Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F4728
CANTIL-SAKAUYE , J.
In 1997, Christopher Kohn was found beaten to death in his apartment. Seven years later, Helena Martinez, defendant Derek Martinez’s former wife, came forward and told the police that Martinez had confessed to her that he and defendant Michael Johnson did the killing. A jury convicted both Martinez and Johnson of first degree murder (Pen. Code, § 187, subd. (a)) with an allegation that they were armed with a firearm (§ 12022, subd. (a)(1)). The jury also found true the allegation that Martinez used the firearm (§ 12022.5). In a bifurcated proceeding, the trial court found Martinez had a prior serious felony (§ 1170.12). The court sentenced Martinez to 54 years to life in prison and Johnson to 26 years to life.
Hereafter, undesignated statutory references are to the Penal Code.
Martinez and Johnson separately appeal, each raising numerous claims of error. Many of their contentions relate to the prosecution’s star witness, Helena Martinez, or the effect of their joint trial. We find no error with respect to these points. Further, we find sufficient evidence of felony murder and that Martinez’s prior conviction qualified as a strike. We affirm the judgments, modifying them to make explicit that the restitution order is a joint and several obligation.
FACTS
Christopher Kohn and the Super Bowl Sunday Burglary
Christopher Kohn lived on Wonderland Boulevard in Mountain Gate in a house that had been converted into three studio apartments. Kohn did not work, but sold marijuana; he had 20 to 30 visitors a day. He flashed around a lot of money; everyone knew he had money.
January 26, 1997 was Super Bowl Sunday. While Kohn was at the Red Lion Inn celebrating, his apartment was burglarized and ransacked. Several items were stolen, but not his money.
On January 29, several people visited Kohn and some purchased marijuana. One visitor watched a man sell Kohn a pound of marijuana, which Kohn paid for. Kohn had $9,000 in his couch and a stack of money in a wooden box. When two potential purchasers arrived about 10:00 p.m., Kohn sent them away. Kohn’s girlfriend called about the same time and Kohn sounded fine.
Kohn’s Neighbors Hear the Killing
When Kohn’s neighbor Sandra Drewek got home from work about 10:30 or 11:00 that night, it was quiet. Later, through the thin walls, she heard three male voices from Kohn’s apartment. It sounded like they were partying. She was awakened at 4:20 a.m. by the sound of a body hitting the wall. She heard Kohn screaming for help. She heard one man say “don’t do that” and another say there was a girl next door. She heard Kohn call for help in a low and shallow voice and called 911. Then she heard a shot. A spent bullet was found on her bed.
The neighbor who lived in apartment 3 heard a lot of thumping and screams at 4:30 a.m.; it sounded like a bad fight. He opened his door and saw someone being thrown against the blinds. He heard someone say “shut up” and then Kohn screaming in a muffled voice.
Initial Police Investigation and Forensic Evidence
When the police arrived they found Kohn lying near the north wall of the apartment. His face was bloody and he was dead. There was no sign of a forced entry, but it was obvious there had been an assault. There were several cuts on Kohn’s head and face and a possible defensive wound on his arm. The evidence also suggested ligature strangulation. There were bloody palm prints on the wall. These prints were later identified as Johnson’s.
There was a bullet hole leading to apartment 2. The bullet was fired from a steep upwards angle and landed on the bed in apartment 2. The bullet could have come from any of several guns; it would fit a.38,.357,.380 and a 9 millimeter. It was not fired from any of the guns recovered during the investigation.
Three pieces of black plastic were found on the bed and floor in Kohn’s apartment. They appeared to be from the grip of a handgun. They had parallel lines on them that were consistent with the pattern found on Kohn’s forehead. A criminalist testified the wounds to Kohn could have been caused by a Walther P-38 handgun. The identity of that gun was not conclusive, but the criminalist knew of no other gun with that distinctive pattern on the grip. A factory authorized Walther dealer testified for the defense that these plastic pieces were from a handgun grip and the Walther was the only gun he knew of with a ribbed grip. He had no doubt the pieces came from a Walther P-38. The dealer testified, however, that the bullet found in the next apartment had land and groove parameters that did not fall within the Walther specifications. In rebuttal, a criminalist testified the Walther P-38 had a greater range for land and grooves than the dealer testified to. The bullet was within that broader range and could have been fired from a Walther P-38.
Kohn had hair in his hand, which was consistent with his own. DNA analysis showed it was Kohn’s hair.
Pay/owe sheets were found in Kohn’s apartment. Martinez was not listed on these sheets. No significant amount of money was found in Kohn’s wallet.
In the original investigation, the police interviewed over a hundred people. One of Kohn’s friends told the police Kohn was worried about being killed in the next three days. Kohn owed people from Oregon $14,000, but he was not afraid because he had the money.
Suspect John Harris
The police identified several persons of interest, including John Harris. Harris had burglarized Kohn on Super Bowl Sunday. Another person of interest was Taskeen Tyler, who committed a burglary in Alta Mesa shortly before Kohn was killed. Tyler had given Harris the items from that burglary, including guns, ammunition and a Samurai sword, to hold. Tyler knew Harris was involved in the Super Bowl Sunday burglary. Harris told Tyler that Kohn had $10,000 but he could not find it. Harris said he would kill Harris if he had to for the money.
The morning of the killing, Harris arrived at Tyler’s at 6:00 a.m. nervous and agitated. He told Tyler he had to get the guns because “they killed the boy.” Tyler knew Harris was talking about Kohn.
The police searched Harris’s house and found ammunition, marijuana, but no large amount of money. They found smoking pipes similar to those at Kohn’s. They also found the Samurai sword from the Alta Mesa burglary.
Harris was interviewed and at first denied the Super Bowl Sunday burglary, but ultimately admitted it. He strongly denied the murder. Harris said he wanted money but would not kill for it. Harris had scratches on his face.
The police found no evidence linking Harris to the killing of Kohn and ruled him out as a suspect. Harris died in 2005.
The police also heard a report that three black men were discussing the killing in a bar in Cottonwood. They said it was not supposed to happen like that; no one was to get killed. The police determined the report was not true.
At trial, Harris’s former wife Deborah Butler testified for Martinez. She testified to Harris’s plan to rob Kohn on Super Bowl Sunday. Afterwards, Harris was upset he failed to find the money, pacing the floor and “foaming at the mouth.” He asked his wife where she would hide money. A few days after Super Bowl Sunday, there were six to eight black men in her house. She saw guns, knives, a Samurai sword and a white jacket with blood on it. Harris then folded the jacket so the blood was not visible. Butler saw Harris throw clothes away and a pair of his tennis shoes was missing. Butler had told the police about the bloody jacket and missing clothes. Harris never told his wife he killed Kohn.
Helena Martinez
The star prosecution witness was Helena Martinez, defendant Martinez’s ex-wife. She had lived with Martinez since she was 17. They married in August of 1997 and divorced before trial.
For ease of reference and clarity, Helena Martinez will hereafter be referred to as Helena.
On June 24, 2004, Helena was going to the Public Safety Building when she saw a flyer regarding the Mountain Gate murder. The flyer triggered her memory, which was poor. After talking to her therapist, she went to the police.
She told the police Martinez had told her he committed the murder. One dawn he woke her up and told her he had been watching a guy in Mountain Gate who owed him money for drugs. He went to the guy’s house and hit him several times in the back of the head with a gun because the guy would not sit still. While Martinez was hitting his victim, the gun discharged. The bullet went into the wall. A neighbor interrupted by turning on a light. Martinez was dressed in black. Afterwards he changed the tires on his car. Martinez told Helena he would kill her if she told anyone. He said he was with a friend when he did the killing.
In August of 1998, Martinez drove her to some cabins off Interstate 5 and said this is where he killed the guy. Another time he drove her to a cemetery and said his victim was buried there. Martinez had a headache and seemed sad. At the time, Helena thought Martinez was just trying to scare her.
Helena testified Martinez had a silver gun with a black handle that had ridges. The handle was broken. When Helena asked Martinez about the gun, he said he got it cheap and needed it for show to sell drugs. Martinez also had a small black gun with scratches on it.
Helena reported Martinez and Johnson were friends. She remembered Johnson coming by four or five times in 1997.
Helena claimed she did not believe Martinez’s confession at the time. She decided it was true when she saw the poster. She had told a friend about it in 2003. Despite the confession, Helena married Martinez five months later. In the spring of 1997, Martinez told her the police found the people who did the killing.
Helena admitted she had accused Martinez’s mother of molesting her child. The accusation was based on the child’s report. Helena told her therapist who contacted the police. After the child said her grandmother had not molested her, Helena let the grandmother watch the children. Helena claimed she had a good relationship with Martinez’s mother.
Helena’s original statement to the police was probably videotaped, as was the usual practice, but the tape was lost. Helena explained that when she originally told the police Martinez said he “just” killed someone, the use of “just” was a reference to Martinez thinking the killing was no big deal not a reference to the timing of the killing.
Helena was interviewed in more depth by Detective Thomas Campbell. She was very nervous and anxious, but eager to talk. Campbell asked her if any of Martinez’s guns had missing pieces. She responded one was chipped or scratched. Campbell showed her a picture of the black plastic pieces found at the crime scene. She said Martinez’s gun had ridges. When Campbell told her where the pieces were found, she began to cry uncontrollably and urinated on herself. She was frightened.
Helena gave the detective the names of several of Martinez’s friends. She identified one as Michael Pajarro, but later clarified his last name was Johnson.
Christina Goodwin
The police then contacted Christina Goodwin in Oregon, looking for Johnson. During a second interview in Redding, the police told Goodwin they had arrested Martinez for murder. Goodwin had been roommates with Johnson; then they became a couple. They had an on and off relationship from 1996 to 2004.
Goodwin told the police that one night in 1997 Johnson awoke her when he came home with Martinez. Johnson was carrying a shotgun wrapped in a blanket and asked her to put it in the shed. Johnson was wearing dark clothes and gloves. Johnson threw his clothes in a dumpster. Johnson was anxious and did not want to talk. Goodwin described him as acting “sketchy”; he was paranoid and thought people were following him.
