Opinion
B224440
02-08-2012
THE PEOPLE, Plaintiff and Respondent, v. QUINN ALEXANDER MAREZ et al., Defendants and Appellants.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant, Quinn Alexander Marez. Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant, Justin Thalheimer. Kamala Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance Winters, Senior Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA59953)
APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed.
Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant, Quinn Alexander Marez.
Peter Gold, under appointment by the Court of Appeal, for Defendant and Appellant, Justin Thalheimer.
Kamala Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance Winters, Senior Assistant Attorney General, Scott A. Taryle and Michael C. Keller, Deputy Attorneys General, for Plaintiff and Respondent.
Following a joint jury trial, defendants Quinn Alexander Marez and Justin Thalheimer were convicted of first degree murder. On appeal, defendants contend trial court erred in denying their Wheeler motion alleging the prosecutor had discriminated against Hispanics in exercising peremptory challenges during jury selection and improperly denied their motions for separate trials or separate juries. Defendants further contend the trial court committed other evidentiary, instructional and sentencing errors. We affirm.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in party by Johnson v. California (2005) 545 U.S. 162 [125 S.Ct. 2410, 162 L.Ed.2d 127]; Batson v. Kentucky (1986) 476 U.S. 79 [106 S.Ct. 1712, 90 L.Ed.2d 69].
Pursuant to California Rules of Court, rule 8.200(a)(5) Marez and Thalheimer have each joined in the other's arguments to the extent they are helpful to his appeal. For clarity, although mindful of the joinder, we identify the defendant who has raised a specific claim in our discussion of the issues.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. The Charges
Defendants were each charged by information with the first degree murder of
Daniel Koch (Pen. Code, § 187, subd. (a)). As to both defendants, it was alleged they personally used a deadly weapon in committing the offense (§ 12022, subd. (b)(1)). The information also alleged that Marez had been released from custody on bail at the time of the offense (§ 12022.1) and that Thalheimer had previously suffered two juvenile adjudications as serious or violent felony convictions within the meaning of the "Three Strikes law" (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). Defendants pleaded not guilty and denied the special allegations. II. The Trial
Statutory references are to the Penal Code, unless otherwise indicated.
Our general description of events, including the offense charged and the roles of the defendants and witnesses, is based on the evidence presented at trial, viewing the whole record in the light most favorable to the judgment. (Cf. People v. Zamudio (2008) 43 Cal.4th 327, 357.) Where material to our resolution of an issue raised on appeal, we identify any substantial conflicts in the evidence.
A. The Killing of Daniel Koch
In August 2007, eighteen-year-old Quinn Marez and Justin Thalheimer were living on the streets with Marez's girlfriend, Emily Kent. They were no longer welcome at home because of drug and alcohol abuse.
Kent testified as a prosecution witness. Because she professed a lack of memory as to much of what was asked of her at trial, by stipulation the transcript of Kent's preliminary hearing testimony was read into evidence, but not transcribed.
On the afternoon of August 25, 2007, the trio walked to Limekiln Canyon Park in Northridge with food and a bottle of brandy they had stolen from a grocery store. They encountered Daniel Koch drinking beer at a picnic table near a small creek that ran through the park. Defendants knew Koch, who was homeless and living in the park. The trio sat down with Koch, and the three men began sharing food and alcohol while Kent slept. Other people came by, including Jason Smith, a friend of Koch, who joined in both the conversation and the consumption of alcohol. The four men became intoxicated.
About an hour after Smith arrived, Koch became belligerent when Kent either ignored or refused his repeated requests to pass him the bottle of brandy. Koch cursed at Kent, enraging Marez, who advanced on Koch. Smith briefly placed Marez in a headlock to stop him from hitting Koch. Kent wanted to leave, and she, Marez and Thalheimer headed for the north end of the park, walking roughly parallel to the creek. After five or 10 minutes, Smith left for home through the south end of the park.
Defendants were still upset with Koch. After crossing a bridge over the creek, they decided to return to make Koch apologize for his rude behavior. When Kent could not dissuade defendants from going back, she elected to wait for them on the other side of the bridge.
Five or 10 minutes later, Thalheimer returned alone to the bridge. He was screaming and carrying a Leatherman tool. Both of his hands were bloody. Kent followed Thalheimer back to the picnic table, where they found Marez, holding a Maglite flashlight, which had been in his backpack earlier in the day. Koch was lying face down on the ground, approximately five feet away from the picnic table; he was moaning and covered in blood.
A Leatherman tool can be changed into different tools, like a knife or a wrench.
Kent then left the park, not wanting to be a part of what had happened, and walked to a nearby 7-Eleven store, where defendants met up with her some 10 to 20 minutes later. Marez was carrying the flashlight. Thalheimer threw his tennis shoes on top of the convenience store. Marez left, after announcing he was going back to the park to clean up. While Marez was gone, Thalheimer told Kent not to talk about what had happened in the park. Marez returned 10 to 20 minutes later, no longer wearing shoes. He telephoned Amanda Welch to say the trio needed a ride from the 7-Eleven store. Welch arrived and took defendants and Kent with her to buy gas, before returning to the convenience store. Marez's father soon showed up to drive his son home, along with Kent. Welch dropped off Thalheimer at a bus stop.
B. The Aftermath of the Killing
The next day, Koch was found dead in the creek that flowed near the picnic table. His body was face down; the back of his head bore signs of trauma. There were drag marks from the picnic table to the creek. He died from a combination of sharp and blunt force trauma, having suffered 52 sharp force injuries, including 42 stab wounds, of which five to the torso were potentially fatal, and his throat had been cut. The sharp force injuries were consistent with a Leatherman tool. Koch further suffered 12 blunt force traumas to his head, which produced multiple skull fractures and bleeding of the brain. A large Maglite flashlight could have caused the blunt force injuries. Koch was determined to have been the major donor of DNA found on the flashlight and Leatherman tool. Marez could not be excluded as a minor donor of DNA on the flashlight, while Thalheimer was excluded as a possible additional donor. Kochs's blood alcohol level was 0.36 percent at the time of his death.
The day after the killing, Jeffrey Seemayer was walking his dog in Limekiln Canyon Park. He noticed drag marks near the picnic table leading to the creek and a Leatherman tool on the ground that he later turned over to police.
C. Defendants' Incriminating Statements
On the night of the killing and in the days prior to their arrest, defendants spoke with others, including Kent, Welch, Matthew Ellerbrock, and Rayne Stanis, who attributed to one or both defendants various admissions and incriminatory statements. Welch testified that en route to the bus stop, Thalheimer admitted to her that he had cut or slashed someone's throat at Marez's direction. Kent testified that on the day after the killing, Marez confided to her that he had hit Koch with a flashlight. The same day, Thalheimer told Kent that he had slit Koch's wrist and neck with the Leatherman tool. Ellerbrock reported to police that four days after the killing he spoke with both defendants at his home. Marez admitted he "had bashed in" Koch's head with a Maglight flashlight, and Thalheimer admitted he had stabbed Koch and slit his throat at Marez's behest. Stanis was also at Ellerbrock's home at the time. She heard Marez tell Ellerbrock that he had killed a homeless man by beating him with a flashlight because he had insulted his girlfriend. Marez said he then got Thalheimer involved by "egging him on" so that Thalheimer would finish killing him. Marez seemed thrilled and excited as he recounted the killing. Stanis heard Thalheimer admit he had killed a homeless man by stabbing him and then slitting his throat, although Thalheimer did not want to talk about the murder.
D Quinn Marez's Defense
Marez testified in his own defense that on the afternoon of August 25, 2007, Thalheimer and Kent joined Koch at a picnic table in Limekiln Canyon Park. Marez sat down reluctantly; he did not trust Koch. Kent fell asleep, while the three men shared the food, beer and a bottle of brandy. Jason Smith arrived as it was getting dark. Kent awakened, snatched the bottle of brandy off the table and put it between her legs, which infuriated Koch. He cursed Kent, demanded that she give him the bottle and attempted to pull it away from her. When Marez objected, he was restrained by Smith, but managed to free himself. Koch jumped up on the table, started screaming that Kent was a "bitch" and threatened to kill her. Marez was angry and intimidated. Kent insisted that the three of them leave. The trio walked away from the picnic table as Koch continued yelling.
They walked the hill towards the cement bridge over the creek. Marez was still furious with Koch. When Marez crossed the bridge, he caught sight of another picnic table, fell to his knees and began crying. Seeing that picnic table triggered Marez's memory of an incident in March 2005, when he was walking through the park. Koch was sitting at the picnic table, and when Marez reached the picnic table, Koch blocked his path, insisted Marez sit with him, forced him to drink some alcohol and refused to let him leave. Koch then hit Marez twice in the back of his head, pulled down Marez's pants and then pulled down his own pants. Koch then put his knee on the back of Marez's calf. Marez managed to get away and ran home. He never told anyone about the incident, which made him feel ashamed and continuously depressed. After the incident, Marez began consuming alcohol and missing school.
Remembering the 2005 attempted molestation made Marez angry. He remained on the ground for five minutes crying and growing angrier. Marez believed Koch's attempts to remove the bottle from between Kent's legs were sexual, and Koch would engage in another sexual assault. When Thalheimer turned to head back to the picnic table, Marez took the Maglite flashlight and followed him. Marez intended to confront Koch and to ensure Thalheimer's safety.
As Marez neared the picnic table, Koch charged and struck Marez in the jaw. Marez immediately recalled the attempted molestation. Marez did not intend to kill Koch, but, fearing for his life, he struck Koch with the flashlight about 10 times. Koch continued throwing punches until Marez fell to the ground. Thalheimer then tackled Koch, and knocked him into the picnic table. Thalheimer repeatedly stabbed Koch with the Leatherman tool until Koch went still. Thalheimer then left with the Leatherman tool and went to find Kent. The two of them returned to the picnic bench, before Kent left the park. Thalheimer dragged Koch's now inert body to the creek. Marez dropped the flashlight near the picnic table and left the park. Thalheimer stayed at the park, but he later reunited with Marez and Kent at the 7-Eleven store. Marez subsequently returned to the park to retrieve a backpack that had been left behind.
Marez denied having told Matthew Ellerbrock or Rayne Stanis about the killing. He admitted prior juvenile adjudications for felony grand theft and "felony assault on a peace officer."
E. Justin Thalheimer's Defense
Thalheimer's testimony in his own defense at trial was largely consistent with Marez's testimony up to the point where Marez became enraged over Koch's behavior towards Kent. According to Thalheimer, as soon as Marez exhibited his anger, Thalheimer moved away from the picnic table and walked towards the creek. Thalheimer was not at all upset with Koch, and he feared Marez would do "something crazy". After Jason Smith briefly placed Marez in a headlock, Marez and Kent decided to leave the park. Thalheimer apologized to Koch for leaving so abruptly and followed Marez and Kent towards the north end of the park. Thalheimer left behind the Leatherman tool on the picnic table. As they were walking, Marez became hysterical. He insisted they go back and kill Koch because of his behavior towards Kent. Thalheimer steadfastly refused, and Marez finally agreed he would be satisfied with an apology from Koch.
