Opinion
B220750
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. ANGEL MARTINEZ, Defendant and Appellant.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Roberta L. Davis, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MA 034053)
APPEAL from a judgment of the Superior Court of Los Angeles County, Hayden Zacky, Judge. Affirmed.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Angel Martinez of voluntary manslaughter for the killing of Albert Harris. Appellant contends that the trial court erred when it admitted custodial statements in alleged violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda), and further, that the court committed several evidentiary and instructional errors. We affirm.
STATEMENT OF FACTS
1. Prosecution Evidence
On December 11, 2005, Matthew Carroll and Harris, the victim, went to a bar called Schooners. Carroll was inebriated; in his experience, he has sometimes had problems with his memory of what occurred while he was inebriated. Carroll and Harris were at Schooners for a couple of hours and danced with some girls. They left Schooners when it closed for the night at approximately 2:00 a.m. on December 12.
They then went to a nearby AM/PM to buy something to eat, but the store was closed. At that point they noticed a brown or tan van parked next to the store in a driveway. Carroll saw the driver of the van, Keith Johnson, wave them over. He and Harris started to walk over to the van. Harris took a direct route to the van, jumping over some dirt mounds to get there. Carroll tried to follow him and do the same, but because he was tripping over the mounds, he took a different route. On his way to the van, Carroll tried to jump over a chain link fence and fell down. He hit his chin on the ground and became "a little dazed" and "started spinning a little."
When he got up and looked over to the van, Harris was talking to the driver. He took approximately 10 steps toward the van when he heard another car coming. A white van came up fast on them and came to a screeching stop, and a Hispanic male jumped out. Carroll saw the man for only a "split second." He testified that appellant was not the man who had a shaved head and sounded "like a little child." The man said, "Where are you vattos from?," and then "Harpys gang." Carroll heard the sound of a gun cocking and ran for cover behind a dumpster. He heard approximately five or six shots. When he heard the sound of a car screeching away, he went to Harris, who was lying on the ground and gasping for air.
Johnson, the driver of the tan van, had four children in the car with him that night. He saw the white van coming toward his car in the driveway of the AM/PM. It blocked his way, so he stopped approximately 17 feet from the white van. Johnson saw Carroll and Harris emerge from the area of the chain-link fence, both unarmed. Johnson saw two Hispanic men jump out from the white van, one from the driver's side and one from the passenger's side. All four men met up at the passenger's side of the white van, and a scuffle ensued. Johnson saw the flash of a gun muzzle and heard gun fire. The man who came from the passenger's side had the gun. He saw only one shooter during the scuffle. When he heard the gunfire, he put his car in reverse and began to back out of the driveway. The white van suddenly flew past him, and after that he stopped backing out and went back down the driveway to see what was happening. He saw someone lying on the ground, saw a security guard, and called him over. The guard called the sheriff's department. Johnson then checked his van, which had a gun shot hole in the side and three rounds inside the van. Detective Robert Gillis of the Los Angeles County Sherriff's Department arrived at the scene sometime between 2:30 and 3:30 a.m. He found Harris on the ground with the fire department working on him.
Harris suffered from four gunshot wounds -- one in the chest, one in the lower torso, one to the abdomen, and one to the back just below the shoulder blade -- and died as a result of these wounds. The bullet fragments recovered from Harris's body, the casings from the scene, and a bullet recovered from Johnson's van were determined to have been fired from a nine-millimeter Glock.
A few days after the shooting, Carroll picked appellant's picture out of a six-pack and wrote, "looks familiar," by which he meant that the appellant's picture looked like the man who jumped out of the white van and shot. At trial, Carroll testified that appellant was not the shooter that night. He also said that appellant's appearance in court was different than the appearance of the person he circled in the six-pack. He noted that appellant had more hair than the person in the six-pack and a tattoo on his chin, which the person in the six-pack did not.
Around December 16, 2005, five days after the shooting, Detective Gillis was near the EZ-8 Motel in Palmdale. The detective went to the motel because a security guard flagged him down and directed him to a room at the motel. He knocked on the door of the room and appellant's codefendant, Andrew Dorame, opened the door. Appellant was also in the room. The detective said that appellant did not look the same at trial as he did at the motel in December 2005. Appellant's appearance differed in that, in December 2005, his head was completely shaved, he was not wearing glasses, and he did not have a tattoo on his chin. At trial, he had a tattoo of an "H" on his chin. After some time at the motel, Detective Gillis noticed a white Chevy Astro van in the parking lot approximately 50 yards from appellant's and Dorame's room. The white van was registered to Dorame's address.
The detective arrested appellant that night at the motel. On the way to the station, Detective Gillis read appellant his Miranda rights, and appellant indicated he understood them and wanted to talk to the detective. He told the detective what occurred on December 11, 2005, at the AM/PM. Using a ruse, the detective told appellant that he knew appellant was at the scene of Harris's shooting. Appellant told the detective he was at the AM/PM with two "homies" in a stolen white minivan. Appellant said he was in the front passenger seat and Dorame was the driver. A third person was in the backseat. Appellant said they wanted to "hit the fool up." According to the detective, "hit the fool up" is a gang challenge. Appellant then told the detective the man in the backseat "shot the fool" with a Glock nine-millimeter gun. The detective told appellant someone had yelled "Harpys Gang," or "This is Harpys," at the scene, and asked if he had done that. Appellant said one of his "homies" had done that, but he wished he had because it was "his hood."
The detective felt as though he had established a rapport with appellant. Detective Gillis told him he would have to call homicide detectives, and appellant said he would talk to them, but only if Detective Gillis was there, otherwise he would not talk to them. After the detective booked appellant at the station, appellant said he needed "to get the incident off of his chest and that he knew it was going to cause him to be away from his child."