Prior to this night Johnson had no money. Afterwards he gave Goodwin $300 for rent and spent money on clothes, cars and taking another girl out of town. Johnson also had a large amount of marijuana; it filled the bottom of a large dog food bag.
Goodwin was uncertain of the date of this shotgun incident. She thought her Christmas tree was still up and she usually took the tree down a week or two after New Year’s. She believed she was six months pregnant and her daughter was born in April. It could have been the end of January. She first told the police it was February or March, then she remembered it was cold and said January.
DISCUSSION
JOHNSON’S CONTENTIONS
I.
The Trial Court did not Err in Denying Johnson’s Marsden Motion
Johnson was represented by three different attorneys throughout these proceedings. His first attorney was Frank O’Connor. Johnson requested a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118) before trial because he believed the case was not being taken seriously enough. The court denied the motion. O’Connor was later relieved due to a conflict; he had previously represented Martinez.
Johnson’s next attorney was Max Ruffcorn, who had represented him in a prior case. Johnson brought a Marsden motion to relieve Ruffcorn, claiming there was no trust between them. The court denied that motion, but granted a second motion, finding a complete breakdown of the attorney-client relationship, after Johnson accused Ruffcorn of using a racial slur and Ruffcorn stated he believed Johnson might take a swing at him to get a mistrial.
Johnson was represented throughout the trial by James Pearce. Just before sentencing, Johnson complained to the court that he had been housed in the psych unit 20 minutes before trial and his attorney failed to ask for a competency hearing. He claimed he was unable to make clear decisions. Further, he wanted an expert and a change of venue, and he was denied a jury of his peers. Johnson wanted the public defender to file his appeal. When the court asked if Johnson wanted to fire Pearce, Johnson responded he felt like he had no attorney. The trial court held a Marsden hearing at which Johnson aired his complaints. The court denied Johnson’s request to relieve his attorney.
Johnson contends the trial court erred in denying his Marsden motion because the evidence he presented at the closed hearing indicated he and Pearce were embroiled in an irreconcilable conflict. He contends the court erred because it refused to relieve Pearce because it found his representation was adequate.
At the beginning of the closed Marsden hearing, the trial court advised Johnson he could fire his attorney if the attorney was providing inadequate representation or if there was a complete breakdown of the attorney-client relationship. In the hearing Johnson incorporated and expanded upon his comments in open court. His complaints fell into five categories. First, he contended he was incompetent to stand trial because he was housed in the psych unit and took medications. Neither counsel nor the trial court saw anything that raised any concern about Johnson’s competency; the court stated this issue “comes completely out of the blue.” Second, Johnson complained counsel failed to hire a fingerprint expert. A defense expert was hired and he found the bloody palm print a better match to Johnson than the prosecution expert. In response, Johnson stated, “I don’t trust the expert.” Third, Johnson wanted a change of venue, but both counsel and the trial court found no basis for a change of venue.
In open court Johnson complained he did not have a jury of his peers. He did not repeat or elaborate on this claim in the closed Marsden hearing. We note no such claim is made on appeal.
Johnson claimed his attorney dissuaded him from testifying. The court found Johnson chose not to testify. The record amply supports the court’s conclusion. Before trial the court advised both Martinez and Johnson that the choice whether to testify was theirs alone and they said they understood. After Martinez rested his case, there was a considerable discussion about sanitizing Johnson’s prior and his testifying. After discussion with his attorney, Johnson decided not to testify because the “options aren’t really giving me a safe defense.”
Finally, Johnson had general complaints about his attorney, who, he declared, failed to come see him and was uncomfortable with him. Johnson claimed his attorney failed to put on a defense and cleaned up the prosecutor’s mistakes in closing argument, and Johnson feared Pearce would leave things out of the appeal as a prior attorney had done. Pearce explained his trial tactic was to separate Johnson from Martinez, but Johnson refused to tell the investigator what happened that night. Johnson claimed there was no trust. The court found Pearce made reasonable tactical decisions that were not incompetent or ineffective.
Analysis
The law regarding a Marsden motion is well settled. “‘When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result.’ [Citations.]” (People v. Fierro (1991) 1 Cal.4th 173, 204.) “Substitution of counsel lies within the court’s discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel. [Citation.]” (People v. Smith (2003) 30 Cal.4th 581, 604.)
The trial court did not abuse its discretion in denying Johnson’s Marsden motion. The major problem between Johnson and his attorney was Johnson’s refusal to cooperate with him. “Defendant cannot simply refuse to cooperate with his appointed attorney and thereby compel the court to remove that attorney.” (People v. Michaels (2002) 28 Cal.4th 486, 523.) Johnson’s proclaimed lack of trust is insufficient to remove his attorney. “[I]f a defendant’s claimed lack of trust in, or inability to get along with, an appointed attorney were sufficient to compel appointment of substitute counsel, defendants effectively would have a veto power over any appointment and by a process of elimination could obtain appointment of their preferred attorneys, which is certainly not the law.” (People v. Crandell (1988) 46 Cal.3d 833, 860.)
Finally, a disagreement over trial tactics does not show an irreconcilable conflict. “A defendant does not have the right to present a defense of his own choosing, but merely the right to an adequate and competent defense. [Citation.] Tactical disagreements between the defendant and his attorney do not by themselves constitute an ‘irreconcilable conflict.’ ‘When a defendant chooses to be represented by professional counsel, that counsel is “captain of the ship” and can make all but a few fundamental decisions for the defendant.’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 728-729.)
Relying on several federal cases, Johnson contends the denial of his Marsden motion violated his Sixth Amendment right to counsel. This contention has no merit.
In considering whether the denial of substitute counsel implicates a defendant’s right to counsel, we look to three factors: (1) the timeliness of the motion; (2) the adequacy of the court’s inquiry into the defendant’s complaint; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a total lack of communication preventing an adequate defense. (People v. Smith, supra, 30 Cal.4th at p. 606.)
None of these factors supports finding a Sixth Amendment violation. Johnson’s motion was untimely. He made the motion after the verdict, but his complaints related to matters occurring during or before trial; tellingly, he did not request new counsel for sentencing. (See People v. Whitt (1990) 51 Cal.3d 620, 659 [defendant’s delay in expressing dissatisfaction with counsel gave the court “reasonable grounds to question the sincerity of his current criticisms”].) As set forth above, the trial court made an adequate inquiry into Johnson’s complaints and to the extent there was a lack of communication, it was Johnson’s doing. “[A] defendant may not force the substitution of counsel by his own conduct that manufactures a conflict.” (People v. Smith (1993) 6 Cal.4th 684, 696.)
II.
The Trial Court Did Not Err in Failing to Appoint New Counsel for a New Trial Motion
Johnson contends the trial court erred, and violated his Sixth Amendment right to counsel and his Fifth Amendment right to due process, by failing to appoint new counsel to explore his claim of ineffective assistance of trial counsel and file a motion for a new trial. This contention is meritless.
Johnson did not request substitute counsel to file a new trial motion; instead, he wanted new counsel simply to file his notice of appeal. While Johnson raised several complaints about trial counsel’s performance at trial, the court expressly found no incompetency or ineffectiveness. Johnson cites no authority, and we are aware of none, that requires a trial court to appoint substitute counsel in these circumstances. Indeed, this court has recently found a contention similar to Johnson’s to be without merit. (See People v. Richardson (2009) 171 Cal.App.4th 479, 485.)
III.
By not Testifying, Johnson Forfeited the Issue of Whether the Trial Court Erred in Refusing to Sanitize His Prior Conviction
In 2005, Johnson was convicted of rape (§ 261, subd. (a)(2)) and aggravated sexual assault of a child (§ 269, subd. (a)(4)). When the prosecutor indicated he would use the prior conviction for “child rape” to impeach Johnson if he testified, the defense asked it be sanitized. The court did not rule at that time.
The issue arose again just before Johnson’s case in chief. Johnson argued that telling the jury the exact nature of his prior was too inflammatory. The court agreed “rape” and “molestation” were inflammatory, but would allow the crime to be referred to as continuous sexual abuse of a child. Johnson indicated he would not testify and the court advised him he would lose the right to appeal the court’s ruling on sanitization unless he testified.
The issue was revisited; it was brought to the court’s attention Johnson’s crime was not continuous sexual abuse, but aggravated sexual abuse of a child. The court ruled the crime could be referred to as sexual assault of a child. Johnson, complaining about his options, decided not to make an election, which the court construed as an election not to testify. The court again cautioned Johnson that if he did not testify, he could not appeal the ruling on the sanitization. Johnson rested without presenting any witnesses in defense.
Johnson contends the trial court erred in failing to sanitize his prior conviction for aggravated sexual assault on a child. Johnson recognizes that the Supreme Court, in People v. Collins (1986) 42 Cal.3d 378 (Collins), held that denial of a motion to exclude a prior conviction offered for impeachment is not reviewable on appeal unless the defendant testifies. He contends, however, that other decisions permit a defendant to preserve the issue by an offer of proof, which will create a sufficient record for review. He contends trial counsel was ineffective in failing to advise Johnson of this procedure. Johnson is mistaken as to the law.
In Luce v. United States (1984) 469 U.S. 38, 43 [83 L.Ed.2d 443, 448] (Luce), a unanimous Supreme Court announced the rule: “[T]o raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify.” The court gave three reasons for the rule. The primary concern was that, “A reviewing court is handicapped in any effort to rule on subtle evidentiary questions outside a factual context.” (Id. at p. 41 [83 L.Ed.2d at p. 447].) First, the trial court could not weigh the probative value of the prior conviction evidence against its prejudice unless it knew the “precise nature” of defendant’s testimony. (Ibid.) An offer of proof was insufficient. (Id. at p. 41, fn. 5.) Second, any possible harm from the ruling is wholly speculative. As the case unfolds, the prosecutor might decide not to use the impeachment evidence. (Id. at p. 41.) Third, when the trial court erred, the reviewing court could not weigh the prejudice, thus, such errors would result in a windfall of automatic reversal. (Id. at p. 42 [83 L.Ed.2d at p. 448].)