When Thalheimer reached the picnic table, he sat down with Koch and persuaded him to apologize when Marez arrived. At the same time, Marez snuck up on Koch and attacked him in a rage, hitting him with the Maglite flashlight and stabbing him with the Leatherman tool. Marez seemed so out of control that Thalheimer did not intervene to stop the attack, fearing Marez would harm him too. Thalheimer moved out of the way in shock. Marez gave Thalheimer the Leatherman tool, telling him to finish off Koch. Thalheimer tossed the weapon back to Marez and left to find Kent. By the time the two of them returned to the picnic table, Marez had dragged Koch's body into the creek and was trying to drown him. Thalheimer admitted throwing his tennis shoes on the roof of the 7-Eleven, concerned about the footprints he had left in the park.
Thalheimer denied having made any admissions or incriminatory statements about the killing to Welch, Kent, Ellerbrock or Stanis. Thalheimer admitted he had prior juvenile adjudications for felony offenses involving moral turpitude. He also admitted he had taken a motor vehicle without authorization. Later in the proceedings, Thalheimer testified that he had admitted in juvenile court to having committed assault with a deadly weapon on a peace officer. The parties stipulated that Thalheimer had a second juvenile adjudication for assault with a deadly weapon on a peace officer. Thalheimer also admitted at trial to having used and sold drugs and to having left a drug treatment center before completing his court-ordered rehabilitation program.
Donna Levy, a friend of Thalheimer, testified on his behalf that Rayne Stanis and Matthew Ellerbrock said that Marez had boasted to them about the killing, but that Thalheimer had never mentioned it to them.
III. Arguments, Verdicts and Sentencing
The prosecutor argued to the jury that defendants together committed the deliberate and premeditated murder of Koch because they were upset about his behavior towards Kent: Marez used his Maglite flashlight to repeatedly bludgeon Koch, and Thalheimer used his Leatherman tool to stab Koch multiple times. Alternatively, the prosecutor theorized Marez committed the murder, and Thalheimer aided and abetted its commission by stabbing Koch as directed by Marez.
Marez's defense was voluntary manslaughter. He claimed he bludgeoned Koch with the flashlight in the heat of passion or in imperfect self-defense, triggered by Koch's belligerent behavior towards Kent and by Marez's memory of Koch's attempt to sexually molest him in 2005. However, Marez did not stab Koch; Thalheimer did.
Thalheimer's defense was that he neither stabbed nor otherwise participated in killing Koch. Instead, it was Marez, who both bludgeoned Koch with the flashlight and stabbed him with the Leatherman tool.
At the conclusion of the trial, the jury found defendants guilty of first degree murder and found true the allegation that defendants personally used a deadly weapon in committing the offense. After a bifurcated proceeding, the trial court found true the allegations that Marez had been released from custody on bail at the time of the offense and that Thalheimer had previously suffered two juvenile adjudications as felony strike convictions.
The trial court sentenced Marez to an aggregate state prison term of 28 years to life, consisting of a term of 25 years to life for first degree murder, plus one year for personally using a deadly weapon in committing the offense, plus two years for having been on bail at the time of the offense. The court sentenced Thalheimer to an aggregate state prison term of 76 years to life, consisting of 75 years to life for first degree murder plus one year for personally using a deadly weapon in committing the offense.
DISCUSSION
I. Defendants' Wheeler Motion
Defendants contend the trial court erred in finding they had failed to make a prima facie case of racial discrimination by the prosecutor in removing two Hispanic prospective jurors during jury selection.
A. Governing Law
The exercise of peremptory challenges to remove prospective jurors based on group bias violates both the California and the United States Constitutions. (People v. Ward (2005) 36 Cal.4th 186, 200, citing Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson v. Kentucky, supra, 476 U.S. at p. 89.) The procedure and substantive standards trial courts properly use when considering motions challenging peremptory strikes are now well-established: "'"'First, a defendant must make a prima facie showing that a peremptory challenge has been exercised on the basis of race[; s]econd, if that showing has been made, the prosecution must offer a race-neutral basis for striking the juror in question[; and t]hird, in light of the parties' submissions, the trial court must determine whether the defendant has shown purposeful discrimination'"'" (People v. Hamilton (2009) 45 Cal.4th 863, 898, quoting Snyder v. Louisiana (2008) 552 U.S. 472, 476-477 [128 S.Ct. 1203, 1207, 170 L.Ed.2d 175, 181].)
"[A] defendant satisfies the requirements of Batson's first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred." (Johnson v. California, supra, 545 U.S. at p. 170; accord, People v. Hawthorne (2009) 46 Cal.4th 67, 79 overruled on another ground in People v. McKinnon 52 Cal.4th 610, 637.) "An inference is a logical conclusion based on a set of facts. [Citation.] When the trial court concludes that a defendant has failed to make a prima facie case, we review the voir dire of the challenged jurors to determine whether the totality of the relevant facts supports an inference of discrimination." (People v. Lancaster (2007) 41 Cal.4th 50, 74, citing Johnson, at p. 168 & fn. 4.)
As always, "'[w]e review a trial court's determination regarding the sufficiency of a prosecutor's justifications for exercising peremptory challenges "'with great restraint.'" [Citation.] We presume that a prosecutor uses peremptory challenges in a constitutional manner and give great deference to the trial court's ability to distinguish bona fide reasons from sham excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.'" (People v. Lenix (2008) 44 Cal.4th 602, 613-614.) "On appeal, a trial court's ruling on the issue of discriminatory intent must be sustained unless it is clearly erroneous." (Snyder v. Louisiana, supra, 552 U.S. at p. 477.)
The California Supreme Court has held that the "substantial evidence" standard for review of pure issues of fact is equivalent to the federal "clearly erroneous" standard. (See People v. Hamilton, supra, 45 Cal.4th at p. 901, fn. 11.)
B. Facts Underlying the Wheeler Motion
1. Jury selection process
Before jury selection began, counsel received the names of all potential jurors in the 124 person venire, in part to identify those jurors who might be Hispanic. Eighteen prospective jurors were randomly selected from the venire to sit in the jury box for voir dire, among them, Juror No. 8381 and Juror No. 4879.
With her first peremptory challenge, the prosecutor excused Juror No. 8381, who was seated as Prospective Juror No. 12. Following a second peremptory challenge by the defense, the prosecutor exercised her third peremptory challenge to excuse Juror No. 4879, who was seated as Prospective Juror No. 2. After the prosecutor's dismissal of Juror No. 4879, the defense made a Wheeler motion. Counsel pointed out the prosecutor had used two of her first three peremptory challenges to excuse Hispanics. Counsel argued the prosecutor had no valid basis for removing the two prospective jurors, other than race, because there was nothing objectionable about either of them.
Before ruling on the Wheeler motion, the trial court invited the prosecutor to give her reasons for excluding the jurors. The prosecutor explained that during voir dire Juror No. 8381 indicated she was nervous and uncomfortable about serving on the jury and acted as if she did not want to be there. Juror No. 8381 also said various members of her family had been incarcerated, including a niece who had used drugs.
The prosecutor offered a different rationale in support of her peremptory challenge to Juror No. 4879. The prosecutor explained the challenged juror was a postal worker, whose only prior jury experience was sitting on a hung jury. Having previously represented the postal service, the prosecutor perceived postal workers as a very disgruntled group of people. She stated postal workers had hung some of her juries in the past, and was thus troubled by Juror No. 4879's casual attitude towards his hung jury experience. The prosecutor added, without defense objection, that eight other prospective jurors on this first panel appeared to be Hispanic.
The trial court ruled the defense had failed to state a prima facie case. After surveying the courtroom, the court noted that the majority of the potential jurors in the venire were Hispanic. As to Juror No. 8381, the court remarked, "I would not have known [she] was Hispanic but for her surname; and that may not be her surname but could be her married name." The court found it interesting, and a separate basis for excusal, that Juror No. 8381 initially failed to disclose that her niece had been incarcerated for drug use.
As to Juror No. 4879, the court agreed with the prosecutor that his indifference towards his hung jury experience was alarming. Finally, the court found the prosecutor's decision to excuse Juror 4879, a postal worker, was sincere, based on the prosecutor's prior relationship with the postal service and its employees.
The selection process resumed with no additional Wheeler motions. After exercising eight more peremptory challenges, each side accepted the jury. The prosecutor and both defense counsel each used one more peremptory challenge in choosing three alternate jurors. The trial court noted the empanelled jury included seven seated jurors and one alternate juror with Hispanic surnames, and it was "a fair cross-section of the local community."
The court also stated that one seated juror was of Asian descent.
2. Juror No. 8381
Juror No. 8381 worked as a clerk in a medical office. Her husband was an unemployed painter. She had two children and no prior jury experience. Her niece was married to a police officer. Juror No. 8381 had been stopped and cited for not wearing a seatbelt, but she had paid the fine and did not think the incident would affect her ability to be fair and impartial. She also acknowledged that several family members had been stopped by police and incarcerated. Juror No. 8381 later clarified during sequestered voir dire that she had a number of nephews, the majority of whom had been stopped for driving under the influence of alcohol and were housed in jail over night. None of them had been incarcerated in state prison. When the panel was questioned about family members with drug problems, Juror No. 8381 volunteered that her niece previously had a drug problem, and she "ended up in prison and she's doing okay now. . . [¶] . . . [She] ended up in jail and [a] mental institution for a little bit."
Asked by the trial court if she could listen to the testimony and decide the credibility of witnesses, Juror No. 8381 answered, "Honestly, I really don't think so." Juror No. 8381 subsequently explained that she did not agree with the jury system. Although she could be fair to both sides, Juror No. 8381 felt that such important decisions should not be left to people who were "not in the law." Juror No. 8381 said that while she could follow the jury instructions, deliberate with fellow jurors and come to a decision, she would always have the burden of wondering whether she had made the right decision. The severity of the crime charged would increase the discomfort she would feel in making a decision. When questioned by defense counsel, Juror No. 8381 said she could make a decision, even if she did not want to do so, because "God gave me the brains." When the prosecutor asked whether she could listen to the evidence, deliberate with fellow jurors and come to a decision, Juror No. 8381 answered, "Yes." However, the prosecutor noted that her response was both soft and hesitant.
3. Juror No. 4879
Juror No. 4879 was a postal worker. His job duties included working at a mail facility and delivering the mail. He was divorced and his former wife was a nurse. Juror No. 4879 had four children. His only prior jury service was in a murder case which had resulted in a hung jury. Juror No. 4879 had sided with the majority of the jury and had not formed an opinion about the attorneys who handled the trial. He characterized his prior jury experience as "positive." The prosecutor asked Juror No. 4879 how he felt about having served on a hung jury. He answered, "It happens. Part of the process."