Detective Jeffrey Leslie and Sergeant Jeffrey Cochran from homicide interviewed appellant on December 17, 2005, at the jail. Detective Gillis was also present. The transcript was played for the jury. Appellant told the detectives he was trying to be honest and to "get this burden off [his] chest." Appellant told the detectives that on the evening of December 11, 2005, he and Dorame and another individual were at a Motel 6 drinking beer and getting high. They got hungry and decided to go the AM/PM. Dorame was driving his mother's white van, the same one Detective Gillis saw at the motel, and appellant said he was in the back. They pulled into an alley and saw a man standing near another van, or possibly a car. He also saw two Hispanic men coming from what appeared to be behind a gate. All three of them exited the van and were on the passenger side. One of the Hispanic men was approaching at a fast walk. The man also placed his hand inside his waist band and moved it towards his back, and appellant believed it was possible he had a gun. That was when he shot the man. Appellant said he asked Dorame for a gun and shot the man with a gun that Dorame handed him from the back of the white van. Appellant did not indicate that anyone else had a weapon or threatened him before he shot. He said he shot him in the abdomen and chest area. Appellant said he was a member of the Harpys gang and said "Harpys" at the scene of the shooting. Appellant and his companions drove off in the white van after the shooting. He was dropped off at some point and spent the remainder of the night on the streets. He left the gun in the van.
On December 24, 2005, law enforcement recorded a conversation between appellant and his mother, Lenora Belmares, during a jail visit. The prosecution played this conversation for the jury. In the recording, appellant told his mother, "I don't care no more. Tell the cops I did it too. Keep to that. God knows." At another point he said, "Got no fuckin' rights in here. I'm a fuckin' murderer." When appellant's mother asked what he wanted her to do, he responded, "Oh, right, uh, that's what I'm saying, don't even worry about anything no more. Just leave it alone. F a lawyer. Don't -- I just want to go to my preliminary hearing. I'm just gonna tell 'em that I did it. Just go ahead and sentence me already." Appellant then said the following:
"[APPELLANT]: Did what I did, I probably deserve the death penalty, whatever, know what I'm saying? Fuck it. Shit. That's why he's resting in peace now. Shit.
"BELMARES: Who?
"[APPELLANT]: That's why he's resting in peace now. And his fuckin' family crying like that. Shit. Fuckin' care no more, dude. Acting like that. Shit. Going through the heart right now. So trying to be Superman and shit, bullet proof and shit. I'm telling you, man, you don't even know."
Detective Gillis testified as a gang expert. The detective determined that Harris was from a different gang than the one claimed by appellant, Harpys. Harris had numerous gang tattoos indicating he was part of a San Fernando Valley gang. The San Fernando gang did not work together with the Harpys gang. The detective testified that if two gang members get out of a car to confront someone, they are obligated to back up each other. If a gang member does not back up his fellow member in that situation, there would be consequences, such as expulsion from the gang and a beating.
2. Defense Evidence
At Schooners, Harris was dancing, talking, and "making out" with Christina Gardner. Surveillance taped showed Harris had a confrontation with a man at the bar in the presence of Gardner. As part of his investigation, Detective Leslie spoke to Gardner and found out about her ex-boyfriend, James Johnson. James had access to a white van, and law enforcement had information that he was a Harpys gang member. Gardner told Sergeant Cochran that James was with her the night of the shooting. Law enforcement later learned, however, that James had an arrangement with Gardner; whenever anyone inquired about him, she was to say he was with her. This was because he was paroled to the Lancaster area but he spent the weekends in Moreno Valley with his current girlfriend, and he did not want the parole board to find out he was out of the area.
Because another witness in this case also has the surname "Johnson," we hereafter refer to James Johnson as "James" to avoid confusion. We do not intend this informality to reflect a lack of respect.
Gardner testified that detectives contacted her after the shooting and they asked questions about James. The detectives asked Gardner to tape-record conversations with James and gave her mother a tape recorder. She told them James was a jealous person and would not let her save other people's phone numbers in her phone. She stated she did not give the detectives an alibi for James. She told them she did not know where he was the night of the shooting, and he was not at Schooner's that night. Gardner's sister, Kimberly Gardner, also testified at trial. Kimberly was with her sister at Schooner's the night of the shooting. Kimberly also testified that James was not with them the night of the shooting.
To avoid confusion, we hereafter refer to Kimberly Gardner as "Kimberly." We do not intend this informality to reflect a lack of respect.
James's current girlfriend, Elizabeth Fernandez, told law enforcement that James was with her in Moreno Valley the night of the shooting, where he was the entire weekend during which the shooting occurred. Fernandez gave a detailed account of James's whereabouts that corroborated James's statement of his whereabouts. Fernandez said they went to Morongo Casino on the night of the shooting, and they ran into a man to whom she referred as her "uncle," though she could not remember his name. He had recently married her aunt. She introduced James to this man at the casino. James also said he was with Fernandez on the night of the shooting. After viewing the surveillance tape from Schooners, Sergeant Cochran determined that James was not the man with whom Harris had a confrontation at the bar.
When Sergeant Cochran went to interview James, he requested help with his parole officer so that he would not be sent back to jail in exchange for information on this case. James had been a witness in a prior and unrelated murder investigation handled by Detective Eddie Brown. When asked whether investigators decided to "pin" Harris's murder on appellant because James helped them in an unrelated murder, Sergeant Cochran responded, "Absolutely not."
James was put in a six-pack, and Johnson, the driver of the tan van, picked his photo out of the six-pack and said his face looked like the shooter's. James was ultimately excluded as a suspect in the investigation.
