Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco City & County Super. Ct. Nos. 184929, 195209
SIMONS, Acting P.J.
On November 4, 2005, a San Francisco jury found appellant Philip Leo Sands (Sands) guilty of aggravated assault (Pen. Code, § 245, subd. (a)(1)), battery with serious bodily injury (Pen. Code, § 243, subd. (d)), murder with a special circumstance allegation that the victim was a witness to a crime (Pen. Code, §§ 187, 190.2, subd. (a)(10)), assault with a machine gun (Pen. Code, § 245, subd. (a)(3)), discharge of a firearm at an occupied motor vehicle (Pen. Code, § 246), and transporting a machine gun (Pen. Code, § 12220). On appeal, Sands raises numerous issues, each of which we reject.
The jury also found true a number of other special circumstance allegations that had been made in the amended information.
FACTUAL AND PROCEDURAL BACKGROUND
In an amended information filed October 11, 2005, the San Francisco District Attorney charged Sands with crimes arising from two separate incidents.
The September 14, 2001 Stabbing of Robin Clarke
On September 14, 2001, Robin Clarke (Clarke) and his housemate, Sean Fernandez (Fernandez), were headed to The Curve bar in San Francisco. As they were crossing the street, a member of another group of people crossing the street “rammed” Fernandez and Clarke, causing them to stumble. Clarke then ran across the street and tackled the offender, who was later identified as Robert Ramirez. Robert Ramirez’s group surrounded Clarke, and one member of the group struck him and another member hit him across the head. Clarke turned his attention back to Robert Ramirez when he saw “this other figure” with “his hands coming in as if to strike” Clarke. This other person hit Clarke in the stomach, and Clarke bent over. Clarke described the person who hit him in the stomach as a tall, slender, white male, approximately two inches taller than Clarke, with short, dark hair. Robert Ramirez realized that most of his friends had driven off, and he ran to a sport utility vehicle. Clarke grabbed his cell phone, dialed 911, and read out the license plate numbers of the departing cars. He positioned himself in front of the SUV and attempted to keep it from driving away. Robert Ramirez got out of the car and chased Clarke and Fernandez away.
Within a short time, Clarke began to have trouble breathing. The police arrived at the scene, and Clarke lay down on the ground. Fernandez went over to Clarke, unzipped the latter’s jacket, and realized that Clarke was bleeding. Paramedics arrived and took Clarke to San Francisco General Hospital. At the hospital, Dr. William Schecter performed surgery on Clarke to repair a stab wound to the left lobe of Clarke’s liver and two wounds to Clarke’s stomach. At trial, Dr. Schecter stated his opinion that the injuries Clarke had sustained were life-threatening.
While in the hospital following surgery, Clarke identified Robert Ramirez’s photograph from a photo spread shown to him by the police and stated Robert Ramirez was the person who initially had hit him and Fernandez. A few days later, the police returned with a second photo spread, and Clarke identified Sands as the person who had stabbed him. Testifying at trial, Clarke again identified Sands as the stabber.
In addition to Clarke, the police interviewed a number of witnesses to the stabbing incident, including Mark Nikolov (Nikolov), Bobby Gomez (Gomez), Michael Debergerac (Debergerac), and Robert Ramirez. After their investigation, the police obtained a warrant for Sands’s arrest.
Nikolov testified that a few days or a week after the altercation with Clarke, Sands phoned him. Nikolov recalled that the substance of Sands’s message was “[b]asically, not to say anything about what happened, because [Sands] had friends on the streets and that he would probably be looking for me if I did.”
Gomez, who had known Sands and Robert Ramirez for about 20 years, also witnessed the altercation on September 14, 2001. A couple of days after the incident, Gomez was with Sands and Robert Ramirez. Gomez asked Sands, “why would [you] do that? Why would [you] stab the guy?” Sands did not deny the stabbing and said only, “I just got to do what I got to do.”
Michael Hurley (Hurley) had known Sands and Robert Ramirez his entire life. Hurley testified that before the stabbing of Clarke, Robert Ramirez and Sands had been friends. Hurley said that after the stabbing, Sands and Robert Ramirez “kind of stopped keeping in touch with each other, stopped talking to each other.” Hurley testified that Sands called Robert Ramirez a “rat.” In early July 2003, Hurley spoke with Sands, who told him that “he does too much for his friends; he backed Robert up; and now he’s going to prison for it.”
Michael Ramirez testified that his brother, Robert Ramirez, and Sands had been friends but at some point had stopped hanging out together. About two months after the stabbing incident, Sands visited Michael Ramirez and Robert Ramirez. Sands appeared “stressed out” and repeatedly said, “Someone snitched. Someone snitched.” Sands asked Robert Ramirez, “What did you say? What did you say?” Robert Ramirez replied, “I didn’t say nothing.” Sands continued to pace back and forth, asking Robert Ramirez questions.
Debergerac has known Sands since high school, and he described their relationship as close. Debergerac testified that on September 14, 2001, after visiting The Curve bar with Sands and Robert Ramirez, he saw Robert Ramirez “shove[] his arms in between two guys, tr[ying] to knock them over.” A fight ensued, and Debergerac saw Robert Ramirez, Gomez, and Sands, each “hit somebody.” Debergerac recalled seeing Sands hit someone in the chest once. Sands then jumped into his car and left the scene. Shortly thereafter, Debergerac spoke to Sands on the phone and asked Sands “if he had stabbed the guy.” Sands replied that “[t]here was a fight, and I had to get out of there.” Although Sands did not admit to having committed the stabbing, he did not deny it, either.
At Sands’s trial, San Francisco Superior Court clerk supervisor Ernest Arndt identified the docket in case No. 2008005; he testified that the named defendant in the case was Philip Sands, and that Sands was charged with the assault on Clarke. Sands posted the $100,000 bail in that case and remained out on bail in the pending case in August 2003. The court records indicated that Robert Ramirez was ordered to return to court to testify as a witness in the assault case.
The July 12, 2003 Murder of Robert Ramirez
Ryan Crowley (Crowley) is Robert Ramirez’s cousin and has known Sands since childhood. Crowley testified Sands and Robert Ramirez were once best friends but he noticed some tension between his cousin and Sands in May 2003. On the evening of July 11, 2003, Crowley went to the Gordon Biersch Brewery with his cousin Michael Ramirez and Brendan Burke (Burke). The three men were later dropped off at La Rocca’s Corner, a bar in North Beach. Crowley subsequently walked back to the Gordon Biersch Brewery to get his car and then returned to La Rocca’s Corner to pick up Burke around 1:30 or 2:00 a.m. At La Rocca’s Corner, Crowley saw Burke and Robert Ramirez and told them to get into his car. Crowley testified that he was driving his grandfather’s 1988 Oldsmobile. After visiting another club, Crowley took the freeway and drove toward Daly City. Crowley testified that Burke was “practically incapacitated” from drinking and was “really hammered.” Burke passed out in the car on the way to Daly City. While on the freeway, Crowley’s car ran out of gas. It came to a stop just short of the Ocean Avenue exit. Crowley and Robert Ramirez then pushed the car onto the Ocean Avenue off ramp and parked it on the right side of the road. Crowley left to buy gasoline, while Robert Ramirez stayed with Burke. When Crowley returned with the gasoline, Robert Ramirez told him that Debergerac’s vehicle had driven by while Crowley was away and that Sands was with Debergerac. Crowley noticed that Robert Ramirez’s attitude had changed and that it seemed that “he wanted to get out of there.” Robert Ramirez put the gas in the tank, and the men got back into the car and proceeded westbound on the Ocean Avenue exit. The car was “kind of chugging” and Crowley thought it was “going to die” because it did not have enough gas. As Crowley proceeded along Ocean Avenue, he drove through a red light and was stopped by a California Highway Patrol (CHP) officer. The officer administered sobriety tests and eventually arrested Crowley for drunken driving. Robert Ramirez was given the keys to Crowley’s Oldsmobile and instructed to drive the car into the nearby City College parking lot. The CHP officers told Robert Ramirez not to drive the car away, and at 3:33 a.m. the officers left and took Crowley to jail.