C. The Trial Court's Denial of the Motion Was Not Clearly Erroneous
Defendants contend the prosecutor's exercise of two of the initial three peremptories that she used to challenge Hispanic potential jurors demonstrates a pattern of discrimination. Although "exclusion by peremptory challenge of a single juror on the basis of race or ethnicity is an error of constitutional magnitude requiring reversal" (People v. Silva (2001) 25 Cal.4th 345, 386), a Wheeler inquiry often focuses on situations in which "a discriminatory pattern begins to emerge." (People v. Motton (1985) 39 Cal.3d 596, 604; see People v. Bonilla (2007) 41 Cal.4th 313, 343, fn. 12 ["'in drawing an inference of discrimination from the fact one party has excused "most or all" members of a cognizable group' . . . 'a court finding a prima facie case is necessarily relying on an apparent pattern in the party's challenges'"].)
While exercising peremptories against members of a cognizable group could support an inference of discrimination, in the absence of a more complete record, we cannot determine that the trial court erred in finding no prima facie case. For instance, there is no information as to the exact number of Hispanic prospective jurors remaining in the venire after hardship excusals and challenges for cause or the ethnicity of those prospective jurors the prosecutor excluded using her nine subsequent peremptories. Thus, it is difficult to assess the significance of the pattern defendants allege; without greater context, the raw numbers urged by defendants lose their potency as an indicator of discrimination. (See People v. Neuman (2009) 176 Cal.App.4th 571, 582 ["defendant's assertion that the prosecutor exercised 75 percent of his peremptories against members of a cognizable class freezes the record at the time of the motion, ignores everything that happened thereafter (which cannot now be reconstructed, thanks to defendant's failure to make a record below) and flies in the face of the rule that we examine the entire record"].)
What belies defendants' prima facie claim, however, is the fact the prosecutor used only 12 of her 30 peremptories before accepting a jury, including three alternates, of whom 55 percent (eight of 15) were Hispanic, a number comparable to the percentage of prospective Hispanic jurors in the venire. (See People v. Avila (2006) 38 Cal.4th 491, 555 [fact that several African-American prospective jurors were in the venire at the time the only African American in the jury box was peremptorily excused by the prosecutor supports the trial court's finding of no prima facie case].) Accordingly, because the venire included numerous potential jurors of Hispanic descent, the prosecutor's use of a peremptory in this case would have merely afforded an opportunity for a person of the same ethnicity to serve, thereby diminishing the likelihood that a prohibited reason motivated the prosecutor's challenge. In any event, the prosecutor did not use any her of 18 remaining peremptories to challenge all Hispanics; eight were among the selected jurors.
While statistics may play a significant role in establishing a prima facie case of discrimination, the trial court is permitted to consider a much wider range of factors, not only by drawing upon its contemporaneous observations of the venire and voir dire, but also by considering the prosecutor's demeanor, how reasonable or improbable the reasons are and whether they have some basis in trial strategy, the court's own experiences as a lawyer and bench officer, and "even the common practices of the advocate and the office who employs him or her." (People v. Jones (2011) 51 Cal.4th 346, 360; People v. Lenix, supra, 44 Cal.4th at p. 613; see People v. Howard (2008) 42 Cal.4th 1000, 1017-1019; People v. Hoyos (2007) 41 Cal.4th 872, 901-903; People v. Bonilla, supra, 41 Cal.4th at p. 343.) When a trial court has rested its decision on a much broader array of factors, as this court did, it is insufficient on review for a defendant to rely solely on the racial pattern of peremptory challenges in making a prima facie case. (E.g., Hoyos, at p. 901 [fact that prosecutor excused all members of a particular group "alone is not conclusive"]; People v. Kelly (2007) 42 Cal.4th 763, 780 [prima facie case weakened where prosecutor left some members of minority group on jury].) Perhaps aware that the frequency with which the prosecutor initially dismissed Hispanics standing alone was not likely to raise an inference of defendants also argue that the totality of relevant circumstances provides a basis to infer the prosecutor challenged the two Hispanic jurors because of their race.
Even had the trial court erred in finding no prima facie case, it sought explanation for the challenges. Reviewing the totality of circumstances as we must, there was substantial evidence to support the trial court's denial of the motion. The responses of Juror No. 8381 and Juror No. 4789 elicited during voir dire revealed race-neutral grounds for each of the prosecutor's contested peremptories. As the prosecutor explained, one reason for excusing Juror No. 8381 was that her family members had been arrested for substance-abuse related crimes, including a niece who had been incarcerated for drug use. This, by and of itself, would have been a sufficient, race-neutral justification to exercise a challenge. (See, e.g., People v. Bonilla, supra, 41 Cal.4th at p. 343 [no prima case shown where prosecutor dismissed prospective juror whose husband and father had suffered prior felony convictions]; People v. Gray (2005) 37 Cal.4th 168, 192 [no prima facie case shown where prosecutor challenged prospective juror who reported that someone close to her had been incarcerated].) As an additional race-neutral ground, the prosecutor cited Juror No. 8381's nervous demeanor and specific responses during voir dire, as reflecting the juror's strong reluctance to serve on the jury, which would have reasonably led the prosecutor to doubt the credibility of her agreement to follow jury instructions, deliberate with fellow jurors and render a verdict. (See Snyder v. Louisiana, supra, 552 U.S. at p. 477 ["race-neutral reasons for peremptory challenges often invoke a juror's demeanor (e.g., nervousness, inattention), making the trial court's first-hand observations of even greater importance"]; Hernandez v. New York (1991) 500 U.S. 352, 356, 360 [111 S.Ct. 1859, 114 L.Ed.2d 395] [prosecutor did not improperly excuse Hispanic prospective jurors after they looked away and hesitated in answering a question during voir dire]; People v. Johnson (1989) 47 Cal.3d 1194, 1219 [trivial reasons such as "body language" and "mode of answering questions" legitimate grounds "so long as asserted in good faith"].) Indeed, at one point not only did Juror No. 8381 express an unwillingness to sit in judgment of others, she was also of the opinion that the jury system is flawed. From the record of voir dire, we see no reason to doubt the credibility of prosecutor's proffered explanations for excusing Juror No. 8381 or to deem them a pretext for racial discrimination.
Juror No. 4789's profession as a postal worker was also a sufficient race neutral reason for the peremptory challenge. (People v. Reynoso (2003) 31 Cal.4th 903, 925-926 [noting that a prosecutor properly may dismiss a prospective juror in the belief that his or her occupation renders him or her ill suited to serve on the jury].) Defendants' suggestion to the contrary notwithstanding, whether or not postal workers in fact make better jurors is not the focus of our inquiry, but whether the prosecutor's reasons reflect group bias. Here, they did not. In light of the prosecutor's personal experience with postal workers, and Juror No. 4789's indifference towards his hung jury experience, the prosecutor could have reasonably believed that he would not have been willing make a good faith effort to reach a verdict should deliberations prove difficult. (People v. Watson (2008) 43 Cal.4th 652, 670 ["'[j]urors may be excused based on "hunches" and even "arbitrary" exclusion is permissible, so long as the reasons are not based on impermissible group bias'"]; People v. Lenix, supra, 44 Cal.4th at p. 613 ["prospective juror may be excused based upon facial expressions, gestures, hunches, and even for arbitrary or idiosyncratic reasons."].)
Defendants argue while the prosecutor stated that Juror 4789 had been in the minority on his hung jury, he actually had been in the majority, which "largely eras[ed] any legitimate concern that he might be a hold out juror in this case." However, "[t]he purpose of a hearing on a Wheeler/Batson motion is not to test the prosecutor's memory but to determine whether the reasons given are genuine and race neutral. 'Faulty memory, clerical errors, and similar conditions might engender a "mistake" of the type the prosecutor proffered to explain his peremptory challenge are not necessarily associated with impermissible reliance on presumed group bias.' [Citation.] This 'isolated mistake or misstatement' [citation] does not alone compel the conclusion that this reason was not sincere." (People v. Jones, supra, 51 Cal.4th 346, 366.)
II. The Trial Court's Response to the Jury's Question Was Not an Abuse of Discretion
While deliberating, the jury asked, "With regard to the term 'premeditation' as it relates to express malice aforethought, must the premeditation occur prior to the commission of the act or can it occur during the actual commission of the crime? Can premeditation happen in the middle of or during the continuation of the act?"
During the ensuing discussion with counsel, the trial court stated its preferred response would be to direct the jury to review the previously provided instructions. Counsel for Marez agreed with the court, saying "especially to refer them to CALCRIM [No.] 521 which defines premeditation and deliberation." The prosecutor proposed the jury be instructed instead that premeditation may occur at any time prior to the moment of death. After entertaining further argument, the court agreed with the defense and responded to the jury in a note, "Please review jury instructions previously provided."
Section 1138 imposes on the trial court the "duty to provide the jury with information the jury desires on points of law." (People v. Smithey (1999) 20 Cal.4th 936, 985.) "The court has a primary duty to help the jury understand the legal principles it is asked to apply. [Citations.] This does not mean the court must always elaborate on the standard instructions. When the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information." (People v. Beardslee (1991) 53 Cal.3d 68, 97; accord, Smithey, supra, at p. 985.)
Section 1138 provides, "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
Although defendants raised no objection at the time, they now contend the trial court's failure to direct the jury to review CALCRIM No. 521, in particular, was somehow prejudicial. Defendants do not claim the court's response was inaccurate or misleading or that CALCRIM No 521 was not among those previously provided to the jury. Instead, defendants assert "it would have assisted the jury enormously if the court had identified the relevant instruction." There is no reason to suspect jurors were either unable or unwilling to locate the applicable instruction(s) on their own from among those they already received. The court's accurate and complete response to the jury's question was not an abuse of discretion.
III. Thalheimer's Statements to Amanda Welch Implicating Marez were Admissible
Prior to Amanda Welch's testimony, counsel for Marez objected to the introduction of certain out-of-court statements, or portions of statements, made by Thalheimer to Welch on the night of the killing, implicating Marez. Counsel argued these statements did not qualify as exceptions to the hearsay rule, and even if they did, their admission into evidence was more prejudicial than probative, resulting in a violation of Marez's fair trial and due process rights.
Counsel for Marez acknowledged his request for a separate jury at this point was untimely. In this court, Marez makes no claim that admission of those statements was in violation of his confrontation rights; accordingly, any such claim is waived.
Following a hearing, the trial court determined the contested statements were admissible, without any redaction, as declarations against penal interest, spontaneous statements and state of mind evidence exceptions to the hearsay rule. The court expressly found the statements had sufficient indicia of reliability and trustworthiness to be admissible; and their probative value outweighed any potential prejudice.