In Collins, the California Supreme Court found these reasons sound and equally applicable to California practice. (People v. Collins, supra, 42 Cal.3d at p. 385.) It adopted the Luce rule as a judicially declared rule of criminal procedure in California. (Ibid.) For reasons of fundamental fairness, however, the court held the Luce rule would apply only prospectively. (Collins, supra, at p. 388.)
Johnson construes Collins as indicating only a “preference” for having defendant’s trial testimony to evaluate a challenge to use of prior convictions for impeachment. He contends other decisions indicate an adequate record for review may be created by an offer of proof. Johnson’s reliance of these decisions is misplaced.
Johnson cites People v. Anderson (2001) 25 Cal.4th 543. That case arose in a distinctly different context; it did not involve the use of prior convictions for impeachment. Defendant wanted to call the husband of a prosecution witness for impeachment; the court ruled the husband’s testimony fell under the marital privilege. The high court held it need not address the correctness of the trial court’s ruling because defendant failed to preserve the issue for appeal by making the substance of the challenged testimony known to the court as required by Evidence Code section 354. (People v. Anderson, supra, at pp. 580-581.) Here the substance of the impeaching evidence--the prior conviction for aggravated child assault--was known. Anderson is inapposite.
The appellate decisions Johnson cites offer no more assistance. The trials in People v. Flanagan (1986) 185 Cal.App.3d 764, 773-774 and People v. Jackson (1987) 187 Cal.App.3d 499, 505, disapproved on another point in People v. Jones (1991) 53 Cal.3d 1115, 1144, occurred before the prospective rule announced in Collins took effect. In People v. Hoze (1987) 195 Cal.App.3d 949, 955, this court found no error because as a matter of law the trial court did not abuse its discretion in permitting impeachment with defendant’s priors.
The rule set forth in Collins applies in this case, as the trial court expressly advised Johnson. By failing to testify, Johnson failed to preserve his objection to the court’s ruling on sanitization of his prior conviction.
IV.
Any Bruton Error was Harmless Beyond a Reasonable Doubt
Johnson contends the trial court prejudicially erred in denying his motion for a mistrial after Helena testified that codefendant Martinez told her he was with a friend when he killed the man in Mountain Gate. Johnson contends Helena’s testimony violated a court order not to mention anyone other than Martinez in relating Martinez’s admission about the killing. He further contends her testimony violated his confrontation rights under Bruton v. United States (1968) 391 U.S. 123 [20 L.Ed.2d 476] (Bruton).
Background
Before trial, Johnson moved to sever his trial from that of Martinez due to Martinez’s admission to Helena about the killing. When the trial court raised the issue of whether Martinez’s reference to being with a friend was problematic, the prosecutor indicated he would advise Helena not to mention anyone other than Martinez. After further discussion and a break, the trial court indicated it thought that Martinez’s statement could come in against both Martinez and Johnson as a statement against penal interest under People v. Greenberger (1997) 58 Cal.App.4th 298. The prosecutor was not willing to rely on Greenberger, and agreed to redact Martinez’s statement to remove any reference to Johnson. Martinez’s attorney agreed to have his client’s statement indicate that Martinez shouldered the whole responsibility. The trial court asked counsel to explain his tactical reasons in camera for the record.
Greenberger held that admitting a codefendant’s statements against penal interest in a joint trial did not violate Bruton. (Greenberger, supra, 58 Cal.App.4th at pp. 331-334.)
Later, in discussing a hearing under Evidence Code section 402 for Helena, the prosecutor reiterated that the People would not use Martinez’s admission about the killing against Johnson, believing there was sufficient other evidence tying Johnson to the crime. The court assigned counsel for Johnson the task of drafting an appropriate limiting instruction. The court explained Helena’s testimony was not going to be redacted in the usual sense, but her testimony would be limited. She would be instructed as to what she could and could not say. Counsel for Johnson wanted an additional admonition before she testified, and the court asked him, as well as the clerk, to remind the court. There was no further admonishment.
At trial Helena testified to Martinez’s admission about the killing of Kohn. The People asked if Martinez told her anything else about this murder. When the defense objected to the question as argumentative, the trial court reworded the question to ask if Martinez told her anything about this event. Helena answered Martinez said he was with a friend.
The jury learned the friend was Johnson. Later in the trial, Detective Thomas Campbell testified about his interview with Helena. He testified Helena gave him several names of Martinez’s friends and one was Michael Pajarro (no other names were mentioned). Later, Helena clarified the last name was Johnson. Detective Campbell also testified that after interviewing Helena, they talked to Goodwin in Oregon, looking for Johnson.
Outside the presence of the jury, the court and counsel discussed what remedial steps were necessary in light of Helena’s testimony that Martinez said he was with a friend. Johnson argued that Helena’s testimony that Martinez said he went with a friend violated his confrontation rights under Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford). The trial court disagreed it was a Crawford violation, but the testimony did violate the court’s order and the prosecutor’s instructions not to mention anyone other than Martinez. The court, however, found it “a manageable problem” because Kohn’s neighbor testified she heard three male voices and that testimony was uncontradicted, and there was evidence, in the form of a bloody palm print, that Johnson was at the crime scene. The court denied Johnson’s motion for a mistrial. The court later decided to do some research and determine if Helena’s statement violated Aranda-Bruton (People v. Aranda (1965) 63 Cal.2d 518; Bruton, supra, 391 U.S. 123 [20 L.Ed.2d 476]).
The California Supreme Court had anticipated the holding of Bruton in People v. Aranda, supra, 63 Cal.2d 518, which announced a rule of procedure for joint criminal trials. The court held that the practice of permitting joint trials when the confession of one defendant which inculpates the other is admitted in evidence with limiting instructions was prejudicial and unfair to the nondeclarant defendant. (Id. at pp. 529-530.) After the passage of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)), the California Supreme Court held the rule of Aranda was abrogated to the extent it required exclusion of relevant evidence that need not be excluded under federal constitutional law. (People v. Fletcher (1996) 13 Cal.4th 451, 465.) Accordingly, we refer to the issue as Bruton error.
Before Helena resumed testifying, the court asked her if she had been instructed not to mention any third parties in relation to what Martinez told her. She confirmed she had been told that several times, but forgot when she answered about Martinez’s friend. The court admonished her that in talking about what Martinez said, she was not to refer to any third parties.
At the end of Helena’s testimony, the court gave counsel a number of citations on the Bruton issue. The next day, the court apologized for the possible wild goose chase. It had concluded that despite the prosecutor’s willingness to redact Martinez’s statement, it was admissible against both defendants as a statement against penal interest. The court found no problem under Crawford because the statements were not testimonial. Further, even if there was a Bruton error, it was not so egregious as to require a mistrial. Johnson disagreed with the court’s ruling. Although he agreed the statement was against penal interest, he argued he was still denied the right to cross-examine Martinez.
At the end of trial, the court gave the following limiting instruction: “During the trial certain evidence was admitted for a limited purpose. You may consider that evidence only for that purpose and for no other. You have heard evidence that defendant, Derek Martinez, made a statement out of court. You may consider that evidence only against him, not against defendant, Michael Johnson.”
Analysis
Helena’s testimony that Martinez told her he was with a friend the night of the Mountain Gate killing violated the court’s order and the prosecutor’s instructions that she not mention any third party in reciting what Martinez told her. A mistrial is an appropriate remedy only if the defendant’s chances for a fair trial have been irreparably damaged. (People v. Burgener (2003) 29 Cal.4th 833, 873.) A trial court’s ruling denying a mistrial is reviewed under the deferential abuse of discretion standard. (People v. Williams (2006) 40 Cal.4th 287, 323.)
Johnson contends the error in admitting this evidence is more serious; it is of constitutional dimension. Because Martinez’s statement implicated Johnson and Johnson was unable to cross-examine Martinez, the admission of this statement raises concerns under the confrontation clause of the Sixth Amendment. The confrontation clause is applicable to the States. (Pointer v. Texas (1965) 380 U.S. 400 [13 L.Ed.2d 923].) In Bruton, supra, 391 U.S. 123, at page 126 [20 L.Ed.2d at p. 479], the United States Supreme Court held the admission of extrajudicial statements of a codefendant in a joint trial violated the nondeclarant defendant’s right of cross-examination even though the statement was admitted only against the declarant. The court reasoned that limiting instructions could not adequately ensure the jury would not use the evidence against the nondeclarant. “The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.” (Id. at p. 136 [20 L.Ed.2d at p. 485], fn. and citation omitted.)
Where the codefendant’s statement is not incriminating on its face, redaction can cure the Bruton problem. In Richardson v. Marsh (1987) 481 U.S. 200 [95 L.Ed.2d 176], a redacted confession by a codefendant that omitted all references to the nondeclarant defendant was found not to violate Bruton. The court held “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Id. at p. 211 [95 L.Ed.2d at p. 188], fn. omitted.)
Redactions, however, are not always sufficient. In Gray v. Maryland (1998) 523 U.S. 185 [140 L.Ed.2d 294], the codefendant’s confession was read to the jury with the words “deleted” or “deletion” substituted for the names of the other participants in the beating that led to the victim’s death. The Supreme Court concluded the redaction was inadequate under the circumstances, because, although the names of the other participants were eliminated, the redacted version continued to refer directly to the existence of the nonconfessing defendant. (Id. at p. 192 [140 L.Ed.2d at p. 300].) The court explained: “Redactions that simply replace a name with an obvious blank space or a word such as ‘deleted’ or a symbol or other similarly obvious indications of alteration... leave statements that, considered as a class, so closely resemble Bruton’s unredacted statements that, in our view, the law must require the same result.” (Id. at p. 192 [140 L.Ed.2d at p. 301].)