After all the witnesses had testified, it was stipulated that, if Sergeant Cochran were re-called, he would testify to the following: (1) Kimberly was asked when she had last seen James, and she stated that "last week," James and Gardner had slept in Gardner's car; (2) Kimberly stated that Gardner told her Harris knew James, and the two were rivals; (3) Kimberly stated that she cautioned Gardner about being with two people who were rivals; and (4) Gardner said that she first met Harris the night of the shooting and was dancing mostly with him, and they had a booth in the corner of the bar where they talked and drank that night.
PROCEDURAL HISTORY
Appellant was charged with one count of murder and personally and intentionally discharging a firearm within the meaning of Penal Code section 12022.53, subdivisions (b) through (d). The information also alleged that a principal personally and intentionally discharged a firearm and that the murder was committed for the benefit of, at the direction of, or in association with a criminal street gang. Appellant pled not guilty and denied the special allegations. Two mistrials followed. A third jury trial commenced. The court granted appellant's motion to dismiss the gang allegation. The jury found appellant not guilty of murder but guilty of voluntary manslaughter. It further found not true the allegation that appellant personally used a firearm.
All further statutory references are to the Penal Code unless otherwise stated.
The jury found Dorame, who is not a party to this appeal, not guilty of both murder and voluntary manslaughter. The jury deadlocked on the lesser offense against Dorame, accessory to murder or manslaughter. The court declared a mistrial on that count.
The court sentenced appellant to the high term of 11 years in state prison. Appellant filed a timely notice of appeal.
STANDARD OF REVIEW
When reviewing a trial court's decision on a Miranda issue, we accept the trial court's determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda. (People v. Davis (2009) 46 Cal.4th 539, 586.)
We review the trial court's decision to admit or exclude evidence for abuse of discretion. (People v. Vieira (2005) 35 Cal.4th 264, 292.) We review the legal adequacy of jury instructions de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) Lastly, we review a court's response to questions from a deliberating jury for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 745-746.)
DISCUSSION
1. Appellant's Motion to Suppress Custodial Statements
Appellant moved to suppress statements to Detectives Leslie and Gillis and Sergeant Cochran on December 17, 2005, when they interviewed him while he was in custody. Appellant contends that he unequivocally invoked his right to counsel during the interview, and, thus, the court should have excluded statements he made thereafter under Miranda. We agree that the statements should have been excluded, but the error was not prejudicial.
a. Admissibility
Sergeant Cochran read appellant his Miranda rights at the beginning of the interview on December 17. Appellant indicated he understood his rights and wanted to talk. After some questions, the officers asked appellant "pick up from the top" on how he ended up in the van the night of the shooting. Appellant began expressing reluctance to talk further. The following dialogue then occurred:
"[APPELLANT]: What would you say, what would you do, know what I mean? That's how I I'm feeling right now, like it's it's not that easy, like I can just boom--boom--boom you know what I'm saying.
"LESLIE: No, I understand that. I -- I understand --"[APPELLANT]: What I'm just asking for is is if I can just have some time. Know what I'm saying? And, um, speak to an attorney and stuff like that. Know what I'm saying. And, get back to to you guys and Officer Gillis too.
"LESLIE: The problem is Angel. We don't have that kind of time. We don't have the luxury of that kind of time at all. And like I said, I don't pull punches. I'll be perfectly honest with you. I don't like attorneys. I don't deal with attorneys.
"[APPELLANT]: Uh-huh.
"LESLIE: If you want an attorney, if you have absolutely every right to have an attorney. Um, and if that's the route that you choose. We'll see you in court. He and I will do what we gotta do and uh, we'll present the facts and like I said, it's nothing personal, I don't take this the wrong way, um, it's all business. But, in all honesty, all three of us are dead tired we got a whole lot of work to do still and I don't have time to sit around and wait for an attorney to come in and speak for you. You ought to --"[APPELLANT]: Um, um
"LESLIE: ____ us.
"[APPELLANT]: I'm an adult, I speak for myself too.
"LESLIE: And that's completely your decision. But it has to be your decision right?
"[APPELLANT]: Uhm-hmm.
Detectives Leslie went on to try to convince appellant that the interview was his chance to tell his "side" of the story, and Detective Gillis asked appellant to be "straight up," as he was the night before on the way to the station. Appellant then started talking again. He explained that he shot Harris with the gun Dorame had handed him.
Any statements obtained in violation of Miranda are not admissible to establish guilt. (People v. Boyer (1989) 48 Cal.3d 247, 271, disapproved of on other grounds by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1.) A request for an attorney is sufficient to invoke a suspect's rights under Miranda. (Miranda, supra, 384 U.S. at pp. 469-470.) Once a suspect has asserted his or her right to counsel during a custodial interrogation, the questioning must cease, and the suspect is not subject to further interrogation until counsel has been provided or the suspect initiates further conversation with the authorities. (Davis v. United States (1994) 512 U.S. 452, 458; People v. Randall (1970) 1 Cal.3d 948, 958 ["After the initial assertion of the privilege, the defendant is entitled to be free of police-initiated attempts to interrogate him. Any statements made by a defendant in response to such questioning cannot be characterized as voluntary"], overruled on other grounds by People v. Cahill (1993) 5 Cal.4th 478, 509-510, fn. 17.) Even if the suspect initially waived his right to counsel and responds to interrogation, the suspect may reinvoke the right at any time. (People v. Boyer, supra, 48 Cal.3d at p. 271.) If the right to counsel is invoked '"in any manner and at any stage of the process,'" the request to terminate interrogation or for counsel must be "'scrupulously honored.'" (Ibid, quoting Miranda, supra, 384 U.S. at pp. 444-445, 479.)