A. Facts Underlying the Contested Statements
Following the trial court's ruling, Welch testified about the circumstances leading up to the contested statements and the statements themselves. According to Welch, she received a phone call from Marez at around 9:30 on the night of the killing saying the trio was at the 7-Eleven and needed a ride. Welch arrived at the convenience store sometime after 10:00 p.m. Marez, Emily Kent and Thalheimer got into her car. When Welch asked where to drive them, they just said "to go," so she decided to take them with her to the gas station to put gas in her car.
En route, the trio told Welch that they were going to get picked up by a Mexican cartel and were not going to see her again for a while. Thalheimer acted as though "he was kind of on the edge, jumpy, loud." Marez and Kent told him to be quiet. To Welch, the three of them "were acting a bit frantic," "were kind of excited," and "seemed like they were in kind of in a hurry to get out of there," all of which prompted Welch to ask if they had stolen something.
After filling her car with gas, Welch drove the trio back to the 7-Eleven. When they emerged from the car, Thalheimer began pointing and yelling the names of nearby businesses, and Marez and Kent angrily told him to "shut up." Marez's father pulled up in his car and asked his son, "Who killed somebody?" Marez did not respond. He and Kent got into his father's car and left.
Welch testified that she then drove Thalheimer to a bus stop across the street from the gas station. Alone in the car with Welch, Thalheimer became "hysterical," screaming, "crying, really upset and angry." He repeatedly said to Welch, "'I've never done anything like this before,"' and asked her, "You believe me, right?" Welch replied, "Sure." Thalhemier also said, "I've been with you since 7:00, right?" Welch answered, "You can say that, but I have been - I just got off work at 9:00." Thalheimer then told her that she was never going to see him again. He said "that he had just cut someone" or "just cut somebody's throat" and "that Quinn told him to it." As Thalheimer talked, he kept moving his right hand diagonally across his lap "in a slashing motion." He said "that Quinn called him - Quinn told him - he said[,] '[D]o it and pussy[;]"' or "[J]ust do it, just come on, you pussy."' Welch testified she had known her friend Thalheimer for seven years and had never before seen him behave like that.
B. Statements Against Penal Interest
Evidence Code section 1230 provides that an out-of-court declaration against penal interest is admissible if its proponent shows the declarant is unavailable, the declaration was against the declarant's penal interest when made, and the declaration is sufficiently reliable to warrant admission despite its hearsay character. (People v. Geier (2007) 41 Cal.4th 555, 584.) "'The focus of the declaration against interest exception to the hearsay rule is the basic trustworthiness of the declaration. [Citations.] In determining whether a statement is truly against interest within the meaning of Evidence Code section 1230, and hence is sufficiently trustworthy to be admissible, the court may take into account not just the words but the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant's relationship to the defendant.' [Citation.]" (Geier, supra, at p. 584.)
Evidence Code section 1230 reads: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true."
Because of concerns that declarations against penal interest may contain self-serving and unreliable information, the exception generally does not "apply to collateral assertions within declarations against penal interest." (People v. Campa (1984) 36 Cal.3d 870, 882.) Further, "[e]ven a hearsay statement that is facially inculpatory of the declarant may, when considered in context, also be exculpatory or have a net exculpatory effect. [Citation.] Ultimately, . . . 'whether a statement is self-inculpatory or not can only be determined by viewing it in context.' [Citation.]" (People v. Duarte (2000) 24 Cal.4th 603, 612 (Duarte).)Only those portions of the declaration that are "specifically disserving" to the declarant's penal interests are admissible under Evidence Code section 1230. (People v. Leach (1975) 15 Cal.3d 419, 441) "Courts applying [Evidence Code] section 1230 to determine the basic trustworthiness of a proffered declaration are . . . to 'consider all the surrounding circumstances to determine if a reasonable person in [the declarant's] position would have made the statements if they weren't true.'" (People v. Duarte, supra, 24 Cal.4th at p. 618.)
We review a trial court's ruling under Evidence Code section 1230 for an abuse of discretion. (People v. Brown (2003) 31 Cal.4th 518, 534) "A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that result in a manifest miscarriage of justice [citation]." (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Marez contends the statements Welch attributed to Thalheimer that Marez told him to cut the victim's throat and called him a pussy were not "specifically disserving" of Thalheimer's interests and thus not admissible under the declaration against penal interest exception to the hearsay rule. Marez relies on Duarte to argue the prosecution could not have established the foundational elements of reliability and trustworthiness to admit the hearsay statements because they were clearly self-serving: In making these statements to Welch, Thalheimer was attempting to shift all blame for the killing to Marez and to minimize his own involvement in the crime. For those reasons, Marez urges these statements, or portions of statements, should have been excluded from Thalheimer's self-incriminatory statements to Welch. (Duarte, supra, 24 Cal.4th at p. 612 [when a trial court admits part of a declarant's statement as specifically disserving of his or her penal interest, the court should excise or redact any statement, or portion of a statement, not specifically disserving of the declarant's penal interest when made].)
There is no dispute that Thalheimer was unavailable as a witness at the time of this testimony as he had not yet made the decision whether to testify. That leaves as the issue to be determined whether the contested statements were specifically self-disserving to be trustworthy and reliable under Evidence Code section 1230. In Duarte, the defendant and another man were charged with shooting at a dwelling. (Duarte, supra, 24 Cal.4th at pp. 607-609.) Before trial, the defendant's accomplice gave the police a statement acknowledging his participation in the crime, but minimizing his role. A redacted version of the accomplice's statement was admitted at the defendant's trial as an admission against penal interest. (Id. at p. 609.) Duarte reviewed case authority and stated: "[A] hearsay statement 'which is in part inculpatory and in part exculpatory (e.g., one which admits some complicity but places the major responsibility on others) does not meet the test of trustworthiness and is thus inadmissible.'" (Duarte, supra, at p. 612.) Applying this rule, the Duarte court concluded the redacted statement, viewed in context, was self-serving and thus should have been excluded at trial. (Id. at pp. 612-613.)
However, People v. Samuels (2005) 36 Cal.4th 96 (Samuels), made clear that Duarte does not require that a statement that inculpates the defendant and others be excluded provided that the circumstances show the declarant's apparent inculpatory statements are not, in fact, exculpatory, self-serving or collateral. In Samuels, the defendant paid her daughter's boyfriend to murder the defendant's husband. (Samuels, at p. 102.) Fearing the boyfriend would contact police, the defendant arranged for him to be murdered as well. (Id. at p. 104.) At trial, over the defendant's objections, the boyfriend's hearsay statement to an acquaintance that he had killed the defendant's husband and that she had paid him was admitted as a statement against penal interest. The Samuels court held the entire statement was properly admitted as against the declarant's penal interest. (Id. at pp. 120-121.)
Here, as in Samuels, in telling Welch that Marez called him a pussy and told him to cut the victim's throat, Thalheimer was not attempting to minimize his own involvement in the killing, to deflect responsibility for the crime or to shift the blame to Marez. Rather Thalheimer made these statements to explain how and why he committed the killing. Because Thalheimer's statements were against his penal interest and his references to Marez were intertwined with his self-incriminatory statements, the trial court did not abuse its discretion by not redacting or otherwise excluding Thalheimer's references to Marez.
Furthermore, the circumstances surrounding Thalheimer's statements confirm their reliability. His statements were not made in a custodial setting or in any other context remotely close to one in which the declarant "attempts to improve his situation with the police by deflecting criminal responsibility onto others." (People v. Greenberger (1997) 58 Cal.App.4th 298, 335; see Lilly v. Virginia (1999) 527 U.S. 116, 124-125 [119 S.Ct. 1887, 144 L.Ed.2d 117] (plur. opn.); id. at p. 140 (conc. opn. of Breyer, J.) Instead, Thalheimer made his statements in the most reliable circumstances, alone in confidential conversation with a longtime friend, a noncoercive setting that fostered his uninhibited disclosure. (Greenberger, supra, 58 Cal.App.4th at p. 335.) The trial court did not abuse its discretion by admitting the statements into evidence without redaction under Evidence Code section 1230. Given that the statements were properly admitted, there was no violation of Quinn Marez's constitutional rights to due process and a fair trial. (See People v. Lucas (1995) 12 Cal.4th 415, 464.)
Marez also relies on People v. Garcia (2008) 168 Cal.App.4th 261 (Garcia). At issue was the admissibility of a jailhouse note sent by the cellmate of a defendant, suggesting the defendant authorized his cellmate to issue threats to anyone who might testify against the defendant. (Garcia, supra, at p. 286.) The Garcia court held the hearsay statements in the note were not wholly inculpatory to the declarant as a declaration against penal interest -- one statement in the note asserted the cellmate had written the note, another said he had done so as a favor to the defendant. (Id. at pp. 286-290.) By contrast, Thalheimer's statements implicated him directly in the murder.
In passing, Marez challenges the admission of the evidence as spontaneous statements (Evid. Code, § 1240) and the trial court's basis for admitting the statements as a state-of-mind exception to the hearsay rule (Evid. Code, § 1250.) We need not reach this claim, having found no abuse of discretion in admitting them.
IV. The Evidence of Jason Smith's Prior Conviction Was Properly Excluded for Impeachment
Marez contends the trial court erroneously refused to allow the defense to impeach Jason Smith with evidence of his 1991 felony conviction for assault with a firearm as too remote. He argues that because both his and Kent's testimony differed from Smith's testimony, Smith's credibility was "very much at issue." Specifically, he points to Smith's account of Koch's behavior as merely cursing Kent in some way for not surrendering the bottle of brandy and later referring to himself "in a goofy context" as a "Viking." By contrast, Marez and Kent testified Koch called Kent a "bitch," before he jumped onto the picnic table and yelled, "I'm a fucking Viking, bitch; I will fucking kill you." Marez maintains the jury would likely have discredited Smith's benign version of Koch's behavior had it been aware of his prior felony conviction.
A witness in a criminal trial may be impeached with a prior felony conviction if the least adjudicated elements of that felony necessarily involve moral turpitude. (People v. Castro (1985) 38 Cal.3d 301, 317.) While conviction of a crime of moral turpitude may be used to impeach a witness, the trial court may still exercise discretion under Evidence Code section 352 to exclude such evidence when its probative value is outweighed by the risk of undue prejudice. (People v. Castro, supra, 38 Cal.3d at pp. 307, 313; People v. Feaster (2002) 102 Cal.App.4th 1084, 1091-1092.)
We evaluate the trial court's Evidence Code section 352 determination under the abuse of discretion standard. (People v. Greenberger, supra, 58 Cal.App.4th at p. 352.) The factors applicable to the trial court's determination of relevance include the remoteness of the prior conviction. (People v. Green (1995) 34 Cal.App.4th 165, 182-183, citing People v. Beagle (1972) 6 Cal.3d 441, 453-454, accord, People v. Mendoza (2000) 78 Cal.App.4th 918, 925.)