Here Johnson and the Attorney General disagree as to whether the reference to “friend” falls within Richardson or Gray. They further disagree whether after Crawford, Bruton error is limited to those situations in which the codefendant’s statements are testimonial. In Crawford, the United States Supreme Court held out-of-court statements that are testimonial in nature must be excluded under the confrontation clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the declarant. (Crawford, supra, 541 U.S. 36, at pp. 68-69 [158 L.Ed.2d 177 at p. 203].) The court suggested nontestimonial hearsay could be regulated by state evidentiary law or even exempted from confrontation clause scrutiny altogether. (Ibid.)
In People v. Garcia (2008) 168 Cal.App.4th 261, 283, footnote 12, the court declined to decide whether the Bruton rule on extrajudicial statements applied only to testimonial statements, noting the issue was “unsettled.” We too find it unnecessary to decide whether there was Bruton error in this case or the effect of Crawford on such error. Any such error is subject to the beyond-a-reasonable-doubt standard of harmless error set forth in Chapman v. California (1967) 386 U.S. 18 [17 L.Ed.2d 705]. (Harrington v. California (1969) 395 U.S. 250 [23 L.Ed.2d 284].) Here any error in admitting Helena’s testimony that Martinez said he was with a friend when he committed the Mountain Gate killing was harmless beyond a reasonable doubt. Kohn’s neighbor Sandra Drewek testified she heard three male voices coming from Kohn’s apartment that night. She heard Kohn calling for help and one man say “don’t do that” while another said there was a girl next door. This evidence established that there were two men present when Kohn was assaulted. That Johnson was one of them was established by the presence of his bloody palm print; he was at the scene after the assault began and before the police arrived. His participation in the events that night was corroborated by Goodwin’s testimony that Johnson arrived home late one night with Martinez and a shotgun, acted nervous and threw away clothes, and thereafter had money and a large amount of marijuana. The very reason that the prosecutor declined the trial court’s offer to admit Martinez’s statement against Johnson--that there was sufficient other evidence to tie Johnson to the crime--made any error in permitting the jury to hear such evidence harmless beyond a reasonable doubt.
V.
There was No Error In Denying the Motion to Sever
As noted above, Johnson moved to sever his trial to avoid the jury hearing Martinez’s admission to Helena about the killing. The trial court denied the motion. Johnson renewed his motion to sever after Helena testified Martinez said he was with a friend. The court took the matter under submission to research the law on Bruton error. The court later determined there was no error.
Johnson contends the trial court prejudicially erred in denying his motion for severance. He contends both his rights of confrontation and due process were denied because the jury was exposed to Martinez’s extrajudicial statement implicating Johnson as an accomplice to the killing.
Johnson’s argument about severance is based exclusively on Bruton error. As set forth above, any such error was harmless beyond a reasonable doubt. Accordingly, there was no prejudicial error in denying severance.
VI.
Restitution Order is a Joint and Several Obligation
The trial court ordered both Johnson and Martinez to pay $1,975 in restitution for amounts claimed by the Victim Restitution Board. Johnson contends the trial court erred in failing to designate the victim restitution order as a joint and several obligation to avoid an unauthorized overpayment.
In People v. Blackburn (1999) 72 Cal.App.4th 1520, two defendants were convicted in the murder of two teenage boys. The court ordered each defendant to pay direct victim restitution of $7,663.08, the amount the victims’ families had incurred in expenses. (Id. at p. 1533.) Defendants argued the orders would result in unjust enrichment. The defendant who was sentenced second requested his restitution order be stayed until the other defendant died or met the payment requirement. (Id. at p. 1535.)
The Blackburn court noted the trial court had authority to impose a joint and several restitution order. “It seems glaringly obvious that is what it did here.” (People v. Blackburn, supra, 72 Cal.App.4th at p. 1535.) There was no double recovery and each defendant was entitled to a credit for any payments by the other. To make the order clear and out of an excess of caution, the court modified the judgment to provide expressly for a joint and several restitution order. (Ibid.)
We think this case is like Blackburn andit is obvious the trial court intended a joint and several restitution order. As in Blackburn, we will modify the judgment to make this clear.
VII.
The Trial Court Properly Calculated Johnson’s Pre-Sentence Custody Credit
Johnson contends he is entitled to an extra day of pre-sentence custody credit. Specifically, he contends he is entitled to credit for January 19, 2005. Because Johnson received credit for that day in another case, his contention has no merit.
The court sentenced Johnson to 26 years to life, to be served consecutively to the sentence he was serving in case No. 05F0262, the child molestation case. The court awarded Johnson 189 days of actual credit and 28 days of conduct credit for a total of 217 days of presentence custody credit. Subsequently, Johnson’s appellate counsel moved to correct the credit calculation.
The court held a hearing at which the proper determination of custody credits was made. The parties agreed Johnson had been arrested in the murder case on July 14, 2004. Johnson remained in custody and was booked in the child molestation case No. 05F0262 on January 19, 2005. He was awarded custody credit in that case from January 19, 2005 through September 14, 2005, when he was sentenced. The trial court found he was not entitled to credit for this period of time for the murder case, as that would result in double credits. The court calculated the murder case credits as 189 actual days from the date of Johnson’s July 14, 2004 arrest until January 18, 2005, the day before he was arrested in the child molestation case. Because the murder case took place in 1997, before the 1998 effective date of section 2933.2, which precludes conduct credit in murder cases, Johnson was entitled to 28 days of presentence conduct credit, for a total award of 218 days credit. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1317.)
Johnson contends the court undercounted his custody credit. He asserts he is entitled to credit for January 19, 2005. Johnson, however, received credit for this day in case No. 05F0262. Under section 2900.5, subdivision (b), “Credit shall be given only once for a single period of custody attributable to multiple offenses for which a consecutive sentence is imposed.” The trial court properly calculated Johnson’s pre-sentence custody credit.
MARTINEZ’S CONTENTIONS
VIII.
The Trial Court did not Err in Denying Discovery of Helena’s Address and Sealed Statement
Martinez contends the trial court erred in denying his discovery request for Helena’s address. He further contends the court erred in refusing to disclose to the defense a redacted transcript of Helena’s in camera testimony on this issue. Johnson joins in this contention. In connection with this contention, Martinez requests this court unseal the sealed in camera transcripts of proceedings on December 27, 2004, and May 5 and 10, 2005, on this issue.
Background
Before trial Martinez moved for discovery under section 1054.1, including Helena’s address. The People opposed the motion to disclose Helena’s address for good cause under section 1054.7. Helena was in the California Witness Protection Program due to Martinez’s threats to kill her, which resulted in his conviction for criminal threats under section 422.
This motion was denied without prejudice. The court ordered the People to make Helena available to the defense for an interview.
Martinez made a second discovery motion. The prosecution had made Helena available for an interview, but only with a representative of the district attorney’s office, a victim-witness advocate, present. Martinez declined this offer.
On December 27, 2004, the court held an in camera hearing to determine whether there was good cause under section 1054.7 not to disclose Helena’s address. At the conclusion of the hearing, the court ordered the transcript of the in camera hearing sealed. The court found good cause to prevent the disclosure of Helena’s address and phone number after June 29, 2004, when she was placed in the Witness Protection Program.
Martinez then sought disclosure of Helena’s in camera testimony as a statement of a witness under section 1054.1, subdivision (f). The People responded section 1054.7 was an exception to the general discovery rule of section 1054.1 and explicitly required the transcript of the good cause hearing be sealed. The court denied the motion, noting there was no petition to unseal, and section 1054.7 provided for unsealing only on appeal.
Martinez moved for the trial court to review the sealed transcripts and to provide them to the defense. The People again opposed the motion. The court was unsure whether it had authority to unseal a transcript ordered sealed by another judge, but agreed to review the transcript.
Subsequently, the court indicated it was considering releasing portions of the sealed transcript, but wanted to give the People the opportunity to put objections on the record. The court then met with the prosecutor in camera on May 5, 2005. A second meeting was held May 10, 2005. At the conclusions of these in camera hearings, the court decided not to release anything.
Ruling Not to Disclose Helena’s Address
Under section 1054.1, subdivision (a), a defendant is entitled to the names and addresses of persons the prosecution intends to call as witnesses at trial. “The witness’ name and address open countless avenues of in-court examination and out-of-court investigation.” (Smith v. Illinois (1968) 390 U.S. 129, 131 [19 L.Ed.2d 956, 959].) Disclosure may be denied for “good cause,” which includes threats or possible danger to the witness. (§ 1054.7.) We review the court’s order for an abuse of discretion. (People v. Panah (2005) 35 Cal.4th 395, 458.)
We find no abuse of discretion as there was a credible allegation of potential injury to Helena. (People v. Panah, supra, 35 Cal.4th at p. 458.) Martinez had threatened to kill Helena; his threats had resulted in a conviction under section 422 and Helena’s placement in the Witness Protection Program. Nor does Martinez establish any prejudice from withholding Helena’s address. Helena made clear she did not want to speak to the defense. She met with Johnson’s defense team with an advocate present, but would not speak to them, as was her right. (Reid v. Superior Court (1997) 55 Cal.App.4th 1326, 1332.) As the trial court noted, a witness’s address also permits an attorney to interview neighbors about the witness’s reputation. But Helena was hardly a stranger to Martinez; she had known him since she was 14 and they lived together for many years. Even without her current address, Martinez could have interviewed people about Helena’s reputation.
Ruling on Disclosing the Sealed Transcripts
Martinez contends the trial court erred in refusing to disclose, with redactions, the contents of the December 27, 2004 sealed transcript as a relevant recorded statement of a witness under section 1054.1, subdivision (f). He contends the May 5 and 10, 2005 transcripts should also have been disclosed. He contrasts this case with Alvarado v. Superior Court (2000) 23 Cal.4th 1121 (Alvarado), in which after sealing the in camera hearing under section 1054.7, the court issued detailed conclusions of fact and law. Martinez contends the paucity of the record here--the minute order simply stated there was good cause to withhold Helena’s address--denies him due process and the right to an adequate record on appeal.