To invoke the right to counsel, a suspect's request for an attorney must be unambiguous and unequivocal. (Davis v. United States, supra, 512 U.S. at p. 459.) But the suspect "need not 'speak with the discrimination of an Oxford don.'" (Ibid.) To strictly limit the manner in which a suspect may assert the right to counsel, or "to demand that it be invoked with unmistakable clarity (resolving any ambiguity against the defendant) would subvert Miranda's prophylactic intent." (People v. Randall, supra, 1 Cal.3d at p. 955.) Additionally, "it would benefit, if anyone, only the experienced criminal who, while most adept at learning effective methods of coping with the police, is least likely to find incarceration and police interrogation unnerving. Conversely, it would operate most severely on the ignorant and unsophisticated suspect who is most susceptible to the compulsion arising from the tactics of custodial interrogation and consequently most in need of the protections outlined by Miranda." (Ibid.)
Thus, the suspect need only express his desire for counsel clearly enough that "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." (Davis v. United States, supra, 512 U.S. at p. 459.) On the other hand, if "a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," the authorities are not required to cease questioning. (Ibid.)
Here, the trial court determined that appellant's request for an attorney was ambiguous. However, we hold that substantial evidence does not support that determination. Appellant's request for counsel was clear and unequivocal. Appellant began expressing reluctance to talk to the detectives, to "pick up from the top" as he was asked to do. He said he was asking for some time and to speak to an attorney "and stuff like that." While it may have been unclear what "stuff" referred to, he was unambiguous in asking to speak to an attorney. A reasonable officer hearing appellant's words would not have mistaken appellant's request to speak to an attorney. Although the interrogator's subjective belief is not the test for whether a suspect has clearly invoked the right to counsel, it is notable that Detective Leslie at the time seemed to understand appellant was requesting an attorney, saying, "We don't have that kind of time. We don't have the luxury of that kind of time at all. . . . I don't like attorneys. I don't deal with attorneys."
The Attorney General contends that appellant's reference to an attorney was ambiguous because he made it in the context of asking whether he could have some time before talking to the detectives, and at most, the reference was equivalent to asking whether he could speak to an attorney before speaking to the detectives, or to expressing a possible desire to speak with an attorney before speaking with the detectives.
Appellant's request for time was in addition to the request to speak to an attorney ("[I]f I can just have some time. Know what I'm saying? And, um, speak to an attorney"); the request for one does not render the request for the other ambiguous. The Attorney General relies on People v. Williams (2010) 49 Cal.4th 405 (Williams) to show ambiguity, but that case is distinguishable. In Williams, when the officer asked the defendant whether he wished to give up his right to speak to an attorney and have one present during questioning, the defendant responded, "'You talking about now?'" (Id. at p. 426.) A series of questions and answers ensued wherein the officer attempted to clarify whether the defendant wanted an attorney present. (Ibid.) The defendant said he wanted an attorney present while he talked to the officer. He then agreed to talk "'right now.'" The officer then explained that, as it was Saturday, they would have to wait until Monday to get a public defender there. The defendant said he did not want to wait for Monday, and when asked, "'do you want to talk now because you're free to give up your right to have an attorney here now?,'" he responded, "'Yes, yes, yes.'" (Ibid.)
The Williams court held that, in this context, a reasonable officer might be uncertain whether defendant's affirmative remarks concerning counsel were intended to invoke his right to counsel. (Williams, supra, 49 Cal.4th at p. 429.) The defendant's questions about timing were significant to the court's holding. They suggested that his "willingness to waive the assistance of counsel turned on whether he could secure the presence of counsel immediately." (Id. at p. 426.) Also, at the outset of the interrogation, the defendant appeared confused about when counsel could be provided "but, upon learning that counsel would not be available immediately, seemed eager to speak with the officers." (Id. at p. 427.) Appellant's statements here were very different. Unlike in Williams, appellant's simple request for "some time" does not evidence a preoccupation with the availability of counsel at that moment, and he in no way suggested that his desire for counsel hinged on whether an attorney was available immediately.
Moreover, the other cases on which the Attorney General relies to argue that appellant's request was ambiguous or equivocal are equally distinguishable. For example, in Davis v. United States, 512 U.S. at page 462, the court held that the statement, "'Maybe I should talk to a lawyer,'" was not an unambiguous or unequivocal request for counsel because it suggested only that the defendant might want a lawyer. In People v. Gonzalez (2005) 34 Cal.4th 1111, 1126, the court held that the defendant's request for counsel was ambiguous and equivocal because it was conditional -- he stated that he wanted a lawyer if he was going to be charged. Here, appellant's request was not conditioned on whether the authorities were charging him, nor was it made conditional on any other occurrence. Additionally, he did not use any terms suggesting merely a possible desire for an attorney, such as "maybe" or "might." In short, appellant's request for counsel was clear and unequivocal. The statements he made after the request were not admissible.
b. Prejudice
We nevertheless find that the error in admitting the statements to the detectives did not prejudice appellant, especially in light of appellant's confession to his mother during their jailhouse conversation. In the recorded conversation between appellant and his mother, appellant called himself a murderer and said, "I'm just gonna tell 'em that I did it," and "Did what I did, I probably deserve the death penalty, whatever, know what I'm saying? . . . That's why he's resting in peace now." The other evidence admitted against appellant may be summarized as follows. Carroll identified appellant as the shooter from a six-pack just days after the shooting. In his conversation with Detective Gillis on the way to the station, appellant said he was with his "homies" at the scene of the shooting in a white van. He said he and his "homies" wanted to "hit the fool up," and he identified the type of gun that was, in fact, used in the shooting (a nine-millimeter Glock). Detective Gillis testified that, in a confrontation, two gang members are obligated to back up one another. Appellant said one of his companions had yelled "Harpys" at the shooting, but he wished he had. He admitted that Harpys was his "hood." The error in admitting the statements to the detectives is subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24-25. (People v. Neal (2003) 31 Cal.4th 63, 86.) Given the weight of the evidence against appellant, the Miranda error was not prejudicial beyond a reasonable doubt.