Considering these factors to the extent they apply, and deferring to the trial court's finding, we cannot say the court abused its discretion in precluding the use of Smith's prior felony conviction for impeachment. Here, the record sheds no light on how Smith's nearly 20-year-old conviction for assault with a firearm would have been probative of his credibility as a witness in this case. While 20-year-old convictions are not too remote for impeachment purposes if they have not been followed by a crime-free life (People v. Mendoza, supra, 78 Cal.App.4th at pp. 925-926; People v. Burns (1987) 189 Cal.App.3d 734, 737-738; People v. Massey (1987) 192 Cal.App.3d 819, 825; see People v. Beagle, supra, 6 Cal.3d at p. 453 [a conviction from "long before" should generally be excluded on the ground of remoteness, if followed by a legally blameless life]), there is no evidence that Smith had any convictions since his 1991 conviction at the age of 19 years. The trial court did not abuse its discretion in excluding this evidence for purposes of impeachment.
We also reject Marez's contention the exclusion of Smith's prior felony conviction prevented Marez from presenting a viable defense and violated due process. 'As a general matter, the "[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' [Citations.]" (People v. Boyette (2002) 29 Cal.4th 381, 427-428; see also People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.)
While the trial court precluded Smith's impeachment with his old conviction, it did not otherwise prevent the defense from discrediting his testimony. Significantly, during cross-examination by Marez's counsel, Smith did not deny that Koch called Kent a "bitch" or that he threatened anyone. Rather, Smith testified to being unable to recall either the exact "gender-based" profanity that Koch used on Kent or any threats that Koch may have made that day. Smith further testified to having consumed six 12-ounce bottles of beer in the hour before arriving at the park, and then drinking brandy with Koch and defendants. Smith acknowledged being "drunk" at the park, and agreed his inebriated state probably affected his "thinking" in some way. Smith admitted, given the extent of his alcohol consumption, he did not know if he could remember what actually happened on the day of the killing. V. The Heat of Passion Instruction - Former CALCRIM No. 570.
The trial court instructed the jury on heat of passion with a former version of CALCRIM No. 570, which included the sentence: "In deciding whether the provocation was sufficient, consider whether a [sober] person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts." Marez contends this sentence rendered the entire instruction ambiguous, because it incorrectly implied that his conduct in killing Koch had to be a reasonable response to provocation.
Notwithstanding Marez's failure to object to the instruction at trial, we address the merits because he asserts the purported error implicated his substantial rights (see People v. Brown, supra, 31 Cal.4th at p. 539, fn. 7).
The challenged sentence in former CALCRIM No. 570 was revised in December 2008 to eliminate the ambiguity about which Marez complains. Although a portion of the instruction given in this case was ambiguous, an instructional error is not prejudicial if the jury necessarily resolved the factual question adversely to the defendant under other properly given instructions. (See People v. Kobrin (1995) 11 Cal.4th 416, 428.) For Marez, the jury was instructed on first degree manslaughter and second degree murder as well as voluntary manslaughter. In convicting Marez of first degree murder, the jury necessarily found he acted willfully, deliberately, and with premeditation in killing Koch. That state of mind is manifestly inconsistent with having acted in the heat of passion when he attacked Koch with the flashlight. (People v. Carasi (2008) 44 Cal.4th 1263, 1306.) Thus, it is not reasonably probable Marez would have received a more favorable verdict had the former version of CALCRIM No. 570 not been given. (See People v. McKinnon (2011) 52 Cal.4th 610, 679.)
In the revised instruction, the following sentence replaces the sentence challenged by Marez, "In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment." (CALCRIM No. 570.)
CALCRIM Nos. 500 [homicide: general principles]; 520 [murder with malice aforethought]; and 521 [murder: degrees].
VI. The Failure to Give Pinpoint Instructions
As a supplement to the instructions on voluntary manslaughter, Marez submitted two pinpoint instructions, which the trial court refused to give. He now contends the failure to give those instructions deprived him of his federal constitutional rights to a fair trial and to due process.
"A pinpoint instruction 'relate[s] particular facts to a legal issue in the case or "pinpoint[s]" the crux of a defendant's case, such as mistaken identification or alibi.' [Citation.]" (People v. Ward, supra, 36 Cal.4th at p. 214.) Pinpoint instructions are designed to discuss a theory, not specific evidence. (People v. Wright (1988) 45 Cal.3d 1126, 1137.) Pinpoint instructions must be given on request only when there is substantial evidence to support them and are not argumentative or duplicative. (People v. Stanley (2006) 39 Cal.4th 913, 946; People v. Marshall (1997) 15 Cal.4th 1, 39; Ward, at p. 214.) We review de novo whether the instructions correctly state the law. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, disapproved on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; People v. Posey (2004) 32 Cal.4th 193, 218.)
The first of Marez's proposed pinpoint instructions was: "The provocation which incites a defendant to homicidal conduct in the heat of passion must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim. The provocative conduct may be physical or verbal, and it may comprise a single incident or numerous incidents over a period of time." The trial court refused to give the instruction as duplicative of (former) CALCRIM No. 570 and CALCRIM No. 522. Marez argues that unlike his proposed instruction, the two CALCRIM instructions fail to define provocation. According to Marez, without his proposed definition, the jury may have believed that only verbal, not physical, conduct constituted provocation, and thus did not consider Koch's attempt to hit Marez in the face (before Marez struck him with the flashlight) as provocation.
As read to the jury, CALCRIM No. 522 provides, "Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed the murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. [¶] Also consider the provocation in deciding whether the defendant committed murder or manslaughter."
The trial court properly instructed the jury that provocation can arise from a sudden quarrel or heat of passion, and that provocation must be such as would cause a person of average disposition to act rashly and without due deliberation. (Former CALCRIM No. 570.) The court further instructed that "[h]eat of passion does not require anger, rage or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection." (Ibid.) While the court did not expressly tell jurors that provocation could be physical as well as verbal conduct, the instructions did not exclude physical provocation or suggest that provocation had to be verbal conduct.
However, even if the proposed instruction should have been given, because (former) CALCRIM No. 570 fully informed the jury that "no specific type of provocation is required," and the argument of Marez's counsel that Koch's violent behavior, including his verbal and physical threats of harm as well as his attempted sexual molestation, provided sufficient provocation, no prejudice can be demonstrated.
Marez's second proposed instruction was: "You have heard evidence of the violent character of decedent Daniel Koch arising from a prior incident involving defendant Quinn Marez. [¶] You may consider such evidence in determining whether Daniel Koch was acting in conformity with such violent character trait at the time of the killing in Limekiln Canyon Park on August 25, 2007. [¶] You may give such weight to this evidence as you deem appropriate." The second proposed instruction was also properly refused as argumentative, because it invited the jury to draw inferences favorable to one of the parties from specified items of evidence. (People v. Earp (1999) 20 Cal.4th 826, 886.) Instead, the trial court properly instructed the jury that, in considering whether Marez acted in imperfect self-defense, "If you find Daniel Koch threatened or harmed the defendant Quinn Marez in the past, you may consider that information in evaluating the defendant's beliefs." (Modified CALCRIM No. 571 on voluntary manslaughter, imperfect self-defense.)
VII. CALCRIM No. 371 - Consciousness of Guilt: Suppression and Fabrication of Evidence Instruction
Marez contends the trial court improperly instructed the jury with CALCRIM No. 371 over his objection. However, the record reflects that when the court indicated its belief the consciousness of guilt instruction was appropriate, Marez's counsel merely inquired how the instruction applied to Marez and then accepted the court's explanation, by answering, "Okay." In the absence of an objection at trial, Marez is precluded from challenging the giving of CALCRIM No. 371 for the first time on appeal. (See, e.g., People v. Valdez (2004) 32 Cal.4th 73, 137 [claim that instruction not supported by substantial evidence forfeited by the failure to object at trial].)
The trial court instructed the jury as follows: "If the defendant tried to hide evidence or discouraged someone from testifying against him, that conduct may show that he was aware of his guilt. [¶] If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] If the defendant tried to create false evidence or obtain false testimony, that conduct may show that he was aware of his guilt. If you conclude the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself. [¶] If you conclude that the defendant tried to hide evidence, discouraged someone from testifying, authorized another person to hide evidence or to discourage a witness, you may consider that conduct only against that defendant. You may not consider that conduct in deciding whether any other defendant is guilty or not guilty." (CALCRIM No. 371.)
Notwithstanding the lack of an objection, there was no error in giving the instruction. While the evidence was not overwhelming, it was certainly sufficient to support instructing the jury with CALCRIM No. 371. (People Hart (1999) 20 Cal.4th 546, 620 ["[I]n order for a jury to be instructed that it can infer a consciousness of guilt from suppression of adverse evidence by a defendant, there must be some evidence in the record, which, if believed by the jury, will sufficiently support the suggested inference.' [Citation.]"].) At trial, Kent and Thalheimer testified that when the trio met up at the convenience store, Marez announced his intention to go back to the scene to clean up. He left, carrying the flashlight, and was gone 10 to 20 minutes. Thalheimer testified that at some point after Marez rejoined them at the convenience store, he handed over a backpack that, unknown to Thalheimer, contained the flashlight Marez had used on Koch. During a police interview, Kent said that Marez was no longer wearing his shoes when he returned to the convenience store. She also told officers that the day after the killing Marez instructed her not to talk about it. From this evidence the jury could reasonably infer that Marez returned to the scene to hide or to destroy any incriminating physical evidence, including his shoes, that he attempted to hide or to dispose of the flashlight by putting it inside the backpack, which he carried back from the scene and gave to Thalheimer, and that he attempted to discourage Kent, a potential witness, from testifying. To the extent Marez's consciousness of guilt was even an issue in view of his admission that he killed Koch, the instruction was supported by substantial evidence.
Thalheimer left the backpack outside the home of Kent's father, who turned it over to police.
VIII. There Was Substantial Evidence to Support Marez's Conviction
A. Standard of Review and governing Law
To assess a claim of insufficient evidence in a criminal case, "we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
A murder that is willful, deliberate, and premeditated is murder in the first degree. (§ 189.) The element of deliberation means "careful weighing of considerations in forming a course of action," whereas the element of premeditation indicates "thought over in advance." (People v. Harris (2008) 43 Cal.4th 1269, 1286.) Neither deliberation nor premeditation requires an extended period of time. The test is "'whether the evidence supports an inference that the killing occurred as a result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]'" (People v. Bolin (1998) 18 Cal.4th 297, 331-332.)
