holes.
Nonetheless, during the testimony of police detective Deanna Warwick, the prosecutor asked if she noticed some conditions about Anderson's truck. Anderson's counsel objected, and the court overruled the objection. Warwick answered the truck matched the description given by Diaz and she also noticed "some bullet holes." At the next recess, Anderson's counsel renewed his objection. Again, the court overruled the objection, finding the probative value─that the police found the truck in that condition and did not tamper with it─outweighed the prejudicial effect.
We review relevancy and Evidence Code section 352 rulings for abuse of discretion. (People v. Weaver (2001) 26 Cal.4th 876, 933.) "A trial court abuses its discretion when its ruling 'fall[s] "outside the bounds of reason." ' " (People v. Waidla (2000) 22 Cal.4th 690, 714.) Only relevant evidence is admissible. (Evid. Code, § 350.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "[T]he trial court 'has broad discretion in determining the relevance of evidence [citations], but lacks discretion to admit irrelevant evidence.' " (People v. Weaver, supra, 26 Cal.4th at p. 933.)
Photographs of the truck were relevant because it corroborated the description of the truck provided by eyewitness Diaz, whose credibility─given his background─was very much at issue. However, Diaz's description did not involve the bullet holes, and the prosecution had photographs of the recovered truck─taken from other angles─that did not show the bullet holes. Police tampering was not a disputed issue in this trial. It was not disputed that the bullet holes predated the May 19, 2004 crime. Therefore, we conclude the photograph with the bullet holes and the attendant testimony was not relevant to any "disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Furthermore, assuming that the issue of police tampering was a disputed issue of consequence and the photograph of the truck showing the bullet holes was relevant, the potential prejudicial effect of bullet holes outweighed the slight probative value. We conclude the court abused its discretion in not striking the bullet hole testimony.
Nonetheless, we cannot find the error was prejudicial. The parties stipulated that the bullet holes were "completely unrelated to this incident, and they were there long before May 20, 2004." Further, Anderson testified that the bullet holes were made when his truck was parked across the street from Lincoln High School and he was attending a basketball game inside. Given these curative measures, it is not reasonably probable that a more favorable result would have occurred had the testimony of the bullet holes not been admitted. (People v. Watson (1956) 46 Cal.2d 818, 836.)
Outside the presence of the jury, Anderson's counsel indicated he joined the stipulation only because the evidence was admitted over his objection and his motion to strike was denied.
The jury was instructed as follows: "During the trial, you were told that the People and the defense agreed, or stipulated, to certain facts. This means that they both accept those facts. Because there is no dispute about those facts you must accept them as true."
F. Admission of Photograph
Anderson, joined by Limbrick, contends the trial court committed prejudicial error by admitting an irrelevant and outdated photograph of Gonzalez with his son. The contention is without merit.
At issue is a enlarged color photograph (measuring 15-3/4 inches by 10-1/2 inches) of Gonzalez holding one of his sons apparently while they were being photographed standing next to a Disneyland employee wearing a Mickey Mouse suit. Before trial, Anderson objected to the photograph as irrelevant and called it an improper bid for sympathy for the victim. The prosecutor said Gonzalez's son, who was with his father up until 7:00 the evening he was killed, would testify to establish the timeline. The prosecutor also said she anticipated that Gonzalez's character would be attacked during the trial and the photograph would counter such an attack. Although Anderson's counsel vehemently insisted that he would not attack Gonzalez's character, counsel for Limbrick said that he planned to do so based on evidence that Gonzalez used and sold drugs, employed an armed bodyguard and had ammunition in his vehicle. The court ruled the photograph was relevant to Gonzalez's character as a "reasonably attentive" parent to his children "to balance the inference that dope dealers are inherently distrustful and evil." The court also ruled the photograph was not overly prejudicial under Evidence Code section 352. The prosecutor displayed the Disneyland photograph during her opening statement. During her examination of Gonzalez's son, the prosecutor asked him to identify the people in the picture. The photograph was not admitted into evidence.
