Opinion
C090267
01-24-2022
THE PEOPLE, Plaintiff and Respondent, v. ANTONIO ALFONSO REYNA, Defendant and Appellant.
NOT TO BE PUBLISHED
(Super. Ct. No. 16FE012775)
MAURO, ACTING P. J.
Defendant Antonio Alfonso Reyna entered a residence where he knew there was a large cache of drugs. Shortly after entering, he began shooting and retreated back out through the front door. In the process, he shot and killed Rafael Cervantes. A jury found defendant guilty of first degree murder with a special circumstance that the murder was committed during a robbery or attempted robbery, and also found defendant guilty of being a convicted felon in possession of a firearm. In addition, the jury found true an allegation that defendant was convicted of robbery in 2007. 1
The trial court sentenced defendant to life without the possibility of parole for the special-circumstance murder and imposed but stayed a sentence for the firearm-possession count under Penal Code section 654.
Undesignated statutory references are to the Penal Code.
Defendant now contends (1) the trial judge erred by not recusing herself from a hearing on whether to exclude testimony of a witness, and defense counsel violated defendant's right to effective assistance of counsel by failing to object to the trial judge's participation; (2) the trial court abused its discretion under Evidence Code sections 1101, 1108, and 352 and violated defendant's due process rights when it admitted evidence of defendant's 2005 robbery for which he was convicted in 2007; (3) the trial court erred by denying defendant's motion to suppress statements he made in a police interview; (4) the trial court erred and violated defendant's constitutional rights when it sustained a prosecution objection to a question posed by defense counsel; (5) the trial court abused its discretion under Evidence Code section 352 and violated defendant's due process rights by excluding a written plea agreement from a federal prosecution against a witness in this case; (6) the trial court erred and violated his constitutional rights to present a defense and to a fair trial by denying his request to modify CALCRIM No. 226 [Witnesses]; (7) the trial court erred by instructing the jury it could find the special circumstance true based on attempted robbery; and (8) cumulative prejudice requires reversal.
We conclude (1) defendant forfeited consideration on appeal of his contention that the trial judge erred by not recusing herself from a hearing on whether to exclude the testimony of a witness, and defense counsel did not violate defendant's right to effective assistance of counsel by not objecting; (2) the trial court did not abuse its discretion or violate defendant's due process rights by admitting evidence of defendant's 2005 robbery; (3) the trial court did not err by denying defendant's motion to suppress his 2 statements; (4) the trial court did not err or violate defendant's constitutional rights when it sustained a prosecution objection to a question posed by defense counsel; (5) the trial court did not abuse its discretion by excluding a witness's written plea agreement from a federal prosecution; (6) the proposed pinpoint instruction was duplicative and the trial court did not abuse its discretion by refusing to give it or violate defendant's constitutional rights; (7) the trial court properly instructed the jury that the special circumstance finding could be based on attempted robbery; and (8) there was no cumulative prejudice.
We will affirm the judgment.
BACKGROUND
Defendant met William Goins in prison. Out of prison, they bought, sold, and used methamphetamine together. They also looked for opportunities to rob for methamphetamine. Eventually, Goins began staying at a house on Dewitt Court with several others, including Rafael Cervantes, whom the other occupants called Jefe because he was the "meth cooker" and was associated with a Mexican cartel. Another occupant was William R.
Goins informed defendant the occupants of the Dewitt Court residence would be good to rob because of an abundance of methamphetamine. Defendant decided to conduct a robbery at the residence.
On June 17, 2016, Goins sent defendant a coded message telling defendant there was a large amount of methamphetamine and marijuana in the Dewitt Court residence. The next morning, on June 18, 2016, defendant and Goins met and discussed the layout of the house, what was there, and who was there. Defendant asked Goins to be at the residence to make sure the front door was unlocked. Goins agreed. Later in the day, defendant texted Goins, asking him for a "drawing," meaning a diagram of the inside of the residence. Goins made a diagram and texted a picture of it to defendant. Goins also sent further details about where everyone was in the residence. 3
Defendant arrived at Dewitt Court in a car with two other men. Goins went outside to tell the men about the occupants of the residence. Goins returned to the residence, made sure the front door was unlocked, and went into a bedroom.