That same evening, Debergerac left his job at a nightclub around 12:30 a.m. and went with a group of friends to another bar for a drink. Later, while driving a coworker home, Debergerac saw Sands’s car in the Tenderloin area, and he and Sands spoke briefly. Debergerac and two friends then left and made a stop for food. After that, Debergerac dropped off one of his friends and he proceeded to drive the other home, taking Interstate 280. Debergerac took the Ocean Avenue exit and, while on the off ramp, he saw Robert Ramirez standing next to a car pulled over on the shoulder. Debergerac called Sands on his cell phone and reported that he had seen “Rob on the freeway stuck” on the Ocean Avenue off ramp. Debergerac then went home.
Michael Ramirez had gone home after La Rocca’s Corner closed for the evening. Before leaving, he had seen his brother Robert Ramirez leave the bar with Crowley and Burke. After arriving at home, Michael Ramirez received a call from his brother asking for a ride home from the City College campus. Michael Ramirez, Nikolov, and Maria Anderson then left in Anderson’s car to pick up Robert Ramirez. After arriving at the City College parking lot, Michael Ramirez noticed the Oldsmobile parked there. Michael Ramirez got out of Anderson’s car and saw that the window on the Oldsmobile’s driver’s side was broken. He opened the door and noticed that there was “blood everywhere.”
At 3:48 a.m., the San Francisco Emergency Communications Department received a 911 call from a person at the City College parking lot reporting an emergency. The police responded to the scene, and officers recovered spent bullet casings from the driver’s side of the Oldsmobile. Thirty bullet casings were on the ground, and three expended bullets were recovered from the inside of the car. The police later retrieved five bullets from the front passenger compartment door.
An autopsy performed on Robert Ramirez revealed 22 gunshot wounds to the body and a total of 33 gunshot injuries. According to the medical examiner, the majority of the gunshot wounds were to the left side of the face, and to the right hand and the forearm. There were also red abrasions to the left side of the face that were consistent with glass fragments hitting the skin. Robert Ramirez’s blood-alcohol level was 0.18 percent. There was also evidence of cocaine intoxication. The medical examiner opined that Robert Ramirez’s death was caused by multiple gunshot wounds and further opined that the manner of death was homicide.
Evidence Regarding the Possible Murder Weapon
A Bureau of Alcohol, Tobacco, Firearms, and Explosives firearms examiner examined the 30 bullet casings recovered from the scene. He found that all of the casings were fired from the same weapon. The examiner also found that three bullets recovered from the scene were .380 auto caliber and all were fired from the same weapon. A MAC-10 or MAC-11 was among the weapons that could have fired the casings and the three recovered bullets.
A number of witnesses testified they had seen an unusual “Uzi-type” gun in Sands’s bedroom. Nikolov testified that about eight years before Robert Ramirez’s murder, he had visited Sands’s home and had seen a gun that he described as an “Uzi or machine gun of some sort” in a case in Sands’s bedroom. At trial, Nikolov was shown a photograph of Sands (the People’s exhibit 6) that depicted Sands holding a weapon that looked like the one Nikolov had seen in Sands’s bedroom. Similarly, Hurley testified that about six years prior to Sands’s trial, he had seen an “Uzi-type weapon” in Sands’s bedroom. Shown the People’s exhibit 6, Hurley identified Sands as the person in the photograph, wearing a mask and holding a gun that looked like the one Hurley had seen in Sands’s bedroom.
Cell Phone Records
At trial, a Sprint/Nextel employee identified records for cell phones with the following numbers: (415) 716-3282, for which Sands was the subscriber, and (415) 716-6734, for which Debergerac was the subscriber. A Sprint/Nextel engineer was qualified as an expert in the field of designing and maintaining wireless networks for his employer. Using their respective cell phone records, the engineer plotted a map showing the “footprints” of the different cell sites triggered by Sands’s and Debergerac’s cell phones on the night of the murder. The engineer testified that the area of Ocean Avenue and Howth Street, near Interstate 280—the location of the City College parking lot—was serviced by the Glen Park cell site.
The cell phone records showed that Debergerac called Sands from within the Glen Park cell site a number of times just prior to 3:00 a.m. on July 12, 2003. Sands’s cell phone triggered the Skyline cell site at 2:57 a.m. and triggered the same cell site one minute later. At 3:00 a.m., Sands’s cell phone triggered the Skyline cell site and placed a call to Debergerac’s cell phone. Debergerac’s cell phone, in turn, triggered the Stonestown cell site. Approximately one minute later, Debergerac’s cell phone triggered the West Portal cell site and called Sands’s cell phone. At 3:02 a.m., Sands’s cell phone placed a call to Debergerac’s phone that triggered the South San Francisco cell site, while Debergerac’s phone triggered the Stonestown cell site. At 3:10 a.m., Sands’s cell phone triggered a South Sunset cell site. At 3:23 a.m., Sands’s cell phone triggered the Glen Park cell site and called Debergerac’s phone, which triggered the Kezar cell site. At 3:37 a.m., Sands’s cell phone again triggered the Glen Park cell site, which covered the scene of the crime. The records provided further information regarding certain other calls made on Sands’s cell phone later that day.
Recovery and Testing of the Murder Weapon
Sands’s brother-in-law, Daniel DeVera, testified that during the first week of August 2003, Sands came to his home with a “green bag, pouch” and asked DeVera to “keep it” for him. When DeVera asked what it was, Sands told DeVera that it was a gun. DeVera placed the gun and bag in a closet. He testified that the gun did not look like a “regular” handgun in that it was “square, odd-shaped, [and] in pieces.”
In October 2003, after Sands’s arrest, DeVera received a voicemail message from Sands asking him to “just hold onto it for a while.” The police later asked DeVera if he was holding guns. He answered yes, and gave the police his own gun and his father-in-law’s guns but did not turn over the gun he was keeping for Sands. The police asked DeVera whether Sands had given him a gun, but he said no. The police later arrested DeVera, but he continued to deny having Sands’s gun. On October 15, 2003, DeVera consented to a search of his home, during which he admitted that the gun was located nearby at another house he owned. He led the police to the other house, where they seized the gun. At trial, DeVera was shown the People’s exhibit 6, a photo of Sands brandishing two guns, and he testified that the gun in Sands’s left hand resembled the one that Sands had asked him to hold.