In Alvarado, defendants were charged with murdering a jail inmate; the murder was allegedly witnessed by three other inmates. (Alvarado, supra, 23 Cal.4th at p. 1126.) The People refused to disclose the names of these witnesses, and obtained an indictment from a grand jury. (Ibid.) When the defendants continued to seek the witnesses’ names and addresses, the court held a series of in camera hearings to permit the People to establish good cause to deny disclosure. Thereafter, the court issued detailed factual findings, primarily relating to the belief the murder was ordered by the Mexican Mafia and the danger to the witnesses posed by the Mexican Mafia. (Id. at pp. 1128-1130.) The factual findings included details about the manner of the killing. (Id. at p. 1129.) The Supreme Court held the trial court was justified in delaying disclosure of the witnesses’ identity, but its order went too far in allowing the People to withhold their identities for the duration of the proceedings and have them testify anonymously at trial. (Id. at pp. 1151-1152.)
We find Alvarado distinguishable. The primary distinction, of course, is here Martinez knew Helena’s identity and thus had the means to fully cross-examine her. Further, Helena testified at the preliminary hearing about Martinez’s admission and his gun and was subject to cross-examination by both defense counsel. Martinez cannot claim he did not know the reason for withholding Helena’s address. In addition to the prosecutor’s representation that she was in witness protection, there was an extensive Evidence Code section 402 hearing on the reason Helena delayed reporting Martinez’s statements. At this hearing, Helena testified at length about Martinez’s prior acts of violence against her, including raping her, pointing guns at her and threatening to kill her.
Martinez’s contention that the cross-examination of Helena was deficient is addressed in part X, post.
Section 1054.7 expressly provides that the record of the in camera hearing on good cause to deny disclosure shall be sealed and made available to an appellate court if there is an appeal or writ. The trial court has discretion to unseal the matter after trial and conviction. (Ibid.) As a specific statute, section 1054.7 would control in the case of a conflict with the general disclosure requirements of section 1054.1. (People v. Gilbert (1969) 1 Cal.3d 475, 479.) However, we find no conflict. Section 1054.1 requires the prosecuting attorney to disclose certain information, including relevant recorded witness statements, “if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies.” (§ 1054.1.) The sealed transcripts were not in the possession of the prosecutor or any prosecuting agencies; they were in the possession of the court. The trial court did not err in denying Martinez’s request for disclosure of the sealed transcripts.
Section 1054.7 reads: “The disclosures required under this chapter shall be made at least 30 days prior to the trial, unless good cause is shown why a disclosure should be denied, restricted, or deferred. If the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately, unless good cause is shown why a disclosure should be denied, restricted, or deferred. ‘Good cause’ is limited to threats or possible danger to the safety of a victim or witness, possible loss or destruction of evidence, or possible compromise of other investigations by law enforcement.
Motion to Unseal Transcripts
Martinez requests this court unseal the sealed transcripts or “alternatively, this Court should at least issue a paraphrase that allows a meaningful opportunity for supplemental briefing.” Martinez contends his constitutional rights may have been violated if the transcripts contain information that was exculpatory (Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2d 215, 218]) or that would have aided confrontation and cross-examination.
As discussed above, Martinez had ample means to cross-examine Helena. He knew her and had heard her testimony at the preliminary hearing, as well as in the Evidence Code section 402 hearing. We have reviewed the sealed transcripts, and find nothing exculpatory or that would have materially assisted cross-examination. Accordingly, we deny the requests to unseal the transcripts or issue a paraphrase to permit supplemental briefing.
IX.
Any Error in the Refusal to Revisit the Discovery Issue was Harmless
Before trial, Martinez again requested Helena’s address, contending disclosure was required at the time of trial under Alvarado. The court took the matter under submission. Later, during Helena’s testimony, Martinez asked for a ruling. The court stated it had no authority to overrule a ruling by another judge.
Martinez contends the trial court’s failure to exercise discretion was an abuse of discretion. He asserts Alvarado expressly permits reassessment of the ruling on disclosure during trial. (Alvarado v. Superior Court, supra, 23 Cal.4th at p. 1149, fn. 14 [“we should not be understood as precluding the trial court, as this case proceeds, from reassessing any question with regard to disclosure of the identities of these witnesses”].) Martinez contends there were changed circumstances. Helena would not talk to the defense even with an advocate present; the tape of her initial interview, with possible impeaching evidence, was lost; Goodwin’s testimony was not clearly corroborating as it was vague as to time and had no direct connection to the murder; and it was not until trial that the full force of the third party culpability evidence, implicating Harris, was known. Johnson joins in this contention.
The Attorney General responds simply that Martinez has failed to preserve this issue by failing to get a formal ruling. The court was only recalling its earlier statement about not having authority to overrule another judge. The court indicated it needed “to read the case that talks about the refusal or failure of the People to provide names and addresses.”
Assuming arguendo that Martinez preserved this issue for appeal and that the trial court erred in refusing to reassess the need to deny disclosure of Helena’s address, we find no prejudicial error. Again, this is not a case like Alvarado where the witness was unknown to defendant and was going to testify anonymously. As discussed above, Helena would not talk to the defense, but Martinez had known her for many years and she had testified and was cross-examined in proceedings before trial. Thus, Martinez had ample means to explore her reputation for veracity and other manner of impeachment. Given Martinez’s familiarity with Helena, both in this trial and generally, his attempt to analogize the withholding of Helena’s address to the placing of a screen in front of the witness in Coy v. Iowa (1988) 487 U.S. 1012 [101 L.Ed.2d 857] fails.
X.
Martinez was not Denied Effective Cross-Examination of Helena
Martinez contends the cross-examination of Helena was deficient. Specifically, he contends counsel failed to follow through on his opening statement and cross-examine Helena on her divorce from and custody battles with Martinez to show her motive to lie about Martinez’s confession. In moving for a new trial, trial counsel claimed he was unable to cross-examine Helena about the divorce because the trial court had ruled that questioning her about the divorce would open the door to otherwise inadmissible evidence of Martinez’s acts of domestic violence. The trial court disagreed that it had made such a ruling; the court had only suggested questions about divorce would open the door to evidence of domestic violence. The trial court believed its ruling was tentative and trial counsel failed to press for a final ruling. Martinez contends that whether through trial error of the court’s ruling or ineffective assistance of counsel if trial counsel failed to secure a ruling, he was denied his Sixth Amendment confrontation rights because counsel did not cross-examine Helena to show “a prototypical form of bias on the part of [a] witness.” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680 [89 L.Ed.2d 674, 684].) Johnson joins in this contention.
Background
Helena was the key witness against Martinez. In cross-examining her, however, he had to be careful as he did not want evidence of his terrible acts of violence against her to be admitted. Such evidence would have been devastating in a murder case where the victim was beaten to death because, according to Helena, he would not sit still. Both the People and Johnson, who sought to pin the murder entirely on Martinez, wanted to introduce Martinez’s prior bad acts. Throughout trial there was considerable discussion about the issue. To put Martinez’s contention in context, we recount how it was addressed.
As mentioned above, prior to trial there was a hearing under Evidence Code section 402 (the 402 hearing), to determine whether evidence of Martinez’s acts of domestic violence against Helena was admissible to show why she delayed in reporting his admission of the killing. Helena testified Martinez was abusive; she recounted a series of violent acts. Martinez punched her many times, including in her stomach when she was pregnant, and put knives to her throat 10 times. He killed her cat and dog. On more than one occasion, he pointed a gun at her and pulled the trigger. He raped her and penetrated her with objects, including nunchuks and a knife. He threatened to kill her and choked her over 10 times. Once when she awoke, Martinez was poised with a pillow and about to put it over her face.
The People argued Helena’s fear of Martinez was a factor in her not reporting his statements. The trial court, however, found an insufficient nexus between the acts of violence and the delayed reporting. It found the most compelling evidence of the reason for the delay was that Helena did not think Martinez’s confession was true. The court indicated it was not disallowing evidence of Martinez’s threats relating to his confession.
The court later described the issue litigated in the 402 hearing as limited to whether Helena failed to report the confession due to the domestic violence. The court found she did not report it because she did not believe it.
In opening statement Martinez told the jury that in June 2004, when Helena saw the reward poster, Martinez’s marriage was over. “Couple of kids, and it had the ugliness that you will see in a divorce. There is [sic] battles over money, there was battles over child custody.” Martinez’s opening statement concluded, “His ex-wife who dislikes him and they’re having an ugly divorce says seven years ago he confessed to me and I just got around to telling you. That’s the whole case.”
After the first witness testified, Johnson wanted to reopen the 402 hearing on admitting Martinez’s prior bad acts because the opening statement suggested the only reason for the divorce was marital and money problems. The court responded, “I thought you were on very dangerous grounds there, Mr. Williams [Martinez’s counsel]. I took note of that myself. You put Miss Martinez’s state of mind squarely at issue, seems to me by your opening statement. Martinez disagreed and the court replied, “So I will look forward to a very spirited discussion about that in the future.”
Just before Helena testified, Johnson raised the issue of the court’s ruling that Martinez’s bad acts would not come in and Martinez’s opening statement indicating Helena had a motive to lie as the result of the divorce. Johnson took the position that if motives were explored, it would open the door to Martinez’s prior bad acts. The court stated opening statements did not open doors because they were not evidence. However, the court cautioned Martinez that he was “on notice, if he hadn’t been before, I’m sure he understood the risks associated with the cross-examination of Miss Martinez, but he is certainly on notice that he’s on thin ice with heavy ice skates, as the old expression goes.”
Martinez cross-examined Helena about the timing of the alleged confession and her statements to the police. He then asked about the poster. Helena testified the person (Kohn) on the poster was cute, so it caught her eye. She claimed, however, not to notice the $10,000 reward. She denied not telling anyone about the confession until she saw the poster. She said she told a friend in 2003.
Outside the presence of the jury, Johnson and the People requested that they be allowed to put on evidence of the domestic violence to show why Helena had difficulty remembering things. Martinez complained his cross-examination was severely limited due to fear of opening the door to past acts of violence. He could not ask Helena why she did not report the confession earlier.