Defendant and the other men entered the house and yelled at everyone to get down. William R. was sitting on a couch when the men entered. He testified that defendant, pointing a gun, went down the hall toward Cervantes's bedroom. Defendant began shooting toward the bedroom but retreated back toward the front door. Defendant then turned and ran out the front door.
Cervantes was in his bedroom when defendant entered the residence. He was shot and killed at the door of his bedroom.
Defendant was charged, along with Goins, with special-circumstance murder. Goins pleaded guilty to robbery pursuant to a plea agreement, and defendant was tried by himself.
The jury found defendant guilty of first degree murder with a special circumstance that the murder was committed during a robbery or attempted robbery. The jury also found defendant guilty of being a convicted felon in possession of a firearm. Finally, the jury found true an allegation that defendant was convicted of robbery in 2007.
The trial court sentenced defendant to life without the possibility of parole for the special-circumstance murder and imposed but stayed a sentence for the firearm-possession count under section 654.
DISCUSSION
I
Defendant contends the trial judge erred by not recusing herself from a hearing on whether to exclude testimony of William Goins. He claims the recusal was necessary because the trial court was involved in convincing Goins to plead guilty. Recognizing that he did not object to the trial judge's presiding at the hearing, defendant asserts no 4 objection was necessary but, if an objection was necessary, defense counsel violated his right to effective assistance of counsel by failing to object.
A
The proceedings forming the basis of defendant's argument occurred after codefendant Goins and the prosecution reported to the trial judge the details of plea negotiations. The trial judge expressed surprise that Goins had not agreed to an offer of 12 years for robbery, with a prior serious felony conviction, because the original charges held the potential for a life sentence; the trial judge also expressed surprise that the prosecutor had further amended the offer to 10 years. The trial judge noted that Sacramento juries can be unpredictable in drug cases such as the case against Goins and it was possible that Goins might be convicted even if defendant was not convicted. The trial judge further noted the evidence against Goins was strong but new law pertaining to felony murder could have an effect on the case. In the trial judge's opinion, Goins had an excellent attorney. Goins said he did not want to stay in the county jail out of concern for his own safety and the safety of his family, and the trial judge said that it could be arranged for him to be sent to state prison soon after he testified in this case. The trial judge stressed that Goins would be required to testify truthfully in this case and allowed Goins to make a telephone call to his sister.
Goins pleaded guilty to robbery and admitted a prior serious felony conviction with a stipulated sentence of 10 years. In exchange, all other charges, including murder, were dismissed. And Goins agreed to testify truthfully in this case.
After Goins pleaded guilty, defendant requested a continuance, which the trial court granted. Defense counsel informed the trial court that he intended to cross-examine Goins concerning the terms of the plea agreement, and the trial court agreed that the evidence would be admissible.
When later asked about Goins's plea negotiations, counsel for Goins said that, in his "evaluation and judgment," Goins had decided to plead guilty before the trial judge 5 became involved in discussions about where Goins would serve time. In counsel's opinion, Goins made the decision to plead guilty on his own and did not wish to withdraw his plea. Counsel said Goins "wanted this agreement and he did not feel in the slightest bit coerced." The prosecutor and counsel for Goins agreed that Goins had already agreed to plead guilty before the trial judge took up the question of when defendant would be sent from county jail to state prison.
B
Defendant argues the trial judge should have recused herself, even though defendant did not raise the issue in the trial court.
Quoting the United States Supreme Court, the California Supreme Court wrote:"' "No procedural principle is more familiar to this Court than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." [Citation.]'" (People v. Saunders (1993) 5 Cal.4th 580, 590 (Saunders), quoting United States v. Olano (1993) 507 U.S. 725, 731 [123 L.Ed.2d 508, 517].)"' "An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method . . . . The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or waiver . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial."' [Citation.]' "The purpose of the general doctrine of waiver is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had . . . ."' [Citation.]" (Saunders, at pp. 589-590 italics omitted.) 6
Here, because defendant did not assert his instant recusal argument in the trial court, he cannot complain on appeal, even if his appellate argument is that constitutional rights were violated.