The weapon seized from DeVera was a Cobray model SGM11-2A .380-caliber firearm with three magazines. An expert in the field of firearm and toolmark identification examined the firearm and its three magazines. It was missing its barrel, and the missing barrel made it difficult to determine whether the slugs recovered at the crime scene came from the weapon. Tests indicated that the weapon would only fire in full automatic mode. The firearms expert opined that each of the three magazines could individually hold from 30 to 34 .380-caliber rounds. After examining the 30 bullet casings recovered from the scene of Robert Ramirez’s murder, the expert further opined that all 30 casings were discharged by the same weapon, the Cobray model SGM11-2A .380-caliber firearm. Shown the People’s exhibit 6, the firearms expert testified that the weapon held in Sands’s left hand was consistent with a Cobray-type M10 or M11 firearm.
Intercepted Telephone Conversations
San Francisco Police Inspector Maffei (Maffei) interviewed Crowley and obtained Debergerac’s name. Maffei spoke with Debergerac and searched his home and car but found no weapons or ammunition. The same week, inspectors obtained search warrants for pertinent cell phone records.
In October 2003, the San Francisco District Attorney obtained a court order allowing a 30-day interception of communications to and from a number of “target telephones,” including Sands’s home and cell phones. Monitoring of the calls began on October 6, 2003. An October 7, 2003 telephone call was taped and played for the jury. The taped call was a message from Sands asking “Daniel” to “hold on to that . . . for me for a while for safekeeping.” On October 8, 2003, the police executed search warrants for Sands’s home, Debergerac’s home, the home of Sands’s girlfriend, Ra Roeurth, and two of Sands’s cars. An October 8, 2003 telephone conversation between Sands and Debergerac in which the two men discussed the police searches was played for the jury. In an October 9, 2003 call, Sands told Debergerac “don’t worry about money, don’t worry about none of that s**t, just let me know how much it’s going to cost, all right?” In an October 14, 2003 call that was played for the jury, Sands urged Debergerac to “take the fifth” before the grand jury.
The Trial
Sands was charged in an amended information filed on October 11, 2005. A jury trial began the following day. At the conclusion of trial, the jury found Sands guilty as charged. On December 20, 2005, Sands filed a motion for new trial, which the trial court denied on December 30, 2005. The trial court sentenced Sands to imprisonment for 34 years to life without the possibility of parole, plus an additional 25 years to life.
Sands filed a timely appeal on January 5, 2006.
DISCUSSION
We address Sands’s challenges to his convictions below in the order raised in his brief.
I. Prosecutorial Misconduct
A. General Standards
“Prosecutorial misconduct is reversible under the federal Constitution when it ‘infects the trial with such unfairness as to make the conviction a denial of due process.’ [Citations.] ‘Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under [California] law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1124.) To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must generally do three things: (1) make a timely objection, (2) make known the basis of the objection, and (3) request that the trial court admonish the jury. (People v. Brown (2003) 31 Cal.4th 518, 553 (Brown).) “Failure to make a specific and timely objection and request that the jury be admonished forfeits the issue for appeal unless such an objection would have been futile. [Citation.]” (Ibid.) Where a defendant complains of prosecutorial misconduct for the first time on appeal, the initial question to be decided is whether a timely objection and admonition to the jury would have cured the harm. (People v. Green (1980) 27 Cal.3d 1, 34.)
Where the claim of prosecutorial misconduct focuses on comments made by the prosecutor before the jury, the defendant must show that “ ‘there is a reasonable likelihood that the jury construed . . . the complained-of remarks in an objectionable fashion.’ ” (People v. Smithey (1999) 20 Cal.4th 936, 960.) In examining this question, we will not lightly infer that the jury drew the most damaging rather than the least damaging meaning from the prosecutor’s statements. (Brown, supra, 31 Cal.4th at pp. 553-554.)
B. Sands Has Forfeited Many of His Claims of Prosecutorial Misconduct Because His Trial Counsel Failed to Make Timely, Contemporaneous Objections
Sands’s trial counsel failed to make a contemporaneous objection to many of the prosecutor’s allegedly improper remarks, forfeiting these issues on appeal. (Brown, supra, 31 Cal.4th at p. 553.) Seeking to avoid forfeiture, Sands claims that the case law contains no requirement of a “ ‘contemporaneous’ objection” and that a “ ‘timely’ objection” is all that is required. We disagree. In People v. Bemore (2000) 22 Cal.4th 809, the defendant complained about certain remarks made by the prosecutor in closing argument. (Id. at pp. 844-845.) There, as in this case, the closing argument had taken place in the afternoon, and defense counsel had raised no objection to the prosecutor’s comments at that time. (Id. at pp. 845-846.) Instead, defense counsel waited until the next day to object on the grounds of prosecutorial misconduct. (Id. at p. 846.) The Supreme Court held that the issue had been forfeited on appeal because the defendant’s arguments had not been preserved “by timely, contemporaneous objection in the trial court.” (Id. at pp. 845-846, italics added.) Defense counsel’s failure to object meant that “the trial court had no opportunity to consider the objection and give appropriate admonitions when the alleged misconduct first occurred, or to prevent additional remarks of a similar nature from being made.” (Id. at p. 846.)
C. Alleged Disparagement of Defense Counsel
Sands argues that the prosecutor was guilty of misconduct when she stated in closing argument: “Defense counsel is a compelling speaker. All the more compelling when he’s able to ignore evidence, when he’s able to fabricate evidence.” (Italics added.) Sands’s trial counsel made no objection to this remark when it was made, waiting until the next day to raise the issue with the trial judge. He argued that the prosecutor’s comment was a personal attack on him and amounted to an accusation that he was fabricating evidence. In response, the prosecutor contended that she was merely commenting on remarks to which she had objected during defense counsel’s closing argument concerning gun shot residue testing. She argued that there had been no expert testimony regarding gun shot residue and defense counsel’s argument was based on matters that were not in evidence.
We note first that defense counsel’s next-day objection to this comment was untimely. (Bemore, supra, 22 Cal.4th at pp. 845-846.) And even if we were to assume that the comment constituted misconduct, we are persuaded that an appropriate admonition would have cured any harm that may have resulted. (See, e.g., People v. Jones (1997) 15 Cal.4th 119, 168 [prosecutor’s accusation that defense counsel was lying cured by admonition]; People v. Gionis (1995) 9 Cal.4th 1196, 1216-1217 [prosecutor’s comment that it was defense counsel’s “duty to lie, conceal and distort everything and slander everybody” cured by admonition].) Because a timely objection and admonition would have cured any harm that might have resulted from this remark, any claim based upon it may not now be raised on appeal. (People v. Stewart (2004) 33 Cal.4th 425, 502-503.) Moreover, we seriously doubt the jury understood the comment as anything other than “ ‘words spoken by an advocate in an attempt to persuade.’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1204; see also id. at p. 1203 [prosecutor’s references to defense counsel as “ ‘deceiv[ing], ‘unfair,’ ‘misleading,’ or ‘tricky’ ” unlikely to be understood as personal attacks on defense counsel’s integrity].) Thus, even if the alleged error had been preserved for appeal, we would conclude that no misconduct occurred.