2. The Court's Rulings on Evidentiary Objections with Respect to Detective Leslie and the Gardners
Appellant argues that the trial court abused its discretion in (1) preventing appellant from questioning Detective Leslie regarding what the Gardners told him about James, and (2) preventing appellant from questioning the Gardners regarding what they told investigators about prior threats and acts of violence by James. The defense theory at trial was that appellant gave a false confession and that James, Gardner's jealous ex-boyfriend, was the real killer. Appellant contends the questions he was prevented from asking would have elicited evidence that the authorities made a rush to judgment or were biased and turned a blind eye to evidence implicating James. Appellant further asserts that the court's evidentiary rulings denied him his constitutional rights to confrontation, due process, and a fair trial. We disagree that the court prejudicially erred.
a. Detective Leslie's Testimony
The prosecution objected to Detective Leslie's testifying about the Gardners' statements during the investigation on hearsay grounds. Appellant argued that the statements were not being offered for the truth of the matters asserted, but to explain Detective Leslie's subsequent conduct and to show there was a rush to judgment with respect to appellant. The court noted the "interview that Detective Leslie had with [Gardner] is certainly -- although it goes to his state of mind and subsequent conduct, arguably, it also is admitted for the truth . . . ." The court stated that third party culpability evidence should not be excluded, but that it had to come in through the "proper channels." It ruled that appellant could question Detective Leslie on what he did during the investigation ("I think you can ask questions of Detective Leslie like you have been doing. Did you investigate anybody else? . . . When did you first develop Martinez as a suspect?"), but not on the statements of the Gardners.
Unless an exception applies, hearsay evidence is inadmissible. (Evid. Code, § 1200, subd. (b).) Hearsay is evidence of an out-of-court statement offered to prove the truth of the matter stated. (Id. subd. (a).) "As the legislative committee comment to this section observes: 'Under this definition, as under existing case law, a statement that is offered for some purpose other than to prove the fact stated therein is not hearsay.'" (People v. Bolden (1996) 44 Cal.App.4th 707, 714.) An extrajudicial statement offered for a nonhearsay purpose must still be relevant in that capacity to be admissible. (People v. Lucero (1998) 64 Cal.App.4th 1107, 1109-1110.) Relevant evidence includes evidence relevant to the credibility of a witness. (Evid. Code, § 210.) Thus, extrajudicial statements may be offered to rebut a suggestion of bias on the part of a witness and demonstrate a reasonable basis for that witness's testimony. (People v. Nichols (1970) 3 Cal.3d 150, 157.) Further, extrajudicial statements that lend credibility to an asserted state of mind are relevant, competent evidence. (People v. Duran (1976) 16 Cal.3d 282, 295.) When evidence is admissible for one purpose but inadmissible for another purpose, the court should instruct the jury as to the limited purpose for which it may consider the evidence. (Evid. Code, § 355.)
Here, the court erred because the evidence of the Gardners' extrajudicial statements implicating James were admissible for the nonhearsay purpose of determining Detective Leslie's credibility and demonstrating his alleged bias against appellant. (Evid. Code, §§ 210, 780, subd. (f).) Outside the presence of the jury, appellant made an offer of proof as to what the Gardners told investigators. For instance, Gardner purportedly said that James had learned she was at Schooners dancing with another man the night of the shooting, and he was upset about this. Kimberly had purportedly said Gardner picked James up from jail the Thursday before the shooting and took him home, not to the train station to send him to Moreno Valley. Kimberly also purportedly said that James was a gangster and had an "H," standing for Harpys, tattoo; that he and Harris were rivals, and she warned Gardner against "play[ing]" two rivals; and that she and Gardner had been "hanging out with James a lot" in the months leading up to the shooting. Statements like these -- going to James's alibi and a potential motive to shoot Harris -- would have been relevant to the defense argument that the investigators were biased and lacked credibility. The court should have instructed the jury on the limited, nonhearsay purpose for which it was to consider the evidence.
Appellant contends that the trial court also erred in permitting the prosecutor to elicit from Detective Leslie that James was excluded as a suspect "based on the investigation and interviews," but then barring appellant from cross-examining the detective on the hearsay statements the investigation and interviews disclosed. This is because, he contends, the detective's testimony amounted to opinion evidence that James was not guilty, and an expert may testify to the hearsay sources on which the expert's opinion is based. We reject the claim that Detective Leslie was expressing an expert opinion when he said James was excluded as a suspect based on the investigation and interviews. Detective Leslie did not say that, in his opinion, James was innocent. He was merely testifying as a percipient witness about what occurred during the investigation. The court did not err on this basis.
Even though the Gardners' extrajudicial statements to Detective Leslie were admissible, we find that their exclusion constituted harmless error. Appellant asserts that the court's evidentiary rulings violated appellant's constitutional rights to confront and cross-examine witnesses against him and present a defense, but we disagree that the error created a problem of constitutional dimension. The "routine application of state evidentiary law does not implicate [a] defendant's constitutional rights." (People v. Brown (2003) 31 Cal.4th 518, 545.) Moreover, when the trial court's ruling did not constitute a refusal to allow the defendant to present a defense, but merely rejected certain evidence concerning the defense, the proper standard of review is that in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Bradford (1997) 15 Cal.4th 1229, 1325.)