Defendant argues there was no forfeiture because defendant did not personally and expressly agree to have the trial judge hear his case. In support of this assertion, he cites People v. Williams (1997) 16 Cal.4th 635, 652 (Williams), but he reads too much into the language of that case. In Williams, the trial judge informed the parties that a witness in the case was related to the trial judge's son-in-law. After the notice, the defendant in that case "personally and expressly agreed to have [the trial judge] hear [the] case." (Ibid.) The California Supreme Court concluded: "[D]efendant may not now complain of error." (Ibid.) The court added: "Even if defendant had objected in the trial court, his statutory judicial disqualification claim is not properly before us . . . ." (Ibid., citing Code Civ. Proc., § 170.3, subd. (d).)
Williams is unhelpful to defendant. The California Supreme Court's observation that the defendant in Williams personally and expressly consented to the participation of the trial judge does not stand for the proposition that recusal need not be raised in the trial court to preserve the issue for appeal. The California Supreme Court did not consider forfeiture for failure to assert an argument, and "[a] case is not authority for propositions not considered and decided. [Citation.]" (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 67, fn. omitted.) Here, defendant failed to assert recusal in the trial court and thus forfeited appellate consideration of the issue.
Anticipating forfeiture, defendant argues in the alternative that his counsel was ineffective in failing to assert recusal in the trial court.
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] Unless a defendant establishes the contrary, we shall presume that 7 "counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy." [Citation.] If the record "sheds no light on why counsel acted or failed to act in the manner challenged," an appellate claim of ineffective assistance of counsel must be rejected "unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." [Citations.] If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966 (Lopez).)
Defendant's claim of ineffective assistance of counsel fails on both the deficient-performance and resulting-prejudice questions because there is no reasonable probability the trial judge would have, or should have, recused herself if defense counsel had objected to the trial judge's participation and no reasonable probability defendant would have obtained a more favorable result if defense counsel had objected. The record indicates the trial judge did not unduly influence Goins and there is no showing the trial judge's involvement in Goins's plea was inappropriate.
Defendant argues counsel's failure to assert recusal was prejudicial because it is impossible to tell whether subsequent trial court rulings against defendant were the result of animus that developed after defendant called the trial judge's conduct into question. But there is no evidence of animus in this record, and no showing of prejudice.
II
Defendant next contends the trial court abused its discretion under Evidence Code sections 1101, 1108, and 352 and violated his due process rights when it admitted evidence of defendant's 2005 robbery. 8
The challenged trial court ruling was made before trial. Nevertheless, in arguing this evidentiary issue on appeal, defendant relies, at least in part, on evidence admitted at trial. However, we review the correctness of trial court evidentiary rulings in light of what the trial court knew at the time of the ruling, not in light of later events. (People v. Hartsch (2010) 49 Cal.4th 472, 491.) We therefore disregard any arguments defendant bases on the evidence admitted after the trial court ruled.
The prosecution moved to admit evidence of a robbery defendant committed in 2005. According to the prosecution motion, defendant and an accomplice entered a residence where defendant produced a gun and demanded money from an occupant. Defendant grabbed the victim, pushed him onto the couch, and stole property and money from the victim. In opposition to the motion to admit the evidence, defendant added to those facts. He and his accomplice went to the residence, where the accomplice had been a frequent guest. They were invited in. Defendant produced a gun, forced the victim into a bathtub, and demanded to know where the victim's valuables were. The accomplice took a laptop computer, a wallet, and other valuables before defendant and the accomplice left the residence. The trial court determined that the 2005 robbery was admissible under Evidence Code section 1101, subdivision (b) to show motive and intent in this case. The trial court instructed the jury that it could consider the 2005 robbery only on the issue of "whether the defendant acted with intent to commit robbery in this case" and could not "conclude from this evidence that the defendant has a bad character or is disposed to commit crime."