The court responded the prosecutor was in the same situation as to Helena’s memory; he could not ask why. The court continued, “I, just so the record is clear, when you say you are limited in your cross-examination, it’s not because I’m placing that limit on you. You are entitled to ask her within reason any question you think you want to. It is your professional sense of responsibility to your client, and knowing that by doing so, asking questions in certain areas you may well open the door that I think you’re finding your cross-examination limited, not because of rulings I made.” Martinez agreed, “That’s absolutely true.”
When the People continued to press the need to explore these issues relating to the domestic violence, the court noted, “Well, we’re not done.” The court told Johnson to “be guided by these comments. Like I said, I’m not fettering your opportunity to ask her questions, just perhaps deferring that until all these issues are somewhat more resolved.”
Martinez continued his cross-examination of Helena. He elicited that Helena married Martinez five months after the confession. Helena testified she never paid attention to the Mountain Gate murder; Martinez told her the police found those who did it. Martinez then questioned Helena about her charge that Martinez’s mother had molested her daughter.
The People again claimed Martinez had opened the door to his past acts of violence in his cross-examination of Helena. The court responded, “You may be right.” Martinez explained he did “dance around” the issue of why Helena did not report earlier. He raised the issue that she had received over $40,000 in benefits from victim’s assistance and he avoided those questions to not open the door to past acts. The court stated they may have “tried to parse this out too narrowly.” It was a source of wonder why she married a man five months after he confessed to killing someone. The court indicated there were questions they simply would not get the answers to. The court restated its belief that Helena did not report the confession and married Martinez because she did not believe his confession. The court concluded that if there was a relevant theory to admit the domestic violence evidence, “we need to litigate” it.
After a short break, the court found Martinez had not opened the door to the evidence of domestic violence. That evidence shed no light on whether the confession was true. That Martinez’s violence may have contributed to her belief that his confession was true once she saw the poster was just “her gratuitous opinion.” The court repeated that opening statements are not evidence and do not open doors. There had been no evidence of the divorce.
Before testimony resumed, the court again indicated if there was a relevant basis to admit the domestic violence evidence, it should be litigated.
Analysis
“The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U.S. 400[, 85 S.Ct. 1065, 13 L.Ed.2d 923] (1965). Confrontation means more than being allowed to confront the witness physically. ‘Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.’ [Citation.] [¶]... [¶] Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” (Davis v. Alaska (1974) 415 U.S. 308, 315-316 [39 L.Ed.2d 347, 353].)
Martinez’s contention is premised on the assertion that he could--and should--have cross-examined Helena about the messy divorce, thus exposing her motive to lie about the confession, without opening the door to the admission of his prior acts of domestic violence. Specifically, Martinez contends there should have been cross-examination comparable to that at the preliminary hearing, at which he elicited from Helena that she was recently divorced from Martinez; custody battles continued after the divorce as she was trying to terminate his visitation because his mother molested her daughter; she told the police the children were terrified of Martinez and together they watched news stories about the case.
Questioning Helena posed dangers because she often failed to respond to the question or testified contrary to explicit instruction (see part IV, ante). For example, during the preliminary hearing when asked about the custody battles, Helena responded, “he was very abusive....”
In Delaware v. Van Arsdall, supra, 475 U.S. 673, 677 [89 L.Ed.2d 674, 682], there was a denial of the right to effective cross-examination where defendant was barred from any cross-examination about the dismissal of charges against a prosecution witness. Here some of the evidence Martinez contends was missing from cross-examination was nevertheless before the jury. Helena testified she was no longer married to Martinez when she was interviewed by the detective. On cross-examination by Martinez, Helena testified there was a court order distributing property and part of her property was a picture of Martinez she later gave to the police. From this testimony, the jury would have understood Helena and Martinez were divorced and from the nature of her testimony could easily infer she did not like Martinez. In reaching a verdict, jurors apply common sense and life experiences. (See People v. Hardy (1992) 2 Cal.4th 86, 210.) Helena’s status as Martinez’s ex-wife alone provided a basis for finding she was biased against him. There was also testimony about Helena reporting that Martinez’s mother molested her daughter. Helena explained she made the report based on her daughter’s statement, but her daughter later said it was not her grandmother. Helena testified she had a good relationship with Martinez’s mother.
The matters that were left out of cross-examination and the trial were custody battles and that Helena told the police her children were terrified of Martinez and that she watched news stories about the case with them. While this evidence may have shown some bias on the part of Helena, it is difficult to see how on balance it would have aided Martinez’s defense because Helena’s bias against Martinez was largely due to his violence against her, a fact he wanted to keep from the jury. The value for impeachment of this evidence of custody battles and the children’s fear depended on whether or not Helena had a good reason to challenge Martinez on custody and whether her report of the children’s fear was accurate. Specific questioning about custody or the children’s fear of Martinez would permit Helena to testify there were good reasons to deny Martinez custody and for the children’s fear--he had been extremely abusive to her. Thus, Martinez’s premise that he should have been able to introduce this impeaching evidence without fear that his prior acts of violence would be admitted falters. Whether the court ruled the domestic violence evidence would come in or merely cautioned that it might, the risk that, in rehabilitating Helena after impeachment, the jury would learn of his extremely violent past was very great. It was sound trial tactics to avoid that risk. Martinez was not denied his right of confrontation in the cross-examination of Helena.
XI.
Trial Court did not Abuse its Discretion in Permitting Mini Opening Statements
Martinez contends the trial court abused its discretion in permitting counsel to make short, 90-second “mini-opening statements” at the beginning of jury selection. Although the court has discretion to permit such statements, Martinez contends the court abused its discretion because its decision was based on a general preference for the procedure rather than an examination of the specific circumstances of the case before it. In a related contention, Martinez asserts the prejudice from Johnson’s “mini-openings” deprived him of due process fundamental fairness and the Sixth Amendment right to confrontation.
Background
Before jury selection began, the court announced it would like each counsel to make a brief opening statement of 90 seconds or less. The court believed that procedure “demystifies some of the process” and is better than simply reading the charges because it fills in some background. Martinez objected, arguing they were all advocates “and this runs the very real danger of there being argument or pre-conditioning a jury before we even pick them.” He wanted an agreed-upon statement read to the jury.
The court understood Martinez’s argument, but disagreed with it. It found the risk of pre-conditioning very low because as soon as the jury was selected, counsel would make extensive opening statements. The court agreed to consider a mutual statement.
Johnson joined Martinez’s objection. He pointed out that with several jury panels, the short opening statements would vary to some extent.
After reviewing the People’s statement and attempting to draft his own, Martinez became more opposed to the idea. The court said it would give counsel the opportunity to make a short statement to the panel of jurors. It believed the matter was within its discretion and it found little prejudice to anyone.
Only the People and Johnson made the “mini-opening statements” and only Johnson’s are at issue. There were four such statements; they were all short and claimed the evidence would show Martinez committed the murder and Johnson was not in the residence at the time of the murder. Johnson’s statements are as follows.
“The evidence also will be presented that Mr. Martinez beat the victim in this case to death with a gun. The evidence also will show that the People allege Mr. Johnson’s palm print was located inside the residence. The evidence will also show that Mr. Johnson was not present in the residence when the victim was murdered.”
“The evidence will show that Mr. Martinez had told his wife that the victim in this case had owed him money for drugs, and that Mr. Martinez went over there to collect that money. That Mr. Martinez beat the victim to death with a gun. And the evidence will also show that Mr. Johnson was not in the residence at the time of the killing. Thank you.”
“Good morning, Ladies and Gentlemen. One additional piece of information that the District Attorney didn’t tell us is we expect the evidence is going to show that Mr. Johnson was not inside the apartment at the time that Mr. Kohn was beaten to death with a gun.”
“Good morning again, Ladies and Gentlemen. The evidence will also show that Mr. Johnson was not in the apartment at the time Mr. Martinez killed Mr. Kohn.”
Martinez did not object to any of these statements. Johnson made no opening statement before trial.
Analysis
Code of Civil Procedure section 223 grants trial courts considerable discretion in conducting voir dire in criminal trials. “The exercise of discretion by trial judges with respect to the particular questions to ask and areas to cover in voir dire is entitled to considerable deference by appellate courts.” (People v. Taylor (1992) 5 Cal.App.4th 1299, 1313.) No conviction shall be reversed due to the exercise of the trial court’s discretion as to voir dire unless there has been a miscarriage of justice. (Code Civ. Proc., § 223.)
Shortly after trial in this case, the Judicial Council of California adopted a new rule permitting brief opening statements such as those given here. Rule 2.1034 of the California Rules of Court provides: “Prior to the examination of prospective jurors, the trial judge may, in his or her discretion, permit brief opening statements by counsel to the panel.” The advisory committee comment states: “This statement is not a substitute for opening statements. Its purpose is to place voir dire questions in context and to generate interest in the case so that prospective jurors will be less inclined to claim marginal hardships.”
Although permitting brief opening statements was well within the trial court’s discretion, Martinez contends the court abused its discretion because it failed to consider the specifics of this case. Martinez relies on Covarrubias v. Superior Court (1998) 60 Cal.App.4th 1168. Covarrubias held Code of Civil Procedure section 223 abrogated the holding in Hovey v. Superior Court (1980) 28 Cal.3d 1, disapproved on another point in People v. Balderas (1985) 41 Cal.3d 144, 185, that required individual sequestered voir dire during the death qualification portion of a capital case. (Covarrubias, supra, 60 Cal.App.4th at p. 1181.) Under Code of Civil Procedure section 223, “Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases.” The Covarrubias court held this provision gave trial courts discretion to determine whether group voir dire was “practicable.” If it was not, the court could conduct sequestered voir dire. (Covarrubias, supra, at p. 1180.)