Sands next complains that during her closing argument, the prosecutor improperly argued defense counsel had kept certain facts from the jury. His argument is based on the following passage from the prosecutor’s closing:
“He brings up the fact that [Sands] was wearing good clothes on the night of the stabbing. To what end? Everyone was wearing good clothes. [C]larke said that everybody was dressed up. There was still a fight. There was still a stabbing. Counsel again harped upon ‘let’s not be rowdy,’ that he claims that his client claims to have said at the outset of the evening. What’s interesting is, clearly, until [Sands] spoke, what he had to say was unknown. Arguably, his attorney would know.
“Why weren’t Nikolov and Gomez and Debergerac asked about this statement? It’s absurd. Wouldn’t you want to corroborate it? Wouldn’t you want somebody to agree that it had been said? But, no, it was a calculated decision not to ask that.
“Defense counsel says there’s no evidence that [Sands] carries a knife. That’s true, there was no evidence presented. Sometimes evidence does not come in at trial.
“He turns to Robert Ramirez and says Robert Ramirez charged like a bull; it was an unprovoked attack and knocked the victim to the ground. And then counsel tells you that you have no idea what it is that provoked Robert Ramirez to do this.
“You’re right, you don’t. You know why? Because defense counsel objected to [C]larke saying it. He doesn’t get the benefit of implying things that he kept you from hearing. That’s not fair. That’s not justice.
“Yes, there was a fight. This was a melee, for a moment or two. And then it stopped, and people were facing off. It was after the fight that [Clarke] gets punched. It was after the fight that [Clarke] gets stabbed. It’s when it is ending that he gets knifed.” (Italics added.)
Again Sands’s trial counsel made no contemporaneous objection and waited until the next day to raise the matter with the trial judge. As a result, the issue has been forfeited for purposes of appeal. (Bemore, supra, 22 Cal.4th at pp. 845-846.) In addition, even if we were to conclude that the prosecutor’s remarks constituted misconduct, any error was harmless. (See People v. Hardy (1992) 2 Cal.4th 86, 172-173 [agreeing that prosecutor improperly “suggest[ed] that he was not able to present all the evidence that existed” but finding error harmless].) We note further that the trial court “with firsthand knowledge of the circumstances under which the comment was made” (People v. Milner (1988) 45 Cal.3d 227, 245), expressly found that an admonition was not required. In any event, the trial court read to the jury CALJIC No. 1.02 that statements made by attorneys are not evidence and stated that the court would “add to that ‘statements made by counsel during trial and closing arguments are not evidence.’ ” We presume the jury followed this instruction. (See People v. Sanchez (1995) 12 Cal.4th 1, 70.)
D. Questioning on Matters Ruled Inadmissible
Sands next contends the prosecutor repeatedly elicited from witnesses evidence that the trial court had ruled inadmissible. In particular, Sands argues the prosecutor committed misconduct by questioning witnesses regarding guns other than the murder weapon and by inquiring about his prior convictions and pending charges.
We are unable to evaluate the merits of this argument. Sands claims the trial court granted a defense motion “to prohibit the impeachment of any and all defense witnesses, including [Sands], with prior convictions or sustained juvenile petition[s].” But the only record reference Sands provides for this contention is a citation to defense counsel’s motion in limine. Sands does not direct us to the trial court’s claimed ruling, and it is not our obligation to search through the nearly 5,000 pages of clerk’s and reporter’s transcript to locate it. (In re S.C. (2006) 138 Cal.App.4th 396, 406, 411.) Sands’s failure to support his argument by proper reference to the record forfeits the issue on appeal. (Miller v. Superior Court (2002) 101 Cal.App.4th 728, 743; People v. Woods (1968) 260 Cal.App.2d 728, 731.) In any event, the trial court later struck the statement by Maffei of which Sands complains and admonished the jury that they were not to consider the statement for any purpose. We therefore assume no prejudice resulted. (People v. Mendoza (2007) 42 Cal.4th 686, 701.)
Sands also complains about the questions posed by the prosecutor when she cross-examined him. He contends the prosecutor committed misconduct by attempting to impeach him with “a juvenile gun incident.” Although defense counsel objected to the questioning on relevance grounds, he did not request either an assignment of prosecutorial misconduct or a curative admonition. The issue is therefore forfeited. (Guerra, supra, 37 Cal.4th at p. 1124.) Furthermore, the trial court ruled that defense counsel had opened the door to questioning regarding Sands’s possession of real or toy guns at the time the search warrant was executed. In short, the prosecutor’s cross-examination did no more than explore areas broached by defense counsel.
We discuss the propriety of the trial court’s ruling on this point below. (See part V.C., post, at p. 29.)
Sands contends that during his cross-examination, the prosecutor attempted to inject evidence of other crimes that the trial court had ruled inadmissible:
“Q. So you had -- on the night you were arrested, you had no idea you were a suspect in a stabbing?
“A. No.
“Q. So why did you run from the police when they went to arrest you?”
Defense counsel objected to the questioning as a violation of the trial court’s in limine ruling and contended that it was both irrelevant and prejudicial, as well as misconduct. Defense counsel nevertheless did not request a curative admonition, and the People contend this alleged error has been forfeited. (See Brown, supra, 31 Cal.4th at p. 553 [the defendant must request admonition to preserve prosecutorial misconduct claim for appeal].) Even assuming that the issue is properly before us, and assuming the prosecutor’s question constituted misconduct, we believe no prejudice could have resulted. The trial court sustained defense counsel’s objection to the line of questioning, and the prosecutor did not again ask Sands about running from the police. In addition, the jury was instructed with CALJIC No. 1.02 that they were not to assume to be true any insinuation suggested by a question asked a witness. We presume the jury heeded that instruction, and we conclude that the record does not support Sands’s claim of prejudice. (People v. Horton (1995) 11 Cal.4th 1068, 1121.)
Sands next argues the prosecutor improperly questioned him “about several booking photos.” Sands’s appellate counsel provides us with no record citation to the challenged questioning, but we assume that counsel refers to a portion of the prosecutor’s cross-examination concerning Sands’s height and the length of his hair. During this questioning, the prosecutor showed Sands photographs of himself from different time periods. Defense counsel did not object to this line of questioning as prosecutorial misconduct and did not request that the trial court admonish the jury. The issue has therefore been forfeited for appeal. (Brown, supra, 31 Cal.4th at p. 553.) Even if the issue had been properly preserved, however, Sands could show no prejudice from the prosecutor’s conduct. It was Sands himself—not the prosecutor—who first referred to the photos at issue as “booking photos” and “mug shots.” Furthermore, the prosecutor showed the photos only to Sands. And, as the trial judge noted, the photos were not published to the jury, and they did not come into evidence.
E. Alleged Mischaracterizations of the Evidence
Sands’s final claim of prosecutorial misconduct concerns alleged mischaracterizations of the evidence by the prosecutor. The first claimed mischaracterization concerns a comment by the prosecutor during closing argument. The prosecutor stated: “Defense counsel says that the fact that [S]ands, his client, tells you that Debergerac had guns means he had the means. Well, that goes both ways. That means [S]ands had the means. And the house is an arsenal.” (Italics added.) Sands argues that the italicized statement was unfounded because the prosecutor “was fully aware through [his] testimony and through arguments made out of the jury’s presence that all but one of the guns seized at [his] residence belonged to his father.”