Under this standard, it was not reasonably probably the jury would have reached a more favorable verdict, absent the error. The jury had before it considerable evidence implicating James, including much of the same evidence appellant was seeking to admit here, that would have served to demonstrate the investigators' potential bias against appellant. Much of it came in through other sources in the investigation. The admitted evidence may be summarized as follows. James was Gardner's ex-boyfriend and was a suspect in the investigation. He had access to a white van and was a Harpys member, both details matching the crime. His alibi for the night of the shooting was suspicious. At first, Gardner said he was with her. But then his current girlfriend, Fernandez, said he was with her in Moreno Valley, where she says she introduced him to an "uncle." Strangely, Fernandez could not remember this uncle's name, and the authorities never verified this story with the uncle. Gardner said James was a jealous person, so much so that he did not allow her to have the phone numbers of other people. James knew Harris, the victim, and the two were rivals. Harris and Gardner spent the night at Schooners dancing, talking, and kissing. Kimberly cautioned Gardner about being with two men who were rivals. Johnson identified James as looking like the shooter from a six-pack photographic lineup. Still, with all this evidence, the jury chose to credit the also considerable evidence of appellant's guilt, which we described in part one. Given the already strong evidence implicating James, it was harmless to exclude the few other extrajudicial statements by the Gardners.
b. The Gardners' Testimony
At trial, appellant sought to elicit testimony from the Gardners about James's prior acts of violence and threats. Outside the presence of the jury, defense counsel stated that Gardner told investigators: (1) James had said, "If I can't have you, nobody can"; and (2) James was violent and smashed out the car windows of men whom he thought she was dating. Appellant wanted to question the Gardners on these areas. The court noted this was tantamount to eliciting character evidence under Evidence Code section 1101, and it would not be admissible unless appellant could show it proved James's identity as the killer in this case. After hearing from both counsel, the court ruled it was not going to allow the evidence "under relevancy and 352 grounds."
Generally, evidence of a person's character (i.e., that person's propensity or disposition to engage in a certain type of conduct) is inadmissible when offered as a basis for an inference that he or she behaved in conformity with that character on a specified occasion. (Evid. Code, § 1101, subd. (a).) Such character evidence, however, is admissible when relevant to prove motive or intent -- some fact other than the person's disposition to commit the crime at issue. (Id. subd. (b).) It is also admissible to support or attack the credibility of a witness. (Id. subd. (c).) Section 1101 is not limited to evidence concerning the defendant; it applies to evidence concerning any person, whether or not a party. (People v. Davis (1995) 10 Cal.4th 463, 501.)
Here, appellant urges that evidence of James's prior violent acts and threats was relevant and admissible to prove motive and intent. He does not explain exactly how James's alleged prior acts showed motive and intent to kill Harris, except to suggest that if the jury knew James was violent with men Gardner had dated, they could have drawn an inference that he would commit the ultimate violent act of killing a man with whom Gardner was seen. But this is precisely the type of propensity evidence section 1101 prohibits. (People v. Davis, supra, 10 Cal.4th at p. 501 [evidence of third party's prior acts properly excluded when "the proposed evidence did not relate to motive and intent but was essentially an attempt to show that [a third party] was more likely to have been the killer because he had a history of violence"].)
Appellant also urges that the evidence of James's prior conduct was relevant and admissible to attack the credibility and show the bias of the investigating officers. Assuming arguendo that it was relevant for this purpose, and the trial court erred in excluding it on the basis of Evidence Code section 352, we nevertheless find that the exclusion of James's prior conduct was harmless error, whether alone or considered cumulatively with the exclusion of the Gardner's extrajudicial statements. We again disagree with appellant that this routine application of the evidentiary rules violated his constitutional rights. (See People v. Brown, supra, 31 Cal.4th at p. 545.) As discussed in the foregoing, given the considerable evidence of James's involvement available to the defense to make its bias argument, additional evidence implicating James was not reasonably probable to change the jury's verdict.
3. Appellant's Proposed Pinpoint Instruction on Third Party Culpability
Appellant contends that the trial court prejudicially erred when it refused to give his proposed pinpoint instruction on third party culpability. We disagree.
The trial court instructed the jury with a modified version of CALCRIM No. 373 (Other Perpetrator), which read as follows:
"The evidence shows that other persons (ie. [sic] The unnamed person who was in the van at the time of the shooting) may have been involved in the commission of the crime charged against the defendants. There may be many reasons why someone who appears to have been involved might not be a codefendant in this particular trial. You must not speculate about whether those other persons have been or will be prosecuted. Your duty is to decide whether the defendants on trial here committed the crime charged."
The modification consisted of the parenthetical to pinpoint that the instruction referred to the third, unnamed person in the van at the shooting. Appellant objected to this instruction on the ground that it created confusion with the issue of James and third party culpability. He proposed the following instruction on third party culpability, arguing that it cleared up any confusion caused by modified CALCRIM No. 373:
"The defense . . . for Angel Martinez has presented evidence that a third party, James Johnson, may have committed the crimes for which Angel Martinez is now accused of. If that evidence raises a reasonable doubt as to defendant Martinez's guilt, the jury must find defendant Martinez not guilty." The trial court refused to give appellant's proposed instruction, noting that the reasonable doubt instruction adequately covered the third party culpability evidence.
A criminal defendant generally is entitled, on request, to instructions that pinpoint the defense theory of the case. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142; People v. Earp (1999) 20 Cal.4th 826, 886.) But a "trial court is not required to give pinpoint instructions that merely duplicate other instructions." (People v. Panah (2005) 35 Cal.4th 395, 486 [no error when defendant's proposed pinpoint instructions were duplicative of reasonable doubt instruction, among others].) "An instruction that does no more than affirm that the prosecution must prove a particular element of a charged offense beyond a reasonable doubt merely duplicates the standard instructions defining the charged offense and explaining the prosecution's burden to prove guilt beyond a reasonable doubt. Accordingly, a trial court is required to give a requested instruction relating the reasonable doubt standard of proof to a particular element of the crime charged only when the point of the instruction would not be readily apparent to the jury from the remaining instructions." (People v. Bolden (2002) 29 Cal.4th 515, 558-559.)