Evidence Code section 1101, subdivision (a) prohibits admission of evidence of a person's character, including evidence of specific instances of uncharged misconduct, offered "to prove his or her conduct on a specified occasion." (People v. Ewoldt (1994) 7 Cal.4th 380, 393, fn. 1 (Ewoldt), superseded by statute on other grounds as stated in People v. Britt (2002) 104 Cal.App.4th 500, 505.) However, subdivision (b) of the same statute permits evidence of uncharged misconduct to establish facts other than the 9 person's disposition to commit similar acts, such as defendant's motive, intent, or the absence of mistake or accident. (Ewoldt, at p. 393.) The "least degree of similarity" is needed for admission under Evidence Code section 1101, subdivision (b), to prove intent. (Ewoldt, at p. 402.)
We review rulings under Evidence Code sections 1101 and 352 for abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1130.) "Trial courts enjoy' "broad discretion"' in deciding whether the probability of a substantial danger of prejudice substantially outweighs probative value. [Citations.] A trial court's exercise of discretion 'will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.'" (People v. Holford (2012) 203 Cal.App.4th 155, 167-168 (Holford).) Generally, evidence properly admitted under the Evidence Code does not violate a defendant's due process rights. (People v. Merriman (2014) 60 Cal.4th 1, 67 (Merriman).)
Here, the similarities between the 2005 robbery and the current crimes were sufficient to support admission of the 2005 robbery as evidence of defendant's intent in this case. In both situations, defendant entered a home by working with an accomplice who had access to the residence. Defendant entered a residence knowing there was something to steal, whether drugs or other valuables. In both situations, defendant used a gun, and an attempt was made to subdue the occupants of the residence.
From the evidence of the 2005 robbery and the similarities to this case, the jury in this case could infer that defendant entered the Dewitt Court residence with the intent to commit robbery. Therefore, the evidence was admissible under Evidence Code section 1101, subdivision (b). And this evidence was not so prejudicial that "its probative value [was] substantially outweighed by the probability that its admission [would] . . . create substantial danger of undue prejudice . . . ." (Evid. Code, § 352.) It was not of a type to evoke an emotional bias against defendant without probative value. (People v. 10 Elliott (2012) 53 Cal.4th 535, 577-578.) Furthermore, the trial court instructed the jury that this evidence was admissible only on the issue of defendant's intent in the present case.
Defendant's contention the trial court abused its discretion and violated his due process rights by admitting evidence of the 2005 robbery is without merit.
III
Defendant moved to suppress statements he made in an interview with Detective Thomas Shrum, and the trial court denied the motion. Defendant now contends the trial court erred by denying his motion to suppress. He claims he did not make a knowing and intelligent waiver of his rights under Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).)
"Miranda makes clear that in order for defendant's statements to be admissible against him, he must have knowingly and intelligently waived his rights to remain silent, and to the presence and assistance of counsel. [Citation.] [¶] It is further settled, however, that a suspect who desires to waive his Miranda rights and submit to interrogation by law enforcement authorities need not do so with any particular words or phrases. . . . [The California Supreme Court has] recognized that a valid waiver of Miranda rights may be express or implied. [Citations.] A suspect's expressed willingness to answer questions after acknowledging an understanding of his or her Miranda rights has itself been held sufficient to constitute an implied waiver of such rights. [Citations.] In contrast, an unambiguous request for counsel or a refusal to talk bars further questioning. [Citation.] [¶] Although there is a threshold presumption against finding a waiver of Miranda rights [citation], ultimately the question becomes whether the Miranda waiver was knowing and intelligent under the totality of the circumstances surrounding the interrogation. [Citations.]" (People v. Cruz (2008) 44 Cal.4th 636, 667-668.) 11
After defendant was arrested, Detective Shrum interviewed him. The detective first read defendant his Miranda rights. After the statement of each right, defendant responded: "Mm-hm." After reading the rights, the detective said, "Okay. Having all that in mind," and then questioned defendant concerning the facts. After making certain statements, defendant eventually said he wanted to talk to an attorney. In denying the motion to suppress, the trial court noted the following: that no magic words were required to constitute a waiver of Miranda rights, defendant indicated his understanding of each right by responding "mm-hm," defendant had numerous prior contacts with law enforcement, defendant was not hearing his Miranda rights for the first time, and defendant showed his understanding of his Miranda rights when he eventually told Detective Shrum he wanted to talk to a lawyer.