Here again, Sands’s counsel has provided us with no record citation to either the portions of Sands’s testimony upon which this claim is based or to “arguments made out of the jury’s presence.” We would therefore be justified in simply refusing to consider the matter. (See City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.) Counsel is required to support any reference to a matter in the record with a citation, and this requirement applies to both the brief’s statement of facts and to its argument. (Id. at p. 1239, fn. 16; see Cal. Rules of Court, rule 8.204(a)(1)(C) [“(1) Each brief must [¶] . . . [¶] (C) [s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears,” italics added].) This is especially important in cases such as this, where the record is lengthy. (See Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290 [“[t]he duty to adhere to appellate procedural rules grows with the complexity of the record”].)
Defense counsel did not object to the statement, did not seek an assignment of misconduct, and did not request a curative admonition. The matter is therefore forfeited. (Brown, supra, 31 Cal.4th at p. 553.) And even if the issue were properly before us, we would be hard pressed to find fault with the prosecutor’s statement. There was testimony that a number of guns and live ammunition were seized from the house where Sands lived. The prosecutor’s statement was therefore a fair comment on the evidence.
Sands argues the prosecutor had an improper “penchant for ‘refreshing’ witnesses’ recollections by characterizing conversations intercepted by wiretap that were not admitted into evidence, and then questioning witnesses about them.” Although Sands’s trial counsel objected to the prosecutor’s questioning, he did not claim that it constituted misconduct and did not request a curative admonition from the trial court. As a consequence, this claim has been forfeited. (Brown, supra, 31 Cal.4th at p. 553.) Furthermore, the intercepted conversations at issue were later played for the jury, so any prejudice that conceivably might have resulted was dispelled.
II. Sufficient Evidence Supports the Convictions
Sands argues the testimony of Debergerac was insufficient to support the convictions. This argument is based largely on Debergerac’s receipt of immunity and on his claimed status as an accomplice. We conclude that, even if Debergerac is treated as an accomplice, his testimony was sufficiently corroborated to support Sands’s convictions.
As noted previously, Sands was convicted of assault with a deadly weapon, battery, murder, assault with a machine gun, discharge of a firearm at an occupied motor vehicle, and transportation of a machine gun. Sands’s brief does not state whether the claimed unreliability of Debergerac’s testimony affects the convictions for all of these crimes or only some of them.
Sands appears to assume Debergerac was an accomplice to the crimes of which Sands was found guilty. The jury was instructed that it must decide whether Debergerac was an accomplice. In his brief, the Attorney General does not dispute Sands’s argument that Debergerac was an accomplice, and we will therefore assume the jury found Debergerac was Sands’s accomplice.
Sands was convicted of assault with a deadly weapon because the jury found him guilty of having stabbed Clarke. In open court, Clarke himself identified Sands as the person who stabbed him. In addition, Gomez testified he asked Sands “[w]hy would he stab the guy,” and Sands did not deny the stabbing. (See People v. Geier (2007) 41 Cal.4th 555, 590-591 [the defendant’s silence in face of implied accusation that he had killed victim constituted adoptive admission of guilt].) The testimony of Clarke and Gomez was certainly sufficient to corroborate Debergerac’s testimony that he saw Sands hit someone in the chest during the September 14, 2001 altercation.
The jury also convicted Sands of the murder of Robert Ramirez. Here again, Debergerac’s testimony was sufficiently corroborated. Robert Ramirez’s brother, Michael Ramirez, testified that Sands repeatedly asked Robert Ramirez whether the latter had “snitched.” Hurley testified Sands and Robert Ramirez fell out after the stabbing incident; and, when Hurley urged Sands to reconcile with Robert Ramirez, Sands repeatedly called Robert Ramirez a “rat.” Hurley further testified that in the week before Robert Ramirez was murdered, Sands told him that he (Sands) had “backed Robert [Ramirez] up; and now he’s going to go to prison for it.” This testimony was independent evidence of Sands’s motive to kill Robert Ramirez, and corroborated Debergerac’s testimony. (People v. Szeto (1981) 29 Cal.3d 20, 28.) Moreover, the People introduced cell phone records that placed Sands near the scene of the murder at the time it was committed. Cell phone records are independent evidence that may be used to corroborate accomplice testimony. (See People v. Vu (2006) 143 Cal.App.4th 1009, 1023.) In addition, Sands’s brother-in-law, DeVera, testified that Sands had asked him to hold the gun that was later determined to be the murder weapon. Having presented independent evidence of Sands’s motive for the killing, his presence near the scene at the time the murder was committed, and his possession of the murder weapon, the People adequately corroborated Debergerac’s testimony. (People v. McDermott (2002) 28 Cal.4th 946, 986.)
III. The Trial Court Properly Administered the Oath to Prospective Jurors
Sands argues the judgment must be reversed because the trial court failed to readminister the oath to the jury “immediately prior to voir dire.” He contends the trial court’s alleged error violated Code of Civil Procedure section 232 and infringed upon his rights under the Sixth and Fourteenth Amendments to the federal Constitution. We conclude Sands’s trial counsel forfeited this claim of error by failing to make a contemporaneous objection. Moreover, even if the claim had not been forfeited, it is meritless.
On October 25, 2005, in the midst of trial, defense counsel filed a motion to dismiss the case because the clerk allegedly had failed to administer the jury oath properly. Citing Code of Civil Procedure section 232, subdivision (a) (hereafter section 232(a)), the defense sought to dismiss the case in its entirety “due to the court’s failure to admonish the jury prior to voir dire.” The motion claimed that “[t]he jurors in [Sands’s] case were not administered this oath and therefore never swore to answer truthfully questions concerning their qualifications and competency.” After the trial court provided defense counsel with copies of minute orders that noted that the oath had been administered to prospective jurors on October 13 and 14, 2005, the defense filed supplemental arguments claiming that (1) the minute orders did not reflect that the oaths were administered as required by section 232(a); (2) assuming the oaths were administered, there was no evidence that they were administered properly; and, (3) even if the oaths had been administered properly, there was no evidence that the oaths were “specifically extended to voir dire.”
Section 232(a) provides: “Prior to the examination of prospective trial jurors in the panel assigned for voir dire, the following perjury acknowledgement and agreement shall be obtained from the panel, which shall be acknowledged by the prospective jurors with the statement ‘I do’: [¶] ‘Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court; and that failure to do so may subject you to criminal prosecution.’ ”
On October 27, 2005, the trial court conducted a hearing on the motion to dismiss. The trial judge called the court clerk of Department 24 to the stand. The clerk identified the clerk’s minutes for October 13 and 14, 2005, which noted she had administered the oath to four groups of prospective jurors. The court clerk testified it was her practice to read the oath to prospective jurors from a “copy in her possession,” and she then identified the copy and read the oath set forth in section 232(a) into the record. The court clerk further testified she then called in the trial judge to inquire about the prospective jurors’ hardship claims. The 17 jurors and alternates who were seated on the jury came from the four groups of prospective jurors she had sworn.