The photograph evidently was taken several years earlier than May 20, 2004, because the boy depicted is a toddler. The boy, who testified at the trial, was 10 years at the time of the shooting and 13 years old at the time of the trial.
The prosecution also wanted to introduce a second photograph depicting a dressed-up Gonzalez with his other son, who was wearing a white tuxedo for a special event. Anderson objected to this photograph as well. The court ruled that only one photograph would be allowed.
Our Supreme Court has "repeatedly cautioned against admission of photographs of murder victims while alive unless the prosecution can establish the relevance of such items." (People v. DeSantis (1992) 2 Cal.4th 1198, 1230.) Nevertheless, our Supreme Court also directs us to review the admission of such photographs under the abuse of discretion of standard. (People v. Osband (1996) 13 Cal.4th 622, 678.) In People v. Osband, the Supreme Court found that a photograph of the victim on her birthday, with Christmas presents, was properly admitted even though it brought tears to the eyes of a testifying relative. (Id. at pp. 676-677.)
We first consider whether the photograph was relevant to any material issue and then consider whether its probative value was outweighed by its prejudicial effect. (People v. Hendricks (1987) 43 Cal.3d 584, 594.) In reviewing the trial court's ruling, we must consider the facts that were before the trial court at the time of its ruling. (People v. Welch (1999) 20 Cal.4th 701, 739; People v. Hernandez (1999) 71 Cal.App.4th 417, 425, ["We may assess the trial court's ruling only on the facts made known to it at the time it made that ruling."].) Given the announced plans of Limbrick's counsel to attack the character of victim Gonzalez, the court reasonably could find the photograph was relevant to rebut the anticipated attack on Gonzalez by Limbrick. (See People v. Riggs (2008) 44 Cal.4th 248, 302.) That the photograph may not have been necessary to rebut bad character evidence about Gonzalez is not determinative because necessity is not the test for admissibility under Evidence Code section 352. The test is whether the trial court, in its discretion, reasonably concludes the evidence has probative value that is not substantially outweighed by its potential prejudicial effect. Here, the trial court reasonably could have concluded that codefendant Limbrick would attack Gonzalez's character because he was a drug dealer.
In People v. Green (1956) 47 Cal.2d 209, 215, disapproved on another ground in People v. Morse (1964) 60 Cal.2d 631, 637 to 638, footnote 2, the trial court allowed the prosecutor, during his opening statement, to show photographs of the victim's wounds and of the defendant attired in prison garb. The Supreme Court acknowledged that the use of the photographs, which were later admitted into evidence, was a proper aid to the prosecutor in delivering the opening statement and deferred to the trial court's exercise of discretion.
We acknowledge it was likely that the photograph of Gonzalez and his toddler son at Disneyland evoked a sympathetic reaction from the jury. Nevertheless, we cannot say the court exceeded the bounds of reason in allowing the prosecutor to exhibit it. "The possibility that [the photograph] generated sympathy for the victim[] is not enough, by itself, to compel [] exclusion...." (People v. DeSantis, supra, 2 Cal.4th at p. 1230.)
Assuming arguendo it was error to allow the prosecutor to use the photograph, the error was harmless. The photograph was shown to the jury during the prosecutor's opening statement at the beginning of the trial. The prosecutor used the photograph again during the examination of Gonzalez's son, but the record does not indicate whether it was displayed to the jury at that time. The exhibit was not admitted into evidence. Thus, the jury's exposure to it was brief. In light of all the evidence presented at trial, there is simply no reasonable probability that the outcome would have been more favorable to Anderson had the photograph been totally excluded. (People v. DeSantis, supra, 2 Cal.4th at p. 1231.)
G. Motion for Mistrial
Anderson, joined by Limbrick, contends (1) the trial court should have conducted individual interviews with each juror to determine what each individual juror knew about material─the transcript of a police interview with a jailhouse informant─that was inadvertently placed in the jury room, and (2) his motion for a mistrial based on this incident should have been granted. The contention is without merit.