B. The Evidence is Sufficient to Support Marez's First Degree Murder Conviction
Marez contends his conviction should be reduced to voluntary manslaughter because the evidence at trial demonstrated he could not have formed the requisite state of mind for first degree murder because Koch's threatening behavior at the scene and Marez's flashback to Koch's attempted molestation of him two years earlier precipitated Marez's violent reaction. Indeed, Marez maintains his killing of Koch is a classic case of voluntary manslaughter - a fatal assault carried out in the heat of passion that overtook his rational mind, and/or in the actual, but unreasonable belief he was in imminent danger of great bodily harm.
We have no doubt the jury, if it had fully credited Marez's testimony, could have found him guilty of voluntary manslaughter rather than of murder. But the jury was not obligated to accept Marez's account of Koch's provocative behavior on August 25, 2007 and in 2005. Rather the jury was free to disbelieve Marez's testimony that he was attacked by Koch on his return to the picnic table and subjected to attempted sexual assault by Koch in the park years earlier. Moreover, even without rejecting Marez's testimony entirely, there was ample evidence for a rational trier of fact to conclude the killing was deliberate and premeditated. As Marez himself testified, Smith had to restrain him from harming Koch at the picnic table for having insulted his girlfriend over the bottle of brandy. According to Kent, Marez was still angry when the trio left the scene and he decided to return five to 10 minutes later, flashlight in hand, to make Koch apologize. This evidence suggests Marez had a motive for subsequently killing Koch and the killing was planned, as borne out by Rayne Stanis's testimony that Marez said he had killed a homeless man who had called his girlfriend a bitch. Considering in addition to motive and planning the manner of killing supports a finding of premeditation and deliberation. Koch was highly intoxicated and unarmed at the time of his death. Marez personally administered 12 blunt force injuries before inflicting 52 stab wounds or encouraged Thalheimer to finish off Koch by inflicting them. This evidence supports an inference the killing occurred over a protracted period of time. (See, e.g., People v. Hovarter (2008) 44 Cal.4th 983, 1019-1020; People v. Davis (1995) 10 Cal.4th 463, 510.) Additionally, the evidence permitted a rational trier of fact to determine Marez had the opportunity to reflect on his actions when Emily Kent interrupted his attack. She came upon Marez holding a flashlight and standing near Koch, who was lying on the ground, moaning and covered in blood. In short, there was more than sufficient evidence to support the jury's finding of first degree murder.
Marez claims the verdict was the product of "a prosecutor's overzealous pursuit of a murder conviction by grossly misleading arguments" and "a trial judge's mistaken rulings," which permitted those arguments. Specifically Marez contends that during her initial closing argument, the prosecutor gave an incomplete explanation of voluntary manslaughter and an erroneous explanation of provocation, and in her rebuttal argument, the prosecutor was allowed to inject a new theory of defendants' motive in killing Koch that was not supported by the evidence. Although Marez does not appear to be contending the prosecutor committed misconduct in her arguments to the jury, he asserts that, unchecked by the trial court, the prosecutor "effectively told the jury this killing could not be manslaughter as a matter of law." In the absence of a claim of prosecutorial misconduct, we discuss the purported errors in the prosecutor's arguments and the court's rulings, and their prejudicial effect, if any under California law. (See People v. Watson (1956) 46 Cal.2d 818, 836, People v. Partida (2005) 37 Cal.4th 428, 439.)
To the extent Marez is contending the prosecutor committed misconduct in so arguing, this issue has been abandoned in light of the lack of legal argument or citation to authority. (See People v. Barnett (1998) 17 Cal.4th 1044, 1107, fn. 37.)
Marez's first challenge is to the prosecutor's argument that the only evidence upon which to convict Marez of voluntary manslaughter was his own testimony. "If you don't believe that he was molested, if you don't believe he was in fear for his life, that he believed - honestly believed he was in fear for his life then there's no basis for voluntary manslaughter --" Marez's counsel objected that the prosecutor's assertion was a misstatement of the law in that "it doesn't deal with heat of passion." The trial court agreed, and the prosecutor answered, "Okay. I will rephrase it. I apologize." The prosecutor corrected her earlier statement, explaining that voluntary manslaughter "can be reached in two ways, based on heat of passion or based on imperfect self-defense."
Marez claims the argument was prejudicial because "it is highly unlikely the sustained objection operated to unring the bell." However, once the trial court sustained the objection, the prosecutor acknowledged her error, apologized and revised her earlier misstatement to include both theories in accordance with the court's ruling. It is unreasonable to conclude under these circumstances that jurors did not perceive the prosecutor's argument as an honest mistake, and were instead persuaded to ignore the heat of passion theory of voluntary manslaughter in rendering their verdict.
Marez also contends the prosecutor misstated the law in closing argument when she was discussing the heat of passion theory of voluntary manslaughter, and explaining when it applies. She gave as "the classic example" the enraged husband or wife who discovers his or her spouse in bed with another person. "And under that rage and anger of the moment, you pick up a heavy lamp that's there, and you bash it in the person's head. You have clearly been provoked by the actions of your spouse and under the rage of seeing your spouse with somebody else, you have killed." Marez argues the philandering spouse example given by the prosecutor misstated the law and was inapplicable here because the requisite provocation can develop over time as it did in this case. Marez's counsel, however, never objected to this portion of the prosecutor's argument, which deprived the court of the opportunity to cure any prejudice that may have resulted from a misstatement of the law. (People v. Young (2005) 34 Cal.4th 1149, 1188.) In any event, the prosecutor did not, as Marez now claims, argue the provocation must occur immediately before the killing. The prosecutor simply illustrated a situation in which the jury might reasonably find provocation sufficiently timely to justify reducing murder to voluntary manslaughter and contrasted it with the example of a betrayed spouse who delays, by days or weeks, a lethal response to the infidelity. The prosecutor used this latter example as a basis to argue Marez was no longer acting in the heat of passion when he bludgeoned Koch nearly three years after the attempted sexual molestation. This was fair comment on the evidence and consistent with the prosecution's theory.
The prosecutor further argued (again without defense objection) that it was reasonable to believe that Marez fabricated the attempted sexual molestation because, if it in fact had occurred, "you would expect a person to act rashly at that time. You would expect the person to strike out and kill at that time. You wouldn't expect the person to wait two-and-a-half years, then sit down with their alleged attacker, share a meal and drink, then come back and kill." Counsel for Marez attempted to counter this argument by reminding jurors that children typically refrain from disclosing sexual abuse when it happens. The prosecutor interposed an objection, which the trial court sustained. Marez's counsel then suggested that there were a variety of reasons a 15-year-old boy may not report the attempted molestation to authorities, "so [the prosecutor's] statement that you would expect someone, a child abuse victim, to strike out at the time it happens and kill at the time it happens is just - it's not supported by reality."
Marez argues the trial court's ruling prevented his counsel from meaningfully countering the prosecutor's "grossly misleading argument." The prosecutor's argument that Marez's testimony of sexual abuse was not credible because of his delayed reaction to it was not improper. Nor was the trial court wrong in preventing Marez's counsel from arguing the concept of delayed reporting, not only because there had been no expert testimony at trial to support it, but also because the concept did not serve to rebut the prosecutor's argument.
Finally, Marez contends the prosecutor committed misconduct during her rebuttal argument by injecting a new theory as to defendants' motive in killing Koch for which there was no evidence adduced at trial. The prosecutor argued, "I would submit to you that these two - two reveled in what they did. CNN had a report in the last year or so indicating that there is a rise in the killing of the homeless; they are throwaways in society for many people, no one will care if we kill them. No one will report it--" A defense objection on the ground of no expert testimony was overruled by the trial court, and the prosecutor continued, "They might not have any family, they might not be important. And there have been reports of homeless being burned, being attacked, and this appears to be a sport killing by the defendant[s]."
We agree with Marez there is no evidentiary support for this new theory of defendants' motive, and the court should have sustained the defense objection. Nonetheless, the prosecutor's brief, albeit ill-advised, remarks could hardly be interpreted as telling the jury the killing could not have been manslaughter as a matter of law. Moreover any possible prejudice from these remarks were fully dissipated by the trial court's instructions that the jury is to use only the evidence to decide the facts and that the attorneys' remarks during argument are not evidence. (CALCRIM Nos. 200 and 222.) In the absence of any contrary indication, the jury is presumed to have considered and followed the instructions. (See People v. Gray, supra, 137 Cal.App.4th at p. 217.)
IX. The Impeachment of Thalheimer with Prior Juvenile Adjudications
Thalheimer contends the trial court committed reversible error when it allowed the prosecution to introduce evidence of his prior juvenile court adjudications for aggravated assault on a police officer and by prohibiting the defense from introducing evidence of the conduct underlying one of those adjudications.
A. The Facts Underlying the Impeachment
The prosecutor indicated that if defendants chose to testify, she would seek to impeach them with their prior juvenile adjudications, including a January 2006 adjudication for assault with a deadly weapon on a peace officer (§245, subd. (c)) that defendants committed together. The prosecutor also intended to impeach Thalheimer with a September 2006 adjudication in which he admitted assaulting a peace officer with a deadly weapon, and an April 2007 adjudication in which he admitted taking a vehicle without the owner's permission (Veh. Code, § 10851).
Following a hearing, the trial court ruled the prosecutor could impeach Thalheimer with his admission of having taken or driven a vehicle without the owner's consent. As for the aggravated assaults on police officers, the court concluded the violent nature of the offenses made them more prejudicial than probative within the meaning of Evidence Code section 352. The court decided to sanitize these prior adjudications by allowing the prosecutor to elicit evidence of admissions to unspecified felonies. The court, however, warned the defense about the danger of opening the door to the violent nature of these prior adjudications. The court admonished counsel if Thalheimer were to testify to the effect that he "was a peaceful person, that he only engaged in the conduct that resulted in the murder at the encouragement or understanding the - based on the acts of defendant Marez and his telling him to do so, that also would put into play his prior acts of violence." Such testimony, the court determined, would allow the prosecutor to introduce evidence of Thalheimer's prior juvenile adjudications for aggravated assault on a police officer, but not of their underlying conduct pursuant to Evidence Code section 352.
When Thalheimer testified in his defense, he acknowledged having admitted in juvenile court on January 25, 2006 and September 1, 2006 that he committed a felony of moral turpitude, and on April 19, 2007 that he took a car without the owner's permission. During direct examination, Thalheimer also testified that he walked away from the picnic table upon realizing Marez was enraged over Koch's behavior towards Emily Kent. Thalheimer was concerned that Marez's "anger was going to get us beat up" by Koch and Smith. Thalheimer rejoined the others at the picnic table after Smith had physically restrained Marez. When Marez and Kent decided to leave, Thalheimer apologized to Koch because he wanted to stay. Thalheimer further testified that he subsequently decided to return with Marez to the picnic table hoping to diffuse Marez's rage by persuading Koch to apologize. Although Koch apologized, Marez attacked, bludgeoning and stabbing Koch without Thalheimer's assistance. Thalheimer testified on direct and cross-examination that he did not intervene to stop Marez, fearing that Marez would similarly attack him. Thalheimer added during direct examination, "I've never - I've never done anything - I've never been involved in anything like this in my life, you know. It was just a - real shocking for me."