Defense counsel argued the oath was defective because the prospective jurors were not told “the oath also pertained to a time in the future when they would be voir dired by counsel and the court.” According to defense counsel, the prospective jurors would only have understood the oath as pertaining to questions regarding their claims of hardship, rather than to voir dire questions generally. The prosecutor responded that the oath was not limited in time, the defense had failed to demonstrate any prejudice, and the defense had forfeited the issue by waiting until midtrial to raise it. The trial court denied the motion for the reasons stated by the prosecutor in argument, noting the oath was not limited in time and the defense argument that the jurors did not understand the terms of the oath was pure speculation.
Sands’s argument is meritless. First, the People are correct that Sands forfeited this issue by waiting until the middle of the trial to raise it. In general, we will not consider alleged procedural defects or erroneous rulings where an objection could have been, but was not, presented to the trial court. (See, e.g., People v. Saunders (1993) 5 Cal.4th 580, 589-590.) If Sands’s trial counsel believed it necessary to readminister the oath to the jury after the trial court heard hardship claims from the prospective jurors, then counsel should have requested that the clerk administer the oath a second time prior to counsel’s voir dire examination. The record reflects no such request. As a consequence, the issue is forfeited.
Even if the issue had not been forfeited, Sands has not demonstrated prejudice from the asserted error. On appeal, he argues he “was prejudiced by lacking any assurance that the jurors who decided his fate acted honestly in the voir dire process.” This argument simply asks us to speculate jurors may have been dishonest during the voir dire process and lacks any supporting evidence. Sands’s claim is even weaker than the similar one rejected in People v. Carter (2005) 36 Cal.4th 1114, a case in which the trial court had admittedly failed to administer the section 232(a) oath to two of three panels of prospective jurors. (See Carter, at pp. 1174-1175.) Despite the error, our Supreme Court concluded the defendant had failed to demonstrate prejudice. (Id. at pp. 1176-1177.) Here, the section 232(a) oath was indisputably administered to all prospective jurors prior to the court’s inquiry into hardship claims. Like the Supreme Court in Carter, “we reasonably may infer that the same prospective jurors similarly understood that they were required to respond truthfully to the questions posed during the voir dire examination.” (Carter, at p. 1177.) In this case, there was no error, much less any prejudice to the defendant. (Ibid.; see also People v. Lewis (2001) 25 Cal.4th 610, 630-631.)
Sands’s claim that this case is similar to People v. Mello (2002) 97 Cal.App.4th 511 borders on the frivolous. In Mello, the judge presiding over the trial of an African-American defendant “instruct[ed] prospective jurors during voir dire that, if they harbored racial bias against [the] defendant because of her race, they should lie about it under oath and make up some other reason to be excused from serving as jurors on this case.” (Id. at p. 513.)
IV. Alleged Instructional Errors
Sands next raises a host of claimed instructional errors. We conclude none of the arguments raised is meritorious, and dispose of them without extended discussion.
A. CALJIC No. 3.10
Sands contends the trial court improperly truncated the definition of “accomplice” in CALJIC No. 3.10 with the result that “Debergerac’s testimony was not properly subjected to the rule requiring corroboration.” But the record shows that the trial court gave a number of other instructions that remedied any possible deficiency in the trial court’s definition of accomplice, including CALJIC Nos. 3.00 (Principals—Defined), 3.01 (Aiding and Abetting—Defined), 3.11 (Testimony of Accomplice must be Corroborated), 3.12 (Sufficiency of Evidence to Corroborate an Accomplice), 3.14 (Criminal Intent Necessary to make One an Accomplice), 3.18 (Testimony of Accomplice to be Viewed with Care and Caution), and 3.19 (Burden to Prove Corroborating Witness Is an Accomplice). (See People v. Castillo (1997) 16 Cal.4th 1009, 1016 [jury instructions must be reviewed as a whole; absence of element in one instruction may be supplied by another].) In addition, we have already concluded Debergerac’s testimony was sufficiently corroborated. Where, as here, sufficient corroborating evidence exists, any failure to instruct on accomplice liability is harmless. (People v. Lewis (2001) 26 Cal.4th 334, 370.)
B. CALJIC No. 2.03
Sands next complains the trial court erred in giving CALJIC No. 2.03 (Consciousness of Guilt—Falsehood), because it was unnecessary, argumentative, and improperly focused the jury’s attention on one piece of the prosecution’s evidence. “The giving of CALJIC No. 2.03 is justified when there exists evidence that the defendant prefabricated a story to explain his conduct. The falsity of a defendant’s pretrial statement may be shown by other evidence even when the pretrial statement is not inconsistent with [the] defendant’s testimony at trial. . . . When testimony is properly admitted from which an inference of a consciousness of guilt may be drawn, the court has a duty to instruct on the proper method to analyze the testimony.” (People v. Edwards (1992) 8 Cal.App.4th 1092, 1103-1104.) In this case, Debergerac testified that Sands had claimed both that he was at home at the time of the murder and that other people would vouch for the fact that he was at home. The jury could properly draw an inference of consciousness of guilt from this testimony, especially since Sands’s cell phone records showed that calls were made from his cell phone from the vicinity of the murder scene around the time the crime was committed. (See People v. Kimble (1988) 44 Cal.3d 480, 498.) Finally, the California Supreme Court has already rejected claims that CALJIC No. 2.03 is argumentative or biased in favor of the prosecution (People v. Stitely (2005) 35 Cal.4th 514, 555), that it improperly lessens the prosecution’s burden of proof (People v. Benavides (2005) 35 Cal.4th 69, 100), or that it improperly pinpoints the prosecution’s evidence. (People v. Kelly (1992) 1 Cal.4th 495, 531-532.) The trial court did not err in giving the instruction.
C. CALJIC No. 2.51
Sands next contends that CALJIC No. 2.51 erroneously permitted the jury to find guilt based solely on his motive. Sands contends that this instruction is “obviously aberrant” and claims that it “appeared to include an intentional omission that allowed the jury to determine guilt based upon motive alone.” In Sands’s view, the jury would not have been able to distinguish his motive for murdering Robert Ramirez from his intent to commit the crime. Our high court has rejected claims similar to those Sands raises, holding that the terms “motive” and “intent” are not synonymous. (People v. Hillhouse (2002) 27 Cal.4th 469, 504.) “Motive describes the reason a person chooses to commit a crime. The reason, however, is different from a required mental state such as intent or malice.” (Ibid.) Thus, for example, in People v. Cash (2002) 28 Cal.4th 703, a case involving a robbery-murder special circumstance, the Supreme Court held that CALJIC No. 2.51 did not relieve the prosecution of its burden to prove the defendant possessed the intent to rob the victim when he killed him. (Id. at pp. 738-739.) As the court explained, “The trial court instructed the jury that to find the existence of the robbery-murder special circumstance, it ‘must find the murder was committed in order to carry out or to advance the commission of the crime of robbery,’ and that ‘the special circumstance is not present if the defendant’s intent is to kill and the related felony of robbery is merely incidental to the murder.’ In sum, the instructions as a whole did not use the terms ‘motive’ and ‘intent’ interchangeably, and therefore there is no reasonable likelihood the jury understood those terms to be synonymous. [Citation.]” (Id. at p. 739.) The same is true in this case. The jury was instructed that it could not convict Sands of murder unless it found he possessed the requisite intent. Sands offers no basis for concluding the jury understood the terms “motive” and “intent” to be synonymous.