On appeal, defendant argues Detective Shrum did not ask him if he understood his Miranda rights and whether he was willing to waive them. Defendant adds that his responses of "mm-hm" were ambiguous at best and did not support a finding that defendant understood and waived his Miranda rights. Defendant further argues that the other circumstances cited by the trial court in denying the motion to suppress were insufficient because there was no showing that defendant had ever before been interrogated or advised of his rights and his later request to talk to a lawyer was not a demand.
Contrary to defendant's argument, the circumstances amounted to an implied waiver by defendant of his Miranda rights. Nothing about the circumstances of the interview indicated that defendant's responses of "mm-hm" after the reading of each right were anything other than an acknowledgement that defendant heard and understood the right. Additionally, defendant's numerous prior contacts with law enforcement supported a conclusion he knew and understood his Miranda rights, as cases using that circumstance to support a finding of a knowing and intelligent waiver did not mention whether those defendants had been interviewed before and had been apprised of their 12 rights. Even if there was no evidence, specifically, that defendant was interviewed and apprised of his rights on other occasions, it could be inferred that such prior contacts (and prosecution, we might add, as defendant was convicted of robbery) would serve as an education in basic procedural rights. (See People v. Debouver (2016) 1 Cal.App.5th 972, 978 [familiarity with criminal justice system supported finding defendant understood Miranda rights]; United States v. Vinton (8th Cir. 2011) 631 F.3d 476, 482 [history of interaction with the criminal justice system supported inference of familiarity with constitutional rights]; see also People v. Mosby (2004) 33 Cal.4th 353, 365 [prior criminal justice system contacts, including prosecution, evidence that defendant understood his constitutional rights].)
The totality of the circumstances supports a finding that defendant knowingly and intelligently waived his Miranda rights when he was interviewed by Detective Shrum. The trial court did not err by denying his motion to suppress his statements.
IV
Defendant further contends the trial court erred and violated his constitutional rights when it sustained a prosecution objection to a question posed by defense counsel.
One of defendant's arguments to the jury was that defendant was at the Dewitt Court residence only to buy methamphetamine when others came into the residence and executed a hit on Cervantes because he was a competing source of drugs. In closing argument, defense counsel said "bad guys burst into 208 Dewitt and they carried out a hit on a Mexican cartel drug methamphetamine cook."
Earlier in the trial, defense counsel questioned Andrea N., who was Cervantes's girlfriend and was in the bedroom when Cervantes was killed. She was uncooperative and claimed she did not remember much of what happened. Defense counsel asked Andrea N. whether she was trying to be honest when she spoke to a particular investigator. She responded, "Possibly. I don't remember." One of defense counsel's questions was, "You described the shooting as a hit; correct?" After Andrea N. 13 responded, "I don't remember," the prosecutor objected based on speculation, and the trial court sustained the objection.
" 'Lay opinion testimony is admissible where no particular scientific knowledge is required, or as "a matter of practical necessity when the matters . . . observed are too complex or too subtle to enable [the witness] accurately to convey them to court or jury in any other manner." [Citations.]' [Citation.]" (People v. Williams (1992) 3 Cal.App.4th 1326, 1332, disapproved on other grounds in People v. Randolph (1992) 3 Cal.App.4th 1326, 1334.) Lay opinion must be rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony. (Evid. Code, § 800; People v. Farnam (2002) 28 Cal.4th 107, 153.) Examples of admissible lay opinion testimony include whether a person was intoxicated (People v. Garcia (1972) 27 Cal.App.3d 639, 643) or angry (People v. Deacon (1953) 117 Cal.App.2d 206, 210) or driving at an excessive speed (Jordan v. Great Western Motorways (1931) 213 Cal. 606, 612).
" 'A lay witness may testify to an opinion if it is rationally based on the witness's perception and if it is helpful to a clear understanding of his testimony.' [Citations.] The decision whether to permit lay opinion rests in the sound discretion of the trial court. [Citation.]" (People v. Bradley (2012) 208 Cal.App.4th 64, 83.)