The jailhouse informant, Tyrone Childs, claimed that Anderson and Limbrick separately made damaging admissions to him in jail. Childs's proposed testimony was the subject of an Evidence Code section 402 hearing in which both Anderson and Limbrick sought to exclude it from the trial. A transcript of Childs's interview with a homicide detective was People's exhibit 1 at the Evidence Code section 402 hearing. In the fall of 2006, the prosecution announced it no longer planned to call Childs as a witness. Childs did not testify at trial, the transcript (People's Exhibit 1) was not introduced or admitted as an exhibit at trial, and Childs's name was not mentioned during any testimony.
At 1:43 p.m. on the first full day of deliberations, the jury sent a note to the trial court, which read: "People['s] exhibit #1─Who is Tyrone Childs??" The cover page of People's Exhibit 1 referenced "People vs. Adam Limbrick and R-Mon Anderson" and was titled "TAPED INTERVIEW OF TYRONE CHILDS ON MAY, 26, 2005." In the upper right hand corner is the court exhibit tag. The interview began on the following page and the court characterized the first few lines of the transcript as "the Reader's Digest version of the whole case," without any opportunity to confront Childs.
After receiving the note, the court sent the bailiff into the jury room to inquire and retrieve People's Exhibit 1. The court then went into the jury room and asked the foreperson if she had read the document beyond the name "Tyrone Childs." The foreman said that neither she nor any other juror had read it." Subsequently, the court informed counsel it would bring all the jurors into the courtroom and question them about how the name came up and what happened next. The court rejected counsel's request that it interview the jurors individually and not in a group setting; however, the court placed all the jurors under oath before questioning them.
With all jurors in the courtroom and placed under oath, the court asked the foreperson why she wrote the note. The foreperson said jurors saw the exhibit while looking for information about Anderson's interview by the police. The foreperson closed the exhibit after turning the cover page and seeing references to detective Warrick and Childs at the top of the page. Jurors did not read the exhibit and put it aside.
Juror No. 1 told the court that after the foreperson recited the name of Tyrone Childs, all the jurors searched their notes and could not find any references to Childs. At that point, the jurors decided to write the note to the court. Responses by the remaining jurors were similar.
The court instructed the jury to disregard the name "Tyrone Childs," the document and its content. After jury deliberations resumed, Anderson's trial counsel moved for a mistrial. The court denied the motion.
The constitutional right to a fair trial requires that the jury decide the case solely on the basis of evidence from witnesses. (People v. Nesler (1997) 16 Cal.4th 561, 578.) When a trial court learns of the possibility a juror has been improperly influenced, the court must make whatever inquiry is reasonably necessary to determine if the juror should be discharged and whether improper influences may have tainted deliberations by other jurors. (People v. Burgener (1986) 41 Cal.3d 505, 519-520, disapproved on other grounds in People v. Reyes (1998) 19 Cal.4th 743, 751-754.) The decision whether to investigate the possibility of juror bias and the extent of any investigation rests within the sound discretion of the trial court. (People v. Cleveland (2001) 25 Cal.4th 466, 478.) There was no abuse of discretion in this case.
The court's inquiry was more than sufficient. Under oath, each juror individually told the court that he or she had not read the transcript. The only juror who had looked beyond the cover page was the foreperson, who, upon seeing Detective Warwick's name and the unknown name of Childs at the top of the first page, quickly put aside People's Exhibit 1 and communicated with the court. Although Anderson belittles the consistency of the individual jurors' responses, we decline to do so in light of the oath each juror took before answering the court's questions. There simply is no indication that the jury─or any juror─was exposed to the contents of the transcript. Further, the court provided counsel with the opportunity to examine the jurors. Based upon its inquiry, the court concluded the inadvertent receipt of the Childs transcript had not impacted the jury's ability to deliberate in a fair and impartial manner. There was ample support for this conclusion.