In Covarrubias, both the prosecution and defense sought sequestered voir dire. The trial court denied it because after the change in the law, it believed large group voir dire was the “best” and “lawful” process, not because it thought large group voir dire was practicable in that case. (Covarrubias v. Superior Court, supra, 60 Cal.App.4th at p. 1183.) The appellate court found that because the trial court thought it had to conduct large group voir dire and made no determination as to whether it was practicable, it had failed to exercise its discretion. (Id. at p. 1184.)
We find Covarrubias distinguishable. In Covarrubias, the court misunderstood the scope of its discretion, while here the trial court understood it had discretion whether to permit brief opening statements. “I believe these are matters of my discretion.” The court entertained Martinez’s objections, but simply disagreed with them, saying, “I understand your point [but] I don’t share it.”
Martinez contends the actual brief mini opening statements by Johnson proved his objection to the procedure valid. He contends Johnson’s statements served no purpose in jury selection, but simply gave Johnson the opportunity to jockey for position and ally himself with the prosecution. His provocative language attempted to prejudice the jurors in his favor. Martinez contends the brief opening statements “presented with the spectacle of both the prosecutor and co-defendant affirming the guilt of the remaining party.” He contends these statements affected the composition of the jury and affected the trial. He asserts the jury would have believed Johnson learned from Martinez that he committed the murder, although Johnson never put on any evidence to this effect and Martinez had no opportunity to confront Johnson.
Initially, we note Martinez did not object to the actual statements when made. (See People v. Abilez (2007) 41 Cal.4th 472, 493 [failure to object to prosecutor’s comments during voir dire forfeits the contention].) He contends an objection would have been futile. We disagree. While the court clearly had decided to permit the statements, Martinez’s objection on appeal is limited to Johnson’s and its inferences. Nothing indicates an objection to the content of the statement would have been futile.
Moreover, Martinez’s contention that the jury would believe Johnson had told his attorney Martinez was guilty assumes the jury treated Johnson’s brief statement as evidence. The jury was instructed that comments of counsel are not evidence. “The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions. [Citation.]” (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
XII.
Martinez was not Denied Effective Cross-Examination of Goodwin
Martinez contends the trial court erred in refusing to allow him to impeach Christina Goodwin with evidence that Johnson had molested her daughter. He contends this evidence was probative to show Goodwin had an animus against Johnson that was so strong she would use Martinez as a tool of revenge against him. He contends this inference was strong because Goodwin knew the police had arrested Martinez for the murder before she made her statements about Johnson and Martinez.
Background
Once Martinez learned that Goodwin’s daughter was the victim of Johnson’s child molestation conviction, Martinez wanted to use that information to impeach Goodwin. The trial court was skeptical this evidence would be useful to Martinez. The court questioned why Goodwin would make up a story about Martinez.
Martinez raised the issue again before Goodwin was to testify. The court held a hearing under Evidence Code section 402. Goodwin testified to her on-and-off relationship with Johnson. When asked if it was a fair assumption that there was no love lost between her and Johnson due to the molestation, Goodwin responded it was not fair to bring the molestation into the murder case. When asked if she hated Johnson, Goodwin declared, “I’m a child of God, and I don’t believe in hate. Hurt, I’m devastated by it.” Goodwin claimed her feelings for Johnson had nothing to do with Martinez and she bore Martinez no ill will. Before any argument, the court ruled there would be no discussion of the child molestation. Martinez admitted he could not change the court’s mind.
Analysis
Generally, relevant evidence is admissible. (Evid. Code, § 351.) “The ‘existence or nonexistence of a bias, interest, or other motive’ on the part of a witness ordinarily is relevant to the truthfulness of the witness’s testimony (Evid. Code, § 780, subd. (f)), and ‘“[t]he credibility of an adverse witness may be assailed by proof that he cherishes a feeling of hostility towards the party against whom he is called....”’ [Citation.]” (People v. Williams (2008) 43 Cal.4th 584, 634.)
Relevant evidence, however, may be excluded in the court’s discretion “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.)
Rulings under Evidence Code section 352 are subject to review under the abuse of discretion standard. (People v. Story (2009) 45 Cal.4th 1282, 1295.) The trial court has considerable discretion in determining the relevance of evidence. (People v. Garceau (1993) 6 Cal.4th 140, 177.)
We find no abuse of discretion. We agree with the trial court that the probative value of Goodwin’s animus against Johnson because he molested her daughter is weak and tenuous to show she would lie about Martinez. As to Johnson, the prejudice was great; he decided to forego his right to testify in order to keep this evidence from the jury. Further, this inflammatory evidence and Martinez’s convoluted theory of its relevance as to him would have been time consuming in an already long trial and would have diverted the jury’s attention from the issue at hand--the murder of Kohn.
Finally, there was no violation of Martinez’s Sixth Amendment right to confrontation. “Restricting cross-examination to protect the rights of a codefendant does not violate the Fifth or Sixth Amendments to the federal Constitution when the restriction does not materially affect the defense or when the probative value of the excluded evidence is slight. [Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 459.) That was the case here; the evidence had little probative value as to Martinez and did not materially affect his defense. The trial court’s quick ruling after Goodwin was examined in the 402 hearing, without objection by Martinez, indicates Goodwin was credible in denying any ill will towards Martinez.
XIII.
Trial Court did not Err in Denying Martinez’s Motion for a Mistrial
Helena testified she told a friend about Martinez’s confession in 2003 “after the attempted murder.” She was referring to an incident when Martinez put a gun to her head and pulled the trigger, although this explanation was not before the jury. As a result of the incident, Martinez was convicted of assault with a deadly weapon.
Outside the presence of the jury, Martinez asked for a mistrial. He ended his request with the following: “Now, I understand she didn’t say who the attempted murder was from, so maybe it’s not that big of a problem.” The trial court agreed with that assessment and denied the motion for a mistrial.
Martinez raised the point again in his motion for a new trial.
Martinez contends the trial court abused its discretion in denying the motion for a mistrial. Alternatively, he contends trial counsel was ineffective in failing to press for a mistrial.
“A trial court should grant a motion for mistrial ‘only when “‘a party’s chances of receiving a fair trial have been irreparably damaged’”’ [citation], that is, if it is ‘apprised of prejudice that it judges incurable by admonition or instruction’ [citation]. ‘Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ [Citation.] Accordingly, we review a trial court’s ruling on a motion for mistrial for abuse of discretion.” (People v. Avila (2006) 38 Cal.4th 491, 573.) Further, because the trial court has such broad discretion, “it would be a rare case in which the merits of a mistrial motion were so clear that counsel’s failure to make the motion would amount to ineffective assistance.” (People v. Haskett (1982) 30 Cal.3d 841, 854.)
Applying these standards, we find the trial court did not abuse its discretion and counsel was not ineffective. Helena’s reference to the attempted murder was both brief and ambiguous; she did not connect it to Martinez. Both trial counsel and the trial court found it was not unduly prejudicial and we defer to that assessment. (See People v. Pride (1992) 3 Cal.4th 195, 260 [defer to trial court’s observations and credibility determinations in ruling on mistrial]; People v. Riel (2000) 22 Cal.4th 1153, 1185 [court reviewing claim of ineffective assistance will not second-guess counsel’s reasonable tactical decisions].)
XIV.
There was no Cumulative Error
Martinez contends all of the errors he raises affected the primary issue of whether Helena was telling the truth about Martinez’s confession. He asserts the combined effect of the above errors were sufficiently prejudicial as to require reversal under any standard. We have found no error; we assumed there was error in failing to revisit the issue of discovery of Helena’s address, but found any such error harmless. Since there is no error to add to that assumed error, we find no cumulative error.
XV.
CALCRIM No. 220 was a Proper Instruction
Martinez contends CALCRIM No. 220, which defines reasonable doubt, is an incorrect statement of law, or one that is likely to be applied in an unconstitutional manner. Defendant contends the instruction is defective because it fails to give proper emphasis to a juror’s individual subjectivity in the reasonable doubt standard, aggravates the ambiguity of the phrase “abiding conviction,” and fails to convey that proof beyond a reasonable doubt requires a subjective certitude of the truth of the charge. Johnson joins in this contention.
The court instructed the jury: “The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they had been arrested, charged with a crime, or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of the crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
This court recently rejected the same contention in People v. Zepeda (2008) 167 Cal.App.4th 25, at pages 29-32. Indeed, we found, “Defendant’s argument borders on the frivolous.” (Id. at p. 30.) Nothing in defendant’s argument causes us to reconsider the issue.
XVI.
There was Sufficient Evidence of Felony Murder
Martinez and Johnson were convicted of first degree murder. The case was submitted to the jury on two theories of first degree murder: willful, deliberate, premeditated murder and felony murder with robbery or burglary as the underlying felony. The jury was instructed that in this case burglary required the intent to commit robbery.
Martinez contends there was insufficient evidence of felony murder so that theory should not have been presented to the jury. He asserts there was no evidence of robbery or burglary because there was no evidence that money or property was taken from Kohn’s apartment or that defendants had the intent to take money or property. Martinez contends the instruction on felony murder requires reversal of the murder conviction. Johnson joins in this contention.
Where a jury is instructed on two theories of the crime and one theory is factually insufficient, the error is harmless if the alternate theory is factually sufficient “absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (People v. Guiton (1993) 4 Cal.4th 1116, 1129.) Martinez contends here there is an affirmative indication the verdict rested on felony murder because in closing argument the People conceded there was no express malice, only implied malice. Since first degree murder on a theory of premeditation and deliberation requires express malice (see People v. Moon (2005) 37 Cal.4th 1, 29), Martinez concludes the jury must have relied solely on felony murder.
At the outset, we clarify that Martinez is not challenging the sufficiency of the evidence of premeditated and deliberate first degree murder. Nor does he challenge the sufficiency or accuracy of the instructions on first degree murder. Rather, his contention is confined to the argument that the People withdrew deliberate, premeditated murder in closing argument by conceding there was no evidence of express malice and he argues there was no evidence of robbery or burglary to support the remaining theory of felony murder.