As does defendant, we will assume the trial court sustained the objection because whether, in Andrea N.'s opinion, the shooting of Cervantes was a "hit" was not a proper subject of Andrea N.'s lay opinion. We will also assume, as does defendant, that a "hit" is a premeditated murder by a member of a crime syndicate. With these assumptions, defendant claims Andrea N.'s "prior statement was . . . admissible as lay opinion evidence." He continues: "Given that [Andrea N.] was present in the room when [Cervantes] was shot, her witnessing the intruders drive up and soon enter the house and her close, intimate relationship with [Cervantes], her prior opinion to [the investigator] that the shooting was a hit was rationally based on her perception as a witness. It was 14 also helpful to a clear understanding of her testimony since it would have clearly defined the scenario she had described as a planned murder rather than a robbery or attempted robbery. (Evid. Code, §§ 800, 805.)"
This argument is unpersuasive. There was nothing helpful to the jury about Andrea N.'s possible perception that the shooting was a hit. The circumstances of the shooting were presented to the jury, so the jury could come to its own conclusion about whether the shooting was part of an attempted robbery or was simply a killing by a member of an opposing crime syndicate. Andrea N.'s presence at the shooting and her intimate relationship with Cervantes did not provide the jury with additional helpful information on which to base its verdict. Therefore, excluding the evidence was within the sound discretion of the trial court.
Defendant also contends exclusion of the evidence violated his constitutional rights to confront and cross-examine witnesses and to present a defense. However, proper exclusion of evidence under the Evidence Code generally does not violate a defendant's constitutional rights to confront and cross-examine witnesses and to present a defense. (People v. Hall (1986) 41 Cal.3d 826, 834 (Hall).) The answer to defense counsel's question about whether Andrea N. had described the shooting as a hit was properly excluded; her opinion of whether the shooting was a hit was improper lay opinion.
Defendant also argues that, if the issue was forfeited, defense counsel provided ineffective assistance by failing to preserve the issue for consideration on appeal. Because we have addressed the merits without finding forfeiture, we need not consider this argument.
V
Defendant contends the trial court abused its discretion under Evidence Code section 352 and violated his due process rights by excluding evidence of a written plea agreement previously entered into by a witness in this case. 15
During cross-examination of William R., who was in the Dewitt Court residence when Cervantes was shot and killed, defense counsel asked William questions about a plea agreement William entered into in December 2016 with respect to federal drug charges in Florida. Cervantes was William's source for drugs in California. During that questioning, defense counsel showed William a copy of the federal plea agreement. William faced a mandatory minimum term of 10 years and a maximum of life. However, William could get a shorter term if he provided substantial assistance against his codefendants in the Florida case, which he did by testifying in their cases. William did not read the plea agreement before signing it, even though he initialed each page indicating he had read it, but he signed the agreement on the advice of his counsel. William testified in this case that not all of the facts in the federal plea agreement were accurate. He told his attorney about the inaccuracies, but the attorney advised him to sign it anyway. William believed the inaccuracies were minor. Also on the advice of counsel, William told the federal judge the plea agreement was true and accurate, even though it was not completely accurate. Based on William's substantial assistance in the federal case in Florida, William was sentenced to five years, three months instead of 10 years.
In the trial court in this case, defense counsel moved to admit the federal plea agreement (the document) into evidence. Noting the substance of William R.'s testimony concerning inaccuracies in the agreement, defense counsel argued that William "put enough of the plea agreement in issue during his testimony in this case that it seems fair to have the actual plea agreement accessible to the jury if they feel it's necessary for them to check to judge his credibility and believability." The trial court excluded the written plea agreement under Evidence Code section 352, reasoning that it was collateral to this case and that defense counsel had already provided effective cross-examination on the plea agreement and the related circumstances. Thus, the trial court concluded the written plea agreement had "absolutely nothing to do with this case" and its admission would be 16 cumulative and confusing. Also, the written plea agreement was substantially more prejudicial than probative.