We reject Anderson's argument that for the court to properly reach its no-taint conclusion it should have questioned each juror privately. In People v. Pinholster (1992) 1 Cal.4th 865, 928, the trial court did not ask each juror if he or she had read a newspaper article about the trial. Our Supreme Court found there was no error. "While individual questioning may have been preferable, we have never held that it is constitutionally required." (Ibid.) In People v. Farnam (2002) 28 Cal.4th 107, 139, one of four jurors returning to the courthouse after lunch was knocked to the ground by four men who snatched her purse. The Supreme Court rejected the defendant's assertion that the four jurors should have been questioned separately. "Defendant cites no legal authority compelling individual, sequestered questioning, and the trial court's decision not to so was well within its discretion under the circumstances." (Id. at p. 141.)
We note that this is not a case of juror misconduct because the jury inadvertently received the transcript from the court─not from outside sources. Accordingly, a reversal is only required if Anderson can demonstrate that it is reasonably probable he would have received a more favorable outcome had the transcript not come to the jury's attention. (People v. Cooper (1991) 53 Cal.3d 771, 836; People v. Clair (1992) 2 Cal.4th 629, 668.) "When... a jury innocently considers evidence it was inadvertently given, there is no misconduct." (People v. Cooper, supra, at p. 836.) Rather, all that appears is ordinary error. (Ibid.) This is a significant distinction. In the case of misconduct, prejudice is presumed and reversal is required unless there is no substantial likelihood that any juror was improperly influenced to the defendant's detriment. (People v. Marshall (1990) 50 Cal.3d 907, 949-951.) By contrast, with ordinary error, prejudice must be shown and reversal is not required unless there is a reasonable probability that an outcome more favorable to the defendant would have resulted. (People v. Cooper, supra, 53 Cal.3d at p. 836.)
The court did not err by denying Anderson's motion for a mistrial. "Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." (People v. Haskett (1982) 30 Cal.3d 841, 854.) Here, the court instructed the jury to disregard the name "Tyrone Childs," the document and its content. We presume that the jury was able to follow the court's curative instructions. (People v. Pinholster, supra, 1 Cal.4th at p. 919.) The court took the necessary curative measures to remove the danger of prejudice. It did not abuse its discretion by denying the mistrial motion.
H. Motion for Continuance
Anderson contends the trial court erred by denying his motion for a continuance to prepare a written motion for a new trial. The contention is without merit.
After the court denied the continuance request, Anderson's counsel made an oral motion for a new trial based on improper jury venire in violation of state law. We find the court properly exercised its discretion in denying the oral motion for a new trial. (People v. Davis (1995) 10 Cal.4th 463, 524.)
1. Background
On February 9, 2007, the date set for sentencing, Anderson's counsel moved for a 45-day continuance to prepare a written motion for a new trial based on the systematic exclusion of minorities in the jury selection process of San Diego County. At the time, counsel in another case were questioning the county's jury selection process, and the trial court in that case had granted counsel's discovery motion for information pertaining to the procedures the county used to draw its jurors from the community. (See Roddy v. Superior Court (2007) 151 Cal.App.4th 1115, 1130-1131 [rejecting challenge to trial court's discovery order].) Anderson's counsel requested the continuance so he could rely on the generic jury selection information yet to be produced in the other case as his factual foundation for a new trial motion.
That case was People v. Brown (Super. Ct. San Diego County, 2003, No. SCD174976). We grant the Attorney General's unopposed motion to take judicial notice of the court's June 11, 2008 order denying the defendant's challenge under Duren v. Missouri (1979) 439 U.S. 357, 364, that Brown's jury was not drawn from a representative cross-section of the community.
In denying Anderson's motion for a continuance, the court found it "so speculative to this date that... there is no degree of certainty that... there could be any possible substance presented to [the] court at a later date."