On both cross-examination and redirect examination, Thalheimer testified to having previously seen Marez get angry, but not to the degree he was on night of the killing. On those prior occasions, Thalheimer was able to calm Marez by talking to him.
At the conclusion of Thalheimer's testimony, the prosecutor argued, outside the presence of the jury, that Thalheimer had opened the door to being questioned about the aggravated assault on a police officer that he committed with Marez. Over defense objections, the trial court agreed, finding that Thalheimer had opened the door with his broad statement of never before doing anything like this. The court, however, restricted the prosecutor to introducing evidence of the prior adjudications - i.e., the offenses that Thalheimer had admitted - but not of their underlying conduct.
On recross-examination, Thalheimer admitted having a January 25, 2006 juvenile adjudication for assaulting a peace officer with a deadly weapon. When Thalheimer was asked if he made a September 1, 2006 admission in juvenile court for having assaulted a peace officer with a deadly weapon, Thalheimer said, "I did not." To impeach Thalheimer, the prosecutor advised the trial court she was prepared to introduce the juvenile court "packet" of the September 1, 2006 adjudication. In response, counsel for Thalheimer sought to introduce the underlying conduct that resulted in the admission (purportedly "head-butting" a police officer to escape arrest). The trial court denied the request, finding the presentation of such evidence would be more prejudicial than probative. Given the court's ruling, counsel for Thalheimer stipulated that on September 1, 2006, Thalheimer admitted in juvenile court to having assaulted a peace officer with a deadly weapon.
B. The Trial Court's Initial Ruling Was Proper
Thalheimer acknowledges the trial court's initial ruling was sound. Faced with two prior felonies involving moral turpitude (see People v. Rivera (2003) 107 Cal.App.4th 1374, 1381-1382; People v. Wheeler, supra, 4 Cal.4th at pp. 290-297 & fn. 7), the prosecutor's need to counter any false aura of veracity should Thalheimer testify (People v. Turner (1994) 8 Cal.4th 137, 201), the risk that the violent offenses against police officers might be misused by the jury as propensity evidence in this particularly gruesome murder, and the effect if Thalheimer did not testify for fear of impeachment with his prior adjudications (see People v. Green, supra, 34 Cal.App.4th at p. 182), the court properly sanitized the prior adjudications as nonspecific felonies, which Thalheimer then admitted during his testimony. (See, e.g., Rivera, supra, 107 Cal.App.4th at p. 1382 [trial court properly allowed prosecutor to impeach the defendant with having engaged in conduct amounting to a misdemeanor that involved moral turpitude where the defendant had admitted in a juvenile proceeding to possessing a deadly weapon with the intent to assault another person].)
C. The Modification of the Initial Ruling to Introduce Evidence of Aggravated Assault Adjudications Was Not Reversible Error
Thalheimer contends his statement, ""I've never - I've never done anything - I've never been involved in anything like this in my life, you know. It was just a - real shocking for me,"" could not have reasonably been interpreted as opening the door to introducing evidence of his prior juvenile adjudications. Thalheimer argues the trial court's decision to permit the prosecutor to introduce evidence that he admitted committing aggravated assaults on police officers was prejudicial error because they likely prompted jurors to improperly consider these prior adjudications as propensity evidence in convicting him of murder. We disagree.
As with all relevant evidence, the trial court retains broad discretion to admit or exclude evidence offered for impeachment. (Evid. Code, § 352, People v. Rodriguez, supra, 20 Cal.4th at p. 9.) "A trial court's exercise of discretion in admitting or excluding evidence is reviewable for abuse [citation] and will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]." (Rodriguez, at pp. 9-10.)
Evidence Code section 780, subdivision (i) allows the trier of fact to consider the existence or nonexistence of any fact testified to by a witness in determining the credibility of a witness. Evidence Code section 787 mandates that evidence of specific instances of a witness's conduct relevant only as tending to prove a trait of the witness's character are inadmissible to attack or support the credibility of a witness. "[A] witness who makes a sweeping statement on direct or cross-examination may open the door to use of otherwise inadmissible evidence of prior misconduct for the purpose of contradicting such testimony." (Andrews v. City and County of San Francisco (1988) 205 Cal.App.3d 938, 946.) This rule prevents witnesses from misleading the jury or misrepresenting facts. (People v. Robinson (1997) 53 Cal.App.4th 270, 282-283; see, e.g. People v. Cook (1983) 141 Cal.App.3d 224 [defendant who denied ever possessing a
Gun was properly impeached with his prior guilty plea to a misdemeanor stolen gun charge]; People v. Reyes (1976) 62 Cal.App.3d 53 [defendant who denied being a bookmaker on direct examination was subject to impeachment with an otherwise inadmissible misdemeanor conviction for bookmaking].)
Here, the evidence that Thalheimer had previously admitted committing aggravated assaults on police officers was relevant to impeach Thalheimer's statement of never before having been involved in any similar violent conduct. This statement was particularly misleading to the jury, because Thalheimer made it in conjunction with his testimony to the effect that he typically reacted to Marez's rages either by physically distancing himself from Marez, or by trying to calm Marez by talking to him. Thus, evidence of Thalheimer's prior adjudications for aggravated assault belied the impression that, unlike Marez, Thalheimer consistently tried to avoid being exposed to, let alone engage in, acts of violence.
The trial court expressed a concern that the jury would view evidence of Thalheimer's prior adjudications as indicating his propensity for violence, in that the aggravated assaults had occurred within the last two years of the charged murder, when Thalheimer had only recently turned 18, and he acted with Marez in committing the first aggravated assault against a lone victim, who was also a peace officer. However, because the court limited the prosecutor to questioning Thalheimer about the fact of his prior adjudications, rather than about his conduct underlying those adjudications, while the evidence as prejudicial, it was not unduly prejudicial. "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial."'" (People v. Karis (1988) 46 Cal.3d 612, 638.) We find no abuse of discretion.
D. The Denial of Thalheimer's Request to Offer Evidence of Underlying Conduct Was Proper
Thalheimer further asserts the trial court was "just wrong" in refusing to allow him to introduce evidence of the underlying conduct to mitigate the effect on the jury of the September 2006 aggravated assault. However, at the point in the proceedings when Thalheimer sought to introduce such evidence, the issue was whether he testified truthfully in denying that he had previously admitted committing the aggravated assault. The circumstances of the aggravated assault or Thalheimer's underlying actions plainly had no tendency in reason to prove that Thalheimer had in fact admitted committing the offense on September 1, 2006. (See Evid. Code, § 210.) Thus, even if evidence of his underlying conduct would have, as Thalheimer claims, dispelled the impression that the incident was either heinous or violent - which we highly doubt - that evidence did not meet Thalheimer's earlier testimony. The trial court properly excluded it. (See People v. Rodriguez, supra, 20 Cal.4 th at p. 10.)
X. The Exclusion of Prior Consistent Statements
Thalheimer complains that he was prejudiced by the trial court's exclusion of prior consistent statements attributed to Matthew Ellerbrock and to him.
A. Governing law
Under Evidence Code section 1236, evidence of a statement previously made by a witness is potentially admissible "if the statement is consistent with his testimony at the hearing and is offered in compliance with Section 791." Evidence Code section 791 provides: "Evidence of a statement previously made by a witness that is consistent with his testimony at the hearing is inadmissible to support his credibility unless it is offered after [¶] (a) Evidence of a statement made by him that is inconsistent with any part of his testimony at the hearing has been admitted for the purpose of attacking his credibility, and the statement was made before the alleged inconsistent statement; or (b) An express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (See also People v. Smith (2003) 30 Cal.4th 581,630.)
B. The Exclusion of Matthew Ellerbrock's Prior Consistent Statement Was Harmless Error
Matthew Ellerbrock was called by the prosecution to recount a conversation he had with defendants outside his apartment on August 29, 2007, five days after the murder. Marez described to Ellerbrock how he had killed a homeless man and Thalheimer had just stood by, refusing to help him. During this conversation, Thalheimer said nothing to indicate he had participated in the killing.
In response, the prosecutor impeached Ellerbrock with a recorded statement he made to police in October 2007 following his arrest on an unrelated case. During the police interview, Ellerbrock said that on August 29, 2007, Thalheimer admitted he had stabbed the victim at least 20 times. When the prosecutor questioned Ellerbrock about the discrepancy between his trial testimony and his recorded interview, Ellerbrock claimed what he told police about Thalheimer's participation in the killing was untrue; that he had lied during the interview, in the hope of receiving a better outcome in his own case and to punish Thalheimer for having made sexual advances towards his girlfriend Rayne Stanis.
Ellerbrock's recorded interview with police was played for the jury.
Counsel for Thalheimer sought to rehabilitate Ellerbrock by introducing a prior consistent statement Ellerbrock made to Donna Levy before he was interviewed by police. Counsel made an offer of proof that Levy would testify Ellerbrock told her that Marez had admitted killing the victim alone; that Thalheimer did nothing. Following a hearing, the trial court excluded the proffered testimony as more prejudicial than probative.
The trial court abused its discretion by excluding evidence that Ellerbrock made an earlier statement exonerating Thalheimer that was consistent with his trial testimony. A prior consistent statement is admissible so long as it was made prior to the suggested inducement or motive for fabrication has arisen. (People v. Noguera (1992) 4 Cal.4th 599, 629; accord, People v. Hillhouse (2002) 27 Cal.4th 469, 4911-4912.) Ellerbrock's purported statement to Levy was made before the arrest and police interview in an unrelated case. This statement was relevant to refute the prosecutor's suggestion that Ellerbrock fabricated his trial testimony, but had been truthful in telling police that Thalheimer had joined Marez in killing Koch. The trial court may well have been correct that Ellerbrock had been so discredited as a heroin user and convicted felon that he could not have been rehabilitated by the proffered evidence. Nonetheless, Ellerbrock's credibility was for the jury to resolve. (See CALCRIM No. 226.)
Although the trial court erred in excluding the prior consistent statement, the error was harmless. (People v. Partida, supra, 37 Cal.4th at p. 439, People v. McNeal (2009) 46 Cal.4th 1183, 1203.) The excluded statement did not preclude Thalheimer, through his testimony, from presenting evidence that he did not participate in killing Koch. Moreover, the trial court permitted Donna Levy to testify about a different conversation she had with Stanis, in Ellerbrock's presence, in which Stanis said that Thalheimer sat quietly, while Marez boasted about having beaten and stabbed Koch. Thus, the excluded statement served merely to corroborate the testimony of Thalheimer and Levy and played a subsidiary role in Thalheimer's defense. Nor did the prosecutor or counsel for Marez take advantage of the erroneous ruling. During closing argument, all counsel characterized Ellerbrock as an unreliable witness.