Defendant now contends exclusion of the written plea agreement was an abuse of discretion and violation of his due process rights. He bases this contention on a statement that the trial court made after excluding the written plea agreement. The trial court said that William R. would not get any benefit in his federal case by testifying in this case. Defendant asserts on appeal that, under rule 35(b)(1) of the Federal Rules of Criminal Procedure, the federal government, up to one year after sentencing, could make a motion to further reduce William's federal sentence because he provided substantial assistance in this case. In fact, the prosecutor asked William if he knew that he could apply to the U.S. Attorney's Office to petition the federal court under rule 35 to further reduce his sentence. William responded, "I don't know of that, but I'm assuming, yes." According to defendant's appellate argument, the trial court's exclusion of the written plea agreement was an abuse of discretion because the trial court did not believe William's federal case had anything to do with this case, when in reality William's cooperation in this case could have been the basis for a federal government motion to further reduce William's federal sentence.
This tenuous relationship between this case and William R.'s federal case as a result of a possible application of rule 35 of the Federal Rules of Criminal Procedure was not cited by defendant in the trial court as a basis for admitting the written plea agreement. (Evid. Code, § 354.) In any event, it remains true that admission of the written plea agreement would have added nothing of substance to the jury's understanding of the circumstances of William's plea in the federal court. As the trial court noted, defense counsel thoroughly cross-examined William concerning the plea agreement and there is no indication in the record that admitting the actual document would have materially added to the jury's evaluation of William's testimony. Thus, because the plea agreement had little-to-no probative value and its admission would have 17 consumed time and possibly confused the jury, the trial court did not abuse its discretion in excluding the document. (Evid. Code, § 352; see also Holford, supra, 203 Cal.App.4th at pp. 167-168 [trial court's broad discretion under Evid. Code, § 352].) Moreover, the proper exclusion of the evidence did not violate defendant's due process rights. (Merriman, supra, 60 Cal.4th at p. 67; Hall, supra, 41 Cal.3d at p. 834.)
VI
In addition, defendant contends the trial court erred and violated his constitutional rights to present a defense and to a fair trial by denying his request to modify CALCRIM No. 226 [Witnesses].
CALCRIM No. 226, as used by the trial court in this case, instructs the jury concerning factors to consider in evaluating a witness's testimony, including: "Did the witness admit to being untruthful?" and "Has the witness engaged in other conduct that reflects on his or her believability?" Before the trial court instructed the jury, however, defendant requested that the trial court add the following factor: "Did the witness admit to committing perjury?" In the alternative, defendant asked the trial court to have the jury consider whether the witness lied under oath. This request was prompted by William R.'s testimony that he signed the written plea agreement and told the federal judge his written plea agreement was true and accurate even though it was not completely accurate.
The trial court denied defendant's request, stating: "I think [CALCRIM No.] 226 covers it in two different ways. Number one, did the witness admit to being untruthful. And I think in [William R.]'s case, it is a little bit complicated because he was proceeding based on what his attorney representing him was giving him advice, so I think it's . . . a little bit dicey. I am certainly going to allow you to make the argument, [defense counsel], because I think you have laid enough foundation to do so, but there are several ways that [CALCRIM No.] 226 covers this issue: 'Did the witness admit to being untruthful?' which I will be instructing on. 'Has the witness engaged in other conduct 18 that reflects on his or her believability?' I also think that is covered. [¶] So I think based on that and the fact that I do not choose to have a trial within a trial, I'm not going to give your proposed language. I think it is well covered in [CALCRIM No.] 226."
A defendant is entitled, on request, to an instruction pinpointing a defense theory. (People v. Wharton (1991) 53 Cal.3d 522, 570.) A court, however, is not required to give a pinpoint instruction that is duplicative of other instructions on witness credibility, even if the other instructions are not precisely the same as the requested instruction. (People v. Harrison (2005) 35 Cal.4th 208, 253 (Harrison).) Here, the trial court denied the requested pinpoint instruction because it was duplicative. We review denials of such requests for abuse of discretion. (See People v. Mora & Rangel (2018) 5 Cal.5th 442, 497 [applying abuse of discretion standard].)