2. Analysis
A trial court may grant a continuance only "upon a showing of good cause." (§ 1050, subds. (e) & (a) [codification of legislative finding that "criminal courts are becoming increasingly congested" and that "[e]xcessive continuances contribute substantially to this congestion and cause substantial hardship to victims and other witnesses"].) "'"Continuances shall be granted only upon a showing of good cause."'" (People v. Froehlig (1991) 1 Cal.App.4th 260, 265.) " 'The grant or denial of a motion for a continuance rests within the sound discretion of the trial judge.' " (Ibid.) "In determining whether a denial was so arbitrary as to deny due process, the appellate court looks to the circumstances of each case and to the reasons presented for the request." (People v. Frye (1998) 18 Cal.4th 894, 1013.) "[T]he denial of a continuance may be so arbitrary as to deny due process." (People v. Beames (2007) 40 Cal.4th 907, 921.) "However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence." (Ibid.)
One factor to consider is whether a continuance would be useful. (People v. Beeler (1995) 9 Cal.4th 953, 1003 ["[T]o demonstrate the usefulness of a continuance a party must show both the materiality of the evidence necessitating the continuance and that such evidence could be obtained within a reasonable time."].) The trial 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... whether substantial justice will be accomplished" by granting a continuance. (People v. Laursen (1972) 8 Cal.3d 192, 204.) The burden is on Anderson to establish error. (People v. Beeler, supra, 9 Cal.4th at p. 1003.) A denial of a continuance motion is seldom successfully challenged. (Ibid.)
The court did not abuse its discretion by denying the continuance. The court properly considered the relevant factors, including the fact that the usefulness of the information for which the continuance was sought was highly speculative, and Anderson's counsel had not established the information from the other case could be obtained within a reasonable time. (People v. Beeler, supra, 9 Cal.4th at p. 1003.) Furthermore, it had been more than two years eight months since Gonzalez had been murdered and his family had a right to closure (see § 1050, subd. (a)).
Assuming arguendo the court abused its discretion in denying the continuance request, Anderson cannot prevail because there was no prejudice. "In the absence of a showing of an abuse of discretion and prejudice to the defendant, a denial of a motion for a continuance does not require reversal of a conviction." (People v. Barnett (1998) 17 Cal.4th 1044, 1126.) Anderson has not shown the information from the other case or any other source established that his jury was not drawn from a fair representative cross-section of the community.
I. Cumulative Effect of Prejudicial Errors
Anderson contends his convictions must be reversed because of the cumulative effect of prejudicial error in his trial. The contention is without merit.
"Because we identified only one harmless error [admission of the bullet hole evidence], the claim of cumulative error is without merit." (People v. Vieira, supra, 35 Cal.4th at p. 305.) We have also assumed, for sake of argument, that it was error to excuse Juror R., admit the Mickey Mouse photograph, and deny a continuance to submit a written new trial motion. We have concluded that both the error and the possible errors are harmless when considered separately. Considered cumulatively, the error and possible errors could not have prejudiced Anderson. (People v. Martinez, supra, ___ Cal.4th ___ [2010 Cal. Lexis 111, 112-113].)
J. Parole Revocation Restitution Fine
Because he was sentenced to life imprisonment without the possibility of parole, Anderson contends this court should strike the $10,000 parole revocation restitution fine which was assessed and suspended by the trial court pursuant to section 1202.45. Although the Attorney General concedes the point, we disagree. In addition to his sentence of life imprisonment without the possibility of parole and his sentence of life with the possibility of parole, Anderson received a determinate sentence of 28 years. The parole revocation restitution fine was properly imposed. (People v. Brasure (2008) 42 Cal.4th 1037, 1075.)
DISPOSITION
The judgments against Limbrick and Anderson are affirmed.
I CONCUR: McINTYRE, J.