Finally, Thalheimer's claim to the contrary notwithstanding, there was ample evidence to support the verdict of first degree murder. Kent provided a motive for the killing, by establishing that both defendants were angry with Koch by the time they reached the bridge beyond the picnic table. Kent also connected Thalheimer to the Leatherman tool. Minutes after defendants left to confront Koch, Thalheimer returned, holding the Leatherman tool in bloody hands. Kent further demonstrated that Thalheimer showed consciousness of guilt after the killing by tossing his tennis shoes on top of the 7-Eleven and instructing her not to talk about what she had seen. Kent also testified that Thalheimer had admitted to her that he had cut Koch's neck and wrist with the Leatherman tool.
Other evidence also served to incriminate Thalheimer and to disprove his claim he sat idle. Marez implicated Thalheimer in the killing, as did Amanda Welch and Stanis, both of whom testified that Thalheimer admitted to having cut a man's throat after being encouraged by Marez. Welch also testified that Thalheimer asked her to provide him an alibi.
C. The Exclusion of Thalheimer's Prior Consistent Statements Was Not Error
Thalheimer contends the trial court prejudicially erred by excluding the proffered testimony of three witnesses, Elizabeth Kazandjieff, Father Hedges and Dan Wilson as prior consistent statements. Counsel for Thalheimer argued that Thalheimer made statements to each of these people, that were consistent with his anticipated trial testimony of having witnessed, but not participated in, the killing of Koch. Counsel made an offer of proof that Thalheimer first made such a statement to Elizabeth Kazandjieff on September 2, 2007, blaming Marez entirely for the murder. Thalheimer next asserted his innocence to Father Hedges in a non-privileged conversation after he fled to Santa Barbara. Finally, at the time of his arrest, Thalheimer made a similar statement to Officer Dan Wilson.
According to the prosecutor, Thalheimer asserted his innocence to Elizabeth Kazandjieff and decided to flee to Santa Barbara, after learning Marez had been arrested. While on the run in Santa Barbara Thalheimer made a similar statement to Father Hedges that he did nothing while Marez killed Koch. Following his arrest, Thalheimer again blamed the killing on Marez, this time to Officer Wilson. The trial court agreed with the prosecutor that the proffered evidence did not qualify as prior consistent statements under Evidence Code section 791.
We find no error. Evidence Code section 791, subdivision (a) requires that the prior consistent statement be made "before the alleged inconsistent statement [.]" (Emphasis added.) Here, the prior consistent statements to the three witnesses occurred at the earliest, one week after the inconsistent statements to Kent, Welch, Ellerbrock and Stanis. Nor does Evidence Code section 791, subdivision (b) apply, which requires the prior consistent statement to be made "before the bias, motive for fabrication, or other improper motive is alleged to have arisen." (Emphasis added.) Based on the prosecutor's offer of proof, Thalheimer proclaimed his innocence to Elizabeth Kazandjieff and to Father Hedges when he became aware of Marez's arrest and decided to flee, and to Officer Wilson after he was arrested.
XI. The Motions for Separate Trials or Separate Juries
Defendants contend the trial court's denial of their motions for separate trials or separate juries based on their conflicting and irreconcilable defenses was reversible error. We find the trial court properly exercised its broad discretion in denying the motions.
The crux of defendants' motions was that if they were tried jointly then Marez would be prejudiced by certain character evidence introduced against him by Thalheimer that would not be admissible in a separate trial for Marez. Defendants redacted the purported facts supporting their individual motions. The court agreed, over the prosecutor's objections, to hold an in camera hearing on the evidence that Thalheimer wished to introduce against Marez. At the conclusion of the hearing, the court denied the severance motions. We have reviewed the transcript of the in camera hearing. The character evidence (alleged prior bad acts) is not the subject of any issue on appeal.
A. Governing Law
The legislative preference is for joint trials, although the trial court may exercise discretion to order separate trials depending on the circumstances based on such factors as an incriminating confession, prejudicial association with codefendants, likely confusion from evidence on multiple counts, conflicting defenses, and the possibility that at a separate trial a codefendant would give exonerating testimony. (§ 1098; see People v. Burney (2009) 47 Cal.4th 203, 236-237; People v. Massie (1967) 66 Cal.2d 899, 917.) The use of dual juries avoids the necessity for complete severance when the evidence to be offered is not admissible against all defendants. (People v. Cunningham (1993) 4 Cal.4th 1233, 1287.)
We review for abuse of discretion the trial court's denial of a motion for separate trials or separate juries based on the facts known and the showing made at the time of the motion. (People v. Letner and Tobin (2010) 50 Cal.4th 99, 150.) '""If the court's joinder ruling was proper at the time it was made, a reviewing court may reverse a judgment only on a showing that joinder "'resulted in "gross unfairness" amounting to a denial of due process."" [Citation.]" (Ibid.)
B. Denial of Separate Trials or Separate Juries Was Not Reversible Error
Here only Marez's and Thalheimer's conflicting defenses suggested that separate trials or separate juries might be necessary. However, both defendants acknowledge that conflicting or antagonistic defenses alone do not compel severance. (Zafiro v. United States (1993) 506 U.S. 534, 540 [110 S.Ct.1190] [conflicting defenses are not prejudicial per se; "defendants are not entitled to severance merely because they may have a better chance of acquittal in separate trials."]; accord, People v. Cleveland (2004) 32 Cal.4th 704, 726.) Nonetheless, Marez maintains that in view of their conflicting defenses, certain extrajudicial statements and testimony by Thalheimer implicated Marez, which would not have been admissible in a separate trial. Specifically, Marez points to Thalheimer's testimony that Marez voiced his intent to kill Koch before sneaking up to attack him and then telling Thalheimer to finish the job and to Welch's testimony that Thalheimer admitted having slashed Koch's throat at Marez's behest. Marez claims that without this evidence, he would not have been convicted of first degree murder.
For his part, Thalheimer refers to an instance in which the trial court refused to admit prior consistent statements that Ellerbrock supposedly made to Donna Levy following an objection by Marez's counsel, as being more prejudicial than probative under Evidence Code section 352. Thalheimer argues that because the statements were "crucial to [his] defense," their exclusion at the request of counsel for Marez is demonstrable prejudice. We have already addressed the substance of his claim and found it without merit.
Admission of this evidence in defendants' joint trial did not result in reversible error in light of the strong independent evidence of Marez's guilt, particularly Kent's testimony and the incriminating extrajudicial statements attributed to Marez by other witnesses. (See Letner and Tobin, supra, 50 Cal.4th at p. 150 [If, "'there exists sufficient independent evidence against the moving defendant, it is not the conflict alone that demonstrates his or her guilt, and antagonistic defenses do not compel severance.' [Citations.]"].) Significantly, this is not a case where the prosecution theorized that only Marez or Thalheimer could have been guilty and left it them to convince the jury that his codefendant killed Koch. Instead, the prosecution produced ample evidence that they were both guilty of first degree murder. We find there was no abuse of discretion in denying separate trials and separate juries, and no prejudice from a joint trial on the first degree murder charge.
XII. The Jury Was Properly Instructed with CALCRIM No. 401
Thalheimer testified that although he was present when Marez killed Koch, he did not intervene, fearing Marez might harm him. At trial, Thalheimer unsuccessfully objected to CALCRIM No. 401 as defective because it suggests that simply being present is sufficient to find guilt as an aider and abettor. On appeal, he asserts that the instruction is confusing and does not correctly state the law on aiding and abetting in violation of his constitutional rights.
The trial court instructed: "To prove that the defendant is guilty of a crime based on aiding and abetting the crime, the People must prove that, 1, the perpetrator committed the crime; 2, the defendant knew the perpetrator intended to commit the crime; 3, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and 4, the defendant's words or conduct did in fact, aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows the perpetrator's unlawful purpose and if he or she specifically intends to, and does, in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude the defendant was present at the scene of a crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him [or her] an aider and abettor."
In People v. Stallworth (2008) 164 Cal.App.4th 1079, the defendant similarly argued that CALCRIM No. 401 is constitutionally deficient because it does not explicitly provide that mere presence or knowledge is insufficient to establish aiding and abetting liability. We determined the language of the instruction demonstrates otherwise. The instruction makes clear "that knowledge that the perpetrator intends to commit the crime is only one of the four elements for aiding and abetting liability. If the jury found mere knowledge alone, by the terms of CALCRIM No. 401, that would be insufficient to establish aiding and abetting liability." (Ibid.)As we did in Stallworth, we conclude the instruction is neither confusing nor incomplete.
XIII. There Was No Cumulative Error Warranting Reversal
Finally, defendants contend that, even if no single error is sufficiently prejudicial to require reversal, the cumulative prejudice of the trial court's errors requires reversal. In this regard, Marez focuses on the two recorded police interviews of Kent, which the prosecutor used to impeach her inconsistent trial testimony. Marez argues, without citation to authority, that while the court "did delete some objectionable material" from the transcripts as urged by counsel, three portions remained over his objection, which invited jurors to infer that certain damaging evidence against Marez was being withheld from them at trial. In the first portion, a detective conducting the interview told Kent, "Because you know you're not telling us the truth." In the second, the detective expressed his disbelief as to what Kent represented as the order of the trio's arrival at the 7-Eleven following the killing. Specifically, the detective said, "Because we know how you guys got there, and we saw you guys, how you got there, okay? And the order that you're telling this is not the way you guys got there." In the third and final portion, the detective asked Kent, what Marez had in his hands at the convenience store. When Kent answered, "What did he have?" The detective responded, "You tell us. We know." Kent subsequently said that Marez had a flashlight. After reciting these portions, Marez acknowledges that, "[o]f themselves, these evidentiary errors might not be deemed reversible error. However, in juxtaposition with other serious errors, the prejudice cannot be underestimated."
Assuming, without deciding, that the failure to redact these portions of the transcripts constituted error we agree it was harmless, and reject defendants' contention that the cumulative effect of any errors during trial requires that we reverse the verdict of first degree murder for either defendant. None of the errors we identified, individually or cumulatively "'"significantly influence the fairness [of defendants'] trial or detrimentally affected"'" the fact finder's determination of their individual guilt. (People v. Valdez (2004) 32 Cal.4th 73, 139.) Defendants were not prejudiced.
For purposes of preserving his federal rights, Thalheimer argues the use of his two juvenile adjudications for assault on a peace officer to sentence him as a third-strike offender violated his constitutional right to jury trial. The California Supreme Court in People v. Nguyen (2009) 46 Cal.4th 1007, 1028, rejected a similar constitutional challenge to the use of a juvenile adjudication as a prior strike. We are obligated to follow Nguyen. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
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DISPOSITION
The judgment is affirmed.
ZELON, J. We concur:
PERLUSS, P. J.
WOODS, J.