“Robbery is the taking of ‘personal property in the possession of another against the will and from the person or immediate presence of that person accomplished by means of force or fear and with the specific intent permanently to deprive such person of such property.’ [Citation.]” (People v. Lewis (2008) 43 Cal.4th 415, 464.)
The standard of review where the sufficiency of the evidence is challenged is well established. As our Supreme Court explained in a case also involving a challenge to the sufficiency of the evidence to support a robbery felony-murder conviction, “‘“To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.”’ [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 104.)
There was ample evidence Kohn had money the night he was killed. His girlfriend testified he had large amounts of money, averaging $10,000, which he kept hidden in different spots. She was 99 percent sure he showed money that night while making marijuana sales. Tamra Valadez testified she went to Kohn’s that night. She saw a two-inch stack of money in a little wooden box. She gave Kohn $50 for some marijuana; he put it in his wallet. Her cousin gave Kohn $150, which went into the box. Another visitor that day testified Kohn said he had $9,000 hidden. The visitor also witnessed a drug transaction in which Kohn purchased a pound of marijuana.
In addition, Goodwin testified about the night that Johnson came home with Martinez, carrying a shotgun. He was nervous, asked her to put the gun in the shed, and threw away his clothes. Afterwards, he had a large amount of both money and marijuana.
What Martinez contends is missing is evidence of a taking from Kohn. In closing argument, the People asserted, “So we know at the time of the homicide that he had cash and he had at least a pound of marijuana. And yet none was ever recovered at the crime scene by the people doing the scene processing. It’s gone.” Martinez contends there is no evidence to support this assertion.
Martinez contends this case is similar to People v. Foss (1927) 85 Cal.App. 269, in which the victim testified he had a roll of money before defendant beat him, but failed to testify the money was taken from him. The court found insufficient evidence of robbery. (Id. at p. 271.)
While the evidence of a taking was slight, we find it sufficient. The People questioned a police witness about the failure to find money or a significant amount of marijuana during the search of Harris’s residence. The People failed, however, to ask the same question with regard to the search of Kohn’s apartment. There was testimony Kohn’s apartment was ransacked, but not that the money and drugs were missing. The only evidence that Kohn’s money was missing after his murder came during cross-examination by Martinez. Captain Compomizzo testified he processed Kohn’s wallet and he did not recall seeing any cash, or at least any significant amount of cash. He would have documented it if there had been cash in the wallet. From this evidence a reasonable jury could find the $50 Kohn put in his wallet from Valadez was taken and there was sufficient evidence of robbery.
In closing argument, Martinez praised Captain Compomizzo as a police officer. “He’s awesome. He knows this case backward and forward.” “He is dynamite. He is doing his job. And he’s--he’s absolutely honest.”
Furthermore, even if the evidence of robbery was insufficient, there was no prejudice because the jury was instructed on a factually valid theory of first degree murder: willful, deliberate, premeditated murder. Where there is a factually adequate theory, the conviction is usually affirmed. “If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground.” (People v. Guiton, supra, 4 Cal.4th at p. 1129.) In explaining that affirmance is the norm, the Guiton court explained when reversal might be required. “We may, for example, hypothesize a case in which the district attorney stressed only the invalid ground in the jury argument, and the jury asked the court questions during deliberations directed solely to the invalid ground. In that case, we might well find prejudice. The prejudice would not be assumed, but affirmatively demonstrated.” (Ibid.)
Martinez contends the jury’s reliance on felony murder exclusively is affirmatively shown by the People’s closing argument alone, without any questioning by the jury. In discussing the malice necessary for first degree murder, the prosecutor argued the following: “Express malice, that’s where someone usually says, I want to kill this person. And or implied malice. This is a case of implied malice. How do we know it’s implied malice? Well, we don’t have any statements from any of the witnesses or any statements from either of the defendants saying they wanted to kill... him. So there’s no express.”
The prosecutor continued to argue that the severity of the beating showed implied malice and that was sufficient for first degree deliberate, premeditated murder. Finally, he urged the jury, if not convinced by his argument about malice, to find both defendants guilty of felony murder.
The prosecutor’s argument was legally incorrect; first degree, deliberate and premeditated murder requires express malice. (People v. Knapp (1886) 71 Cal. 1, 6.) But he was also incorrect that the evidence did not show express malice. Express malice requires a manifestation of “a deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188.) The words of defendant are not necessary to show express malice; express malice may be inferred from the defendant’s acts and the circumstances of the crime. (People v. Smith (2005) 37 Cal.4th 733, 741.) Beating a person to death manifests an intent to kill sufficient to find express malice. (See People v. Weatherford (1947) 78 Cal.App.2d 669, 686.)
We do not read the People’s argument to abandon the theory of deliberate, premeditated murder as a theory of first degree murder. The prosecutor did argue the evidence showed premeditation and deliberation, focusing on testimony that both Martinez and Johnson wore dark clothing and Martinez said he parked away from the residence to not leave tire tracks. Martinez does not contend the evidence is insufficient to show deliberate, premeditated murder.
Although the prosecutor misstated the law, the jury was properly instructed on express malice. “The defendant acted with express malice if he unlawfully intended to kill.” The jury was also instructed it must follow the law and “[i]f you believe that the attorney[’]s comments on the law conflict with my instructions, you must follow my instructions.” As noted above, we presume the jury followed the court’s instructions. (People v. Smith (2007) 40 Cal.4th 483, 517; People v. Mickey, supra, 54 Cal.3d at p. 689, fn. 17.) Martinez has failed to demonstrate prejudice under Guiton.
XVII.
There was Sufficient Evidence Martinez’s Assault Prior was a Strike
Martinez contends the trial court’s finding that his prior conviction for assault qualified as a strike must be reversed due to insufficiency of the evidence. He contends the court found only that his prior conviction was for assault with a deadly weapon instead of assault with personal use of a deadly weapon. He contends basing a finding of a strike on this evidence violates federal ex post facto laws.
The information alleged Martinez had a prior conviction of a serious or violent felony, assault with a deadly weapon or by means of force likely to cause great bodily injury, in 1996 “within the meaning of Penal Code Section 1170.12,” the Three Strikes law.
After the jury returned its verdict on the murder charge, Martinez waived his right to a jury trial on the strike prior. To prove the strike, the People offered exhibit 153, documents of the prior conviction, as well as exhibits 154-156, fingerprints and booking photographs to establish Martinez’s identity.
Exhibit 153 included three documents. First, a 1996 minute order indicated Martinez was guilty of assault with great bodily injury and with a deadly weapon in violation of section 254(a)(1) as charged in count 3 of the information. Count 3 of the information alleged Martinez “did willfully and unlawfully commit an assault upon Max Varela, with a deadly weapon, to wit: Knife, and by means of force likely to produce great bodily injury.” The information alleged three counts of assault on three different victims, three corresponding counts of battery with serious bodily injury and one count of mayhem. As to all counts, an enhancement for great bodily injury was alleged, and as to the battery and mayhem counts, there was an allegation of personal use of a deadly weapon. The plea form stated Martinez pled no contest to count 3, with a Harvey waiver (see People v. Harvey (1979) 25 Cal.3d 754), as to the dismissed charges. In his own writing, Martinez described the crime as assault with a deadly weapon; he initialed the understanding that the conviction could add five years to a future prison term if he was convicted of certain felonies listed in Penal Code section 667(a) or Health and Safety Code section 11370.2.
The trial court found the prior assault conviction qualified as a strike. The court explained the information alleged use of a knife and Martinez pled guilty to that charge. The court also considered the section 12022, subdivision (b) enhancement alleging personal use of a knife and Martinez’s acknowledgement that the conviction would be a five year prior, “implicating the fact that this was obviously a felony assault committed with a knife.”
The personal use enhancement was not alleged as to count 3, the charge to which Martinez pled.
The murder in this case occurred in 1997. At that time, prior to the 2001 adoption of Proposition 21 which incorporated all assaults under section 245, subdivision (a)(1) as serious felonies, such assaults constituted a strike prior only if the defendant personally used a knife or personally inflicted great bodily injury. (People v. Winters (2001) 93 Cal.App.4th 273, 276; see also People v. Rodriguez (1998) 17 Cal.4th 253, 261.)
That same test for determining a serious felony applied for purposes of the five-year enhancement under section 667, subdivision (a). (§ 667, subd. (a)(4).) “[A]ny person convicted of a serious felony who previously has been convicted of a serious felony... shall receive... a five-year enhancement for each such prior conviction....” (§ 667, subd. (a)(1).) By acknowledging this collateral consequence in his plea, Martinez acknowledged that his assault conviction was a serious felony under section 1192.7, subdivision (c).
Martinez argues the acknowledgement was only that at some time in the future the conviction might be found to be a serious felony, not that it currently so qualified. We find this argument unconvincing. In guilty plea cases, the trial court is obligated to advise the defendant of the “direct” consequences of his plea (Bunnell v. Superior Court (1975) 13 Cal.3d 592, 605), not possible future consequences that are not yet known. Substantial evidence supported the court’s finding that Martinez’s prior assault conviction qualified as a strike.
DISPOSITION
The judgments against both Johnson and Martinez are hereby modified so as to provide expressly that defendants are jointly and severally liable for the direct victim restitution. As modified, the judgments are affirmed. The trial court is directed to amend the abstracts of judgment to reflect these modifications and to forward certified copies of the amended abstracts to the Department of Corrections and Rehabilitation.
We concur: SIMS , Acting P. J., ROBIE , J.
“Upon the request of any party, the court may permit a showing of good cause for the denial or regulation of disclosures, or any portion of that showing, to be made in camera. A verbatim record shall be made of any such proceeding. If the court enters an order granting relief following a showing in camera, the entire record of the showing shall be sealed and preserved in the records of the court, and shall be made available to an appellate court in the event of an appeal or writ. In its discretion, the trial court may after trial and conviction, unseal any previously sealed matter.”
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge or charges is true. The evidence need not eliminate all possible doubt, because everything in life is open to some impossible or imaginary doubt. In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants’ guilt beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty.”