AARON, J., concurring
I concur in the majority opinion, with the exception of the discussion in part I.D. (maj. opn. ante, at p. 32), in which the majority concludes that the admission of evidence of Limbrick's membership in the "5/9 Brim" criminal street gang, and evidence of Limbrick's gang moniker "Grim Reaper" was not error. In my view, the gang evidence had no legitimate probative value and had significant potential prejudicial impact. However, I concur with the majority's secondary conclusion that the error in admitting this evidence was harmless in view of the overwhelming evidence of Limbrick's guilt.
"Given its highly inflammatory impact, the California Supreme Court has condemned the introduction of [gang] evidence if it is only tangentially relevant to the charged offenses. (People v. Cox (1991) 53 Cal.3d 618, 660.) In fact, in cases not involving gang enhancements, the Supreme Court has held evidence of gang membership should not be admitted if its probative value is minimal. (People v. Hernandez (2004) 33 Cal.4th 1040, 1047.)" (People v. Albarran (2007) 149 Cal.App.4th 214, 223-224.)
The majority states, "Limbrick's gang membership and moniker were relevant to the issue of identity because Johnson testified that the day following the shooting he observed Anderson dividing the stolen marijuana with 'Adam,' whom Johnson also knew as the 'Grim Reaper' and 'JJ.' Johnson's testimony corroborated eyewitness Diaz's testimony that Limbrick was at the shooting scene." (Maj. opn. ante, at p. 33.) The majority continues, "Limbrick complains that Johnson was not aware of Limbrick's moniker until after the events in 2004, but that fact does not affect the corroborating effect of Johnson's testimony. The prosecution was entitled to prove its case and especially to prove a fact so central to guilt or innocence as Limbrick's identity as the shooter." (Maj. opn. ante, at p. 33.)
The majority apparently fails to recognize that the fact that Johnson knew Limbrick not only as Adam, but also as the Grim Reaper is entirely irrelevant to the purported reason for admitting the gang moniker, i.e., to corroborate Diaz's identification of Limbrick. Since Diaz did not know Limbrick by any name, and had identified Limbrick in photo and live lineups only by his appearance, Johnson's testimony that he had seen Anderson dividing the stolen marijuana with Adam would have been sufficient to corroborate Diaz's identification of Limbrick. The additional testimony that Johnson also knew Adam as the Grim Reaper was entirely gratuitous, particularly since Johnson could not recall Adam's nickname at the time he initially identified Limbrick to police as one of the persons who he saw dividing the marijuana. Under the circumstances, the introduction of evidence of Limbrick's gang moniker was not even tangentially relevant to the charged offense and should have been excluded.
Compounding the error, the trial court allowed the People to introduce evidence not only of Johnson's identification of Limbrick as the Grim Reaper, but also allowed a gang detective to present a file to the jury that contained evidence documenting Limbrick as a gang member. The court further allowed the detective to explain to the jury how a gang member "earns" his moniker, and in particular, that a gang member may earn his moniker "from crimes you commit" or "activity they're involved in." The majority asserts that the fact that the trial court gave a limiting instruction "cautioning the jury to consider the Grim Reaper testimony only for the purpose of identification and not for any other purpose... dispelled the potential the jury would convict Limbrick based on his gang affiliation rather than on the affirmative admissible evidence of his guilt of the substantive offenses." (Maj. opn. ante, at pp. 33-34.) However, the court's limiting instruction applied, by its terms, only to evidence of Limbrick's gang moniker, and not to any of the other gang evidence that was presented to the jury. Thus, the People were permitted to paint Limbrick as a homicidal gang member who had earned the moniker Grim Reaper, in a murder case involving no gang allegations, by introducing superfluous and highly prejudicial gang evidence, which the jury was allowed to consider for any purpose.
The majority fails to address the introduction of the gang file and the testimony about earning one's gang moniker, in concluding that admission of the gang evidence did not constitute error.
I believe that the trial court abused its discretion in admitting the gang evidence in this case. However, because the admissible evidence against Limbrick was overwhelming, I conclude that the admission of the evidence was harmless.