Here, the trial court did not err in failing to give appellant's requested instruction on third party culpability because it was essentially duplicative of other instructions. The court instructed the jury on the presumption of innocence and the prosecution's burden of proof beyond a reasonable doubt both pre- and posttrial. Additionally, the court instructed the jury pursuant to CALCRIM No. 315 that the prosecution had the burden of proving beyond a reasonable doubt that it was appellant who committed the crime, and if it did not meet this burden, the jury had to find appellant not guilty. Appellant's proposed instruction was duplicative because it did nothing more than affirm the prosecution's duty to prove beyond a reasonable doubt that it was appellant who committed the crime. Moreover, even if the trial court had erred, any error was harmless. Despite appellant's contrary contention, the refusal to give the proposed pinpoint instruction is not an error of constitutional dimension, and we thus apply the harmless error standard of Watson, supra, 46 Cal.2d at page 836. (People v. Wharton (1991) 53 Cal.3d 522, 572, fn. 10.) The single instruction regarding another unnamed perpetrator (modified CALCRIM No. 373) constitutes a weighing of the scales in favor of the prosecution, especially in light of the several instructions regarding presumption of innocence, reasonable doubt, and the prosecution's duty to prove appellant was the perpetrator. We do not believe there could have been any confusion about appellant's third party culpability defense. No instruction precluded the jury from giving the evidence of James's third party culpability its due weight, and defense counsel argued at length in closing that James was the actual shooter and the prosecution did not prove beyond a reasonable doubt that appellant was the shooter. It was not reasonably probable appellant's proposed instruction would have resulted in a more favorable verdict.
4. The Trial Court's Instructions to the Jury During Deliberations
Appellant lastly contends that the trial court committed prejudicial error in its response to a jury question during the jury's fifth day of deliberations. We reject appellant's claim.
The jury sent the court a note during the fifth day of deliberations that read as follows: "If we can place Andrew [Dorame] or Angel [appellant] there but can[']t prove they fired a gun[,] can we still charge them with a crime? Please explain 335 and 339."
CALCRIM No. 335 ("Accomplice Testimony: No Dispute Whether Witness Is Accomplice") instructed the jury that it could not convict either codefendant based upon the other's extrajudicial statements alone. Because CALCRIM No. 339 does not exist, it was presumed that the jury was referring to CALCRIM No. 359. CALCIM No. 359 instructed the jury that it could not rely on appellant's extrajudicial statements alone to convict him. After conferring with the parties, the court gave the jury the following response:
"The court will refer the jury to instructions 335 and 359. Instructions 400 and 401 may also be helpful. Some of these instructions may not apply, depending upon your findings about the facts of the case.
"After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.
"Please advise the court if further argument by the attorneys regarding your question will be helpful."
CALCRIM No. 400 ("Aiding and Abetting: General Principles") and CALCRIM No. 401 ("Aiding and Abetting: Intended Crimes") instructed the jury in aiding and abetting liability.
Section 1138 "requires the court to provide the jury any desired information 'on any point of law arising in the case.'" (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212, superseded by statute on other grounds as stated in In re Steele (2004) 32 Cal.4th 682, 691.) "[T]he statute imposes a 'mandatory' duty to clear up any instructional confusion expressed by the jury." (Ibid.) When the original jury instructions are complete, the court has the discretion to determine what additional explanations are sufficient to satisfy the jury's request for information. (People v. Beardslee (1991) 53 Cal.3d 68, 97.) The court may decide that further explanation is not desirable, and it should merely reiterate or refer back to instructions already given. (Ibid.; People v. Davis, supra, 10 Cal.4th at p. 522.)
The trial court properly exercised its discretion here. The jury specifically asked about CALCRIM No. 335 and what was presumably CALCRIM No. 359. The court did not err in merely advising the jury to reread those instructions. The jury also indicated it was confused about what to do if it found Dorame or appellant was present at the scene of the shooting, but it could not prove they were the actual shooters. It was reasonable for the court to direct the jury to the aiding and abetting instructions to help clarify this confusion. Despite what appellant suggests, this advice was not weighing the response in favor of the prosecution. First, the court told the jury that the instructions "may not apply," depending on the jury's findings of fact, and it should follow the instructions that do apply to the facts. Second, the instructions reiterated to the jury that "[t]he fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him an aider and abettor." Third, CALCRIM No. 359, to which the jury was directed, reiterated that it could "not convict [appellant] unless the People have proved his guilt beyond a reasonable doubt." Considering the response as a whole, there was no abuse of discretion here. (People v. Davis, supra, 10 Cal.4th at p. 522 [no abuse of discretion when the court directed the jury to instructions it determined would clarify the issues raised, and it declined to instruct further].)
DISPOSITION
The judgment of conviction is affirmed.
FLIER, J. I CONCUR:
RUBIN, J.
BIGELOW, P.J., Concurring:
I write separately because I disagree with the majority's conclusion that the statements by Martinez were an unambiguous invocation of the right to counsel. I agree that once a defendant has waived his Miranda rights, if he has a change of heart, he must invoke the right to counsel unambiguously. (Davis v. U.S. (1994) 512 U.S. 452, 459.) I also agree that the suspect must assert his desire to have counsel in such a manner that "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." (Ibid.) I part with the majority, however, because I believe it does not give appropriate weight to the applicable standard of review.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
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The appellate court's role in reviewing the issue of whether a suspect has invoked his right to counsel is limited. Where supported by substantial evidence, a reviewing court is to accept the trial court's resolution of disputed facts and inferences as well as its evaluations of credibility. Although a reviewing court independently determines from those facts and any other undisputed facts whether the challenged statements were illegally obtained, we may " ' "give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.' [Citations.]" (People v. Kelly (1990) 51 Cal.3d 931, 947, quoting Miller v. Fenton (1985) 474 U.S. 104, 112; see also, People v. Davis (2009) 46 Cal.4th 539, 586 (Davis); People v. Gonzalez (2005) 34 Cal.4th 1111, 1125.)