The jury was instructed as follows: “Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of motive may tend to show the defendant is not guilty. The weight to which any evidence of motive is entitled is a matter for you to decide.”
People v. Maurer (1995) 32 Cal.App.4th 1121, upon which Sands relies, is inapposite. In Maurer, the defendant was charged with misdemeanor child annoyance (Pen. Code, § 647.6), a crime requiring proof the defendant’s act was “ ‘motivated by an unnatural or abnormal sexual interest.’ ” (Id. at p. 1125, italics added.) The jury was also instructed that, under CALJIC No. 2.51, motive was not an element of the crime charged. (Ibid.) The court held that the trial court erred by not excluding the Penal Code section 647.6 offenses from the motive instruction of CALJIC No. 2.51. (Id. at p. 1127.) The court concluded that the distinction between “motivation” and “motive” was of little practical significance and that the two instructions essentially presented the jury with “conflicting terms.” (Ibid.) The same cannot be said of the terms “intent” and “motive.”
D. CALJIC Nos. 2.01, 8.83, and 8.83.1
Sands also asserts the trial court erred in giving three standard jury instructions concerning circumstantial evidence because they had the effect of undermining the reasonable doubt standard. Sands complains “there is a reasonable likelihood that the jury applied the circumstantial evidence instructions to find [his] guilt on a standard that is less than constitutionally required.” The instructions at issue are CALJIC Nos. 2.01 (Sufficiency of Circumstantial Evidence—Generally), 8.83 (Special Circumstances—Sufficiency of Circumstantial Evidence—Generally), and 8.83.1 (Special Circumstances—Sufficiency of Circumstantial Evidence to Prove Required Mental State).
At the outset, we note Sands has forfeited any claim of error in the giving of CALJIC No. 2.01, since his trial counsel invited the error by specifically requesting the instruction. (See, e.g., People v. Wader (1993) 5 Cal.4th 610, 658.) Moreover, the California Supreme Court has repeatedly rejected the argument Sands raises here. (See People v. Crew (2003) 31 Cal.4th 822, 847; accord, People v. Jurado (2006) 38 Cal.4th 72, 126-127.) Sands does not mention, let alone attempt to distinguish, Crew, Jurado, or the cases upon which they rely. Those decisions are binding on this court and compel us to reject Sands’s claims. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
E. CALJIC Nos. 1.00, 2.21.2, 2.22, 2.27, and 8.20
Sands next complains that a number of other standard instructions (CALJIC Nos. 1.00, 2.21.2, 2.22, 2.27, and 8.20) “vitiated the reasonable doubt standard.” Sands does not discuss the numerous recent California Supreme Court decisions that have expressly rejected contentions identical to those he makes here. (See Jurado, supra, 38 Cal.4th at p. 127 [CALJIC No. 1.00 does not undercut prosecution’s burden of proof]; People v. Snow (2003) 30 Cal.4th 43, 97 & fn. 19 [same]; People v. Maury (2003) 30 Cal.4th 342, 428-429 [CALJIC Nos. 2.21.2 and 2.22 do not lower standard of proof for conviction]; People v. Riel (2000) 22 Cal.4th 1153, 1200 & fn. 9 [CALJIC No. 2.21.2 standard instruction on false testimony does not reduce prosecution’s burden of proof]; Crew, supra, 31 Cal.4th at p. 848 [neither CALJIC No. 2.22 nor CALJIC No. 8.20 lessens prosecution’s burden of proof].) Sands’s claim that CALJIC No. 2.27 (Sufficiency of Testimony of One Witness) suggested that the defendant had the burden of proving facts ignores the other instructions that the prosecution had the burden of proving Sands’s guilt beyond a reasonable doubt and that the jury must consider all of the instructions as a whole. (See CALJIC Nos. 1.01 [Instructions to be Considered as a Whole], 2.90 [Presumption of Innocence—Reasonable Doubt—Burden of Proof].) “The instructions as a whole correctly instructed the jury on the prosecution’s burden of proof.” (Riel, at p. 1200.)
F. CALJIC No. 8.25
Sands argues the trial court erred in instructing the jury with CALJIC No. 8.25 that he could be found guilty of first degree murder on the theory of lying in wait. He contends there was no evidence that he watched and waited a substantial period of time before committing the murder. (See Cole, supra, 33 Cal.4th at p. 1205 [murder by lying in wait requires “a substantial period of watching and waiting for a favorable or opportune time to act”].)
Cell phone records admitted at trial showed that Sands was traveling from South San Francisco through Daly City while Debergerac attempted to reach him by cell phone. Debergerac finally reached Sands and told Sands that he had seen Robert Ramirez stranded on the freeway on-ramp at Ocean Avenue. From cell phone records of subsequent calls, the jury could reasonably have inferred that after learning of Robert Ramirez’s plight, Sands drove home to obtain the murder weapon. It could further conclude that Sands arrived in the area of the murder 10 minutes before the CHP officers left Robert Ramirez and Burke in the City College parking lot. The jury could therefore infer that Sands watched and waited for the CHP officers to leave the intoxicated Robert Ramirez alone before Sands shot him to death. This 10-minute time period of watchful waiting certainly qualifies as “substantial.” (See People v. Moon (2005) 37 Cal.4th 1, 23 [noting that “a few minutes can suffice”].)
G. The People’s Special Instruction A
Sands next argues the trial court erred in giving the prosecution’s proposed “Special Instruction A.” The instruction at issue stated: “It is not required that jurors unanimously agree as to the theory of malice, that is, whether malice is express or implied, so long as the jury is unanimous in its conclusion of guilt.” Sands contends, without elaboration, that this instruction “required the jury to find guilt.” But the instruction simply informed the jury, consistent with California case law, that the jury need not unanimously agree on the theory of malice. (See People v. Brown (1995) 35 Cal.App.4th 708, 712-716.) Although Sands apparently disagrees with the result in People v. Brown, he offers no California case law to the contrary, nor does he take issue with the reasoning of that case. We reject his challenge.
H. The Trial Court Properly Refused Defense Special Instruction B
Sands next argues the trial court erred in refusing to give a proposed instruction purportedly explaining the theory of the defense. After hearing argument from counsel, the trial court concluded that Sands’s proposed instruction was “not going to the law, which is what the instructions are. It’s factual. [¶] It seems only fair that if the defense argues -- can get an instruction on their theory, and the prosecution has, then all you’re really doing is summarizing your arguments which you’re going to give to [the] jury. You’re going to give them a lot better than the theory, as stated here. So I’m going to decline this instruction.” We detect no error.
The proposed instruction, Defense Proposed Special Instruction B, read as follows: “[S]ands has pleaded “Not Guilty” to all of the charges contained in the information. This plea of not guilty puts into issue each of the essential elements of each of the offenses as described in these instructions and imposes on the government the burden of establishing each of these elements by proof beyond a reasonable doubt. [¶] [S]ands, moreover, contends that he is not guilty of the crimes charged and asserts the defense of third party culpability both for the stabbing and for the shooting. [¶] [Sands’s] theory of the case is that he was present at the stabbing but was not the perpetrator and did not engage in the fight. He had no motive for the stabbing and did not have a weapon. [¶] [Sands’s] theory of the case as to the shooting is that he was not the perpetrator. [S]ands did not have a motive to kill the victim because he is innocent of the stabbing and therefore knew that Robert Ramirez could not, and would not, give direct testimony against him. [S]ands visited near the crime scene in order to locate [D]ebergerac but never found him. [D]ebergerac had both motive and access to the victim. [D]ebergerac delivered the murder weapon to [S]ands after the fact for safekeeping.”