Defendant argues his proposed pinpoint instruction to the jury to consider whether William R. committed perjury or lied under oath was not covered by the two factors included in CALCRIM No. 226 and cited by the trial court concerning admitting to having been untruthful and engaging in prior conduct reflecting on his believability. He claims telling untruths in our contemporary culture no longer carries the stigma it once did, and it has become routine. He nevertheless claims that lying under oath or committing perjury is not acceptable.
We need not opine on defendant's characterization of contemporary culture because, in any event, the argument does not establish that the trial court abused its discretion. The fact that a witness lied in the past is relevant to whether that witness is lying now, as noted in the instruction. As the trial court ruled, the standard instruction included the factors of admitting to being untruthful and engaging in prior conduct reflecting on the witness's believability, and those factors were sufficient to support defendant's argument that the jury should not believe William R. because he committed perjury or lied under oath in his federal prosecution. The proposed pinpoint instruction 19 was therefore duplicative, and the trial court did not abuse its discretion by refusing to give it.
As the trial court properly instructed the jury, it did not violate defendant's constitutional rights to present a defense or to a fair trial. (Harrison, supra, 35 Cal.4th at p. 253.)
VII
Defendant contends the trial court erred by instructing the jury it could find true the special circumstance allegation that the murder was committed during a robbery or attempted robbery based on attempted robbery. He also contends the prosecutor committed misconduct by arguing that the special circumstance could be based on attempted robbery and that defense counsel violated his right to effective assistance of counsel by not objecting based on prosecutorial misconduct.
In the operative amended information, the People alleged defendant murdered Cervantes while "engaged in the commission of the crime of Robbery, within the meaning of Penal Code section 190.2(a)(17)." Section 190.2, subdivision (a)(17) lists the crimes, including robbery, constituting special circumstances. It provides: "The murder was committed while the defendant was engaged in, or was an accomplice in, the commission of, attempted commission of, or the immediate flight after committing, or attempting to commit, the following felonies." (§ 190.2, subd. (a)(17), italics added.) Consistent with section 190.2, subdivision (a)(17), the trial court, over defendant's objection, instructed the jury that it could find true the special circumstance if it found defendant committed the murder while defendant was engaged in robbery or attempted robbery.
In People v. Williams (2013) 56 Cal.4th 630, the California Supreme Court held, in a case with the same wording about robbery as this case in the information, that reference to "section 190.2, subdivision (a)(17)" in the information was sufficient to put the defendant on notice that the special circumstance finding could be based on robbery 20 or attempted robbery. (Id. at pp. 680, 681.) After so holding, the California Supreme Court continued: "Furthermore, even assuming for the sake of argument that the information provided inadequate notice on this point, defendant received notice of the facts underlying the attempted robbery theory at his preliminary hearing, which we have stated generally provides adequate notice of the prosecutor's theory. [Citation.]" (Id. at p. 681.)
Defendant did not cite People v. Williams, supra, 56 Cal.4th 630 in his opening brief. After the Attorney General relied on Williams in his respondent's brief, defendant argued in his reply brief that the holding is "less than an absolute rule" and "less than firm" because the California Supreme Court also wrote that" 'even assuming for the sake of argument that the information provided inadequate notice on this point, '" defendant in that case was on notice from the prosecution's statement in the preliminary hearing. We decline defendant's invitation to conclude that the holding in Williams is less than firm. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Defendant's challenge to the trial court's instruction lacks merit.
Defendant further suggests the prosecutor committed prosecutorial misconduct by laying a trap for defense counsel when the prosecutor did not include attempted robbery in the language of the amended information. This argument is without merit because the law allows such pleading and argument. Citation to section 190.2, subdivision (a)(17) in the information puts a defendant on notice that the special circumstance finding may be based on an attempt to commit the listed crimes, including robbery. (People v. Williams, supra, 56 Cal.4th at p. 681.) Moreover, defendant's trial counsel did not provide ineffective assistance by not objecting to the prosecutor's conduct; the objection would have been fruitless. (Lopez, supra, 42 Cal.4th at p. 966.)
VIII
Defendant contends we must reverse based on the cumulative prejudice caused by the asserted errors. Having found no error, we also reject this contention. 21
DISPOSITION
The judgment is affirmed.
We concur: DUARTE, J., KRAUSE, J. 22