In this case, the trial court listened to the CD of Martinez's confession and alleged invocation and determined Martinez's reference to an attorney was ambiguous and equivocal. More specifically, the trial judge found, "it looks to me that Mr. Martinez was basically saying, you know, if I could just have some time, I'd like to, you know, maybe speak to a lawyer if I could have the time." The trial court further noted that any questions about Martinez's intentions were clarified when Detective Leslie told him "you have absolutely every right to have an attorney. And if that's the route you choose, that's fine. We'll see you in court." To which Martinez responded, "I am an adult. I speak for myself."
Davis, the infamous case involving the kidnap and murder of Polly Klass, is informative. There, defendant's contention that he invoked his right to counsel during his interrogation was rejected by the California Supreme Court. The relevant facts were set forth by our high court as follows. "After questioning [the defendant] for about an hour, Agent Taylor directly accused him of abducting Polly. When Officer Pelton began alluding to trace evidence and DNA evidence, defendant stood up and responded, ' Well then book me and let's get a lawyer and let's go for it man, you know.' Defendant [next] said he did not mind answering the initial routine questions, but he resented being accused of Polly's abduction. He then remarked, 'let's shit or get off the pot.' When Agent Taylor interjected, 'It's going to happen,' defendant responded, 'Well, let's go for it. That's the end, the end.' When asked whether he still wanted to talk, defendant replied, 'Get real. You think I should?' Officer Pelton answered, 'That's up to you,' to which defendant responded, 'Fuck.' Pelton and Taylor then asked why he had abducted Polly. Defendant sat down and replied: 'I can't answer that question. Get real. I ain't done it, how can I answer it.' He then stated, 'I didn't kidnap that little fucking broad, man, get real.' " (Davis, supra, at pp. 586-587; italics added.) The officers then continued questioning the defendant and he answered their questions.
The trial court in Davis reviewed a videotape of the defendant's interrogation and determined that the remark about getting a lawyer was not an invocation of his right to an attorney, but instead a challenge to his questioners. The California Supreme Court likewise reviewed the videotape of defendant's interrogation and concluded that substantial evidence supported the trial court's ruling. More specifically, it held "defendant's initial comments were not an unambiguous invocation of the right to 'immediate presence of an attorney.' [Citation.]" (Davis, supra, at p. 588.) It was not until the defendant blurted out, " 'get me a lawyer,' " and said he was " 'over and done' " answering questions that the high court determined, as did the trial court, that defendant clearly invoked his constitutional right to counsel. (Id. at p. 588.)
I believe that if the trial court's findings are given the deference that the standard of review requires, it mandates a finding that the alleged invocation was equivocal. In this case, the trial court found Martinez might be seeking a lawyer, if he had the time to get one. Further, the court concluded any ambiguity in his request was cleared up by subsequent questioning. We are to review this finding to see if it is supported by substantial evidence. After reviewing the CD myself, I believe the trial court's ruling meets that standard.
Moreover, in determining whether a defendant has invoked his right to counsel, his statements are to be considered in context. (People v. Thompson (1990) 50 Cal.3d 134, 156; People v. Williams (2010) 49 Cal.4th 405, 429 (Williams)) The context here supports the trial court's conclusion. Martinez was advised of and waived his Miranda rights twice; on multiple occasions he expressed that he wanted to clear his conscience by talking to the authorities. Indeed, Martinez first waived his Miranda rights the day before the questioned interview. He then admitted he was with two others in the stolen white minivan; he said that it was one of those cohorts who shot the victim with a Glock nine millimeter. When Detective Gillis told Martinez he would have to call the homicide detectives to talk to him, Martinez said he would talk to the detectives if Gillis were there. Detective Gillis then booked Martinez, who said he wanted to "get the incident off of his chest . . . ." The next day, when the homicide detectives were present Martinez was again informed of his Miranda rights; Martinez again waived his rights. Martinez started the interview by saying he wanted to "get this burden off my chest. . . " and "Get this shit off my mind. . . ." When Martinez made the remark about an attorney, the investigators told him, "If you want an attorney, you have absolutely every right to have an attorney." To which, Martinez responded, "I'm an adult, I speak for myself too." Seeking to further clarify the issue, the investigator said, "And that's completely your decision. But it has to be your decision right?" Martinez responded in the affirmative and the interrogation continued.
Other cases by the California Supreme Court support the trial court's decision. In People v. Bacon (2010) 50 Cal.4th 1082, 1104-1108, the high court determined a defendant's statement, made 30 minutes after waiving his rights, " 'I think it'd probably be a good idea for me to get an attorney,' " was not sufficiently clear to be understood as a request for an attorney. In Williams, supra, 49 Cal.4th at pages 431-433, the defendant interrupted his questioning and said, " 'I want to see my attorney cause you're all bullshitting now.' " The Supreme Court found that the words, when considered in context, supported the trial court's conclusion that defendant's statement was an expression of frustration and game playing.
The trial court here made its factual findings and then applied California law to its determinations. Substantial evidence supports the trial court's ruling. So does the case law. I give great weight to the learned trial judge's conclusions and it leads to only one reasonable conclusion -- the trial court made no error in its decision on this Miranda issue. A reviewing court is not free to decide that it would have made a different call if given the opportunity in the first instance. I would find the continued questioning proper.
BIGELOW, P.J.