Although the trial court must give instructions that pinpoint a theory of the defense, it may properly refuse instructions that highlight specific evidence. (People v. Earp (1999) 20 Cal.4th 826, 886.) Sands’s proposed instruction sought to highlight certain specific evidence and invited the jury to draw inferences favorable to him from that evidence. As a consequence, the instruction was properly refused as argumentative. (Ibid. [instruction that “ ‘invite[s] the jury to draw inference favorable to one of the parties from specified items of evidence’ [are] considered ‘argumentative’ and therefore should not be given”].) Furthermore, the instruction was cumulative in that the trial court instructed the jury pursuant to CALJIC No. 2.90 that it was the prosecution’s burden to prove Sands’s guilt beyond a reasonable doubt. (See id., at p. 887.) Sands’s counsel was able to argue to the jury both that Debergerac, not Sands, had murdered Robert Ramirez and that Sands had not stabbed Clarke. “Under these circumstances, it is not reasonably probable that had the jury been given [the] defendant’s proposed pinpoint instruction, it would have come to any different conclusion in this case. [Citation.]” (Ibid.)
V. Evidentiary Rulings
Sands argues the trial court abused its discretion in admitting various items of evidence because the evidence was either irrelevant, unduly prejudicial, or constituted inadmissible character evidence. (See Evid. Code, §§ 210, 352, 1101.) We review such challenges under the deferential abuse of discretion standard. (See, e.g., Cole, supra, 33 Cal.4th at p. 1195; People v. Waidla (2000) 22 Cal.4th 690, 717.)
A. The People’s Exhibit 6
Sands contends the trial court erred in admitting the People’s exhibit 6, a photograph taken several years before the murder, showing Sands standing in his bedroom, his face partially concealed by a bandana, brandishing a gun similar to the murder weapon that Sands had given to DeVera to hold. Prior to trial, Sands had moved to preclude the prosecution from introducing the photograph, contending the photo was: (1) irrelevant (Evid. Code, § 210), (2) inadmissible as character evidence intended solely to prove criminal disposition (Evid. Code, § 1101, subd. (b)), and (3) unduly prejudicial (Evid. Code, § 352).
The photograph was obviously relevant. Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The defense disputed whether the gun identified as the murder weapon actually belonged to Sands and whether it had been retrieved from his home on the night of the murder. Sands claimed in his testimony that he had no automatic weapons in his home in July 2003 and that Debergerac had given him the gun after the murder was committed. As the trial court recognized, Sands’s denial of ownership of the gun made the challenged photo relevant to the matters disputed by the defense. The trial court also did not err in concluding that the People’s exhibit 6 was relevant to the issues of knowledge, means, and premeditation. (See Evid. Code, § 1101, subd. (b) [evidence that person committed crime, civil wrong, or other act admissible when relevant to prove fact such as motive, preparation, or knowledge]; Champion, supra, 9 Cal.4th at p. 924 [photo depicting the defendants in possession of same type of gun used to kill victim held “obviously relevant”].)
Sands contends that the photograph is not relevant because there was no evidence establishing that the weapon depicted in the People’s exhibit 6 was the very same gun that was used to murder Ramirez. He argues that “[i]t is not sufficient to claim that the gun depicted in the photo and the gun used ‘resembled’ one another.” The relevant case law refutes Sands’s argument. (See People v. Champion (1995) 9 Cal.4th 879, 924 [photographs showing “[the] defendants in possession of the type of gun used to kill” the victim held relevant, italics added]; People v. Sassounian (1986) 182 Cal.App.3d 361, 401-402 [photographs showing the defendant holding different weapons held relevant because the “photographs resembled weapons that the defendant used in this particular case (although there was no contention that they were the same weapons),” italics added].)
Turning to the question of undue prejudice, Sands fails to demonstrate an abuse of discretion. “Prejudice for purposes of Evidence Code section 352 means evidence that tends to evoke an emotional bias against the defendant with very little effect on issues, not evidence that is probative of a defendant’s guilt. [Citation.]” (Crew, supra, 31 Cal.4th at p. 842.) As we have explained, the People’s exhibit 6 was relevant to disputed factual issues, and corroborated the testimony of witnesses on the key question of Sands’s possession of a weapon like the one used in the murder. Given the defense’s attack on the reliability of the testimony of those witnesses, such corroborative evidence became highly relevant. (Sassounian, supra, 182 Cal.App.3d at p. 402.) As a consequence, Sands must make a greater showing of prejudice. (Ibid.) He has not done so. The People’s exhibit 6 is not a piece of evidence having “very little effect on issues” but rather one that is “probative of defendant’s guilt.” (Crew, at p. 842.) Its admission was not an abuse of the trial court’s discretion.
B. Testimony Regarding Other Guns
Sands next argues the trial court erred in permitting witnesses to testify regarding guns other than the murder weapon. Sands claims this violated a pretrial ruling by the trial court “to exclude evidence of other crimes.” As we noted earlier in this opinion, however, counsel for Sands has provided us with no record citation to the trial court’s ruling on this motion, and this failure forfeits the issue on appeal. (Miller v. Superior Court, supra, 101 Cal.App.4th at p. 743; Woods, supra, 260 Cal.App.2d at pp. 730-731.)
Moreover, as the People correctly point out, in at least two of the instances of which Sands complains, his trial counsel objected to the questioning on grounds other than the claimed violation of any pretrial evidentiary ruling. As a result, the claim that the questioning violated a pretrial ruling has not been preserved for appeal. (Evid. Code, § 353, subd. (a).)
C. Juvenile Gun Conviction
Sands contends the trial court erred by permitting the prosecutor to question him about a prior sustained juvenile petition for possession of a handgun. We have reviewed the pages of the trial transcript Sands cites in support of this argument, and we note that the prosecutor’s questions mentioned neither a juvenile petition nor a conviction. Thus, to the extent that Sands complains about prosecution references to a “juvenile gun conviction,” his argument is simply unsupported by the record.
Sands objects to a portion of the prosecutor’s examination in which she mentioned the People’s exhibit 6, a photo of Sands taken when he was in high school, and asked whether one of the guns depicted in the photograph belonged to him. In response, Sands denied he had owned any handguns at that time, and he claimed that he had never been in possession of guns while in high school. The prosecutor then asked whether Sands had possessed guns after high school, and he answered “yes.” This drew a relevance objection from defense counsel, but defense counsel did not ask that the jury be instructed to disregard Sands’s response to the question.
At a subsequent sidebar conference, defense counsel conceded he had opened the door on the issue of Sands’s possession of guns in high school. He insisted, however, that he had not opened the door with respect to Sands’s possession of guns subsequent to high school. The prosecutor argued the defense had opened the door to questions about guns found in Sands’s house, and the trial court ruled defense counsel had opened the door on that issue by questioning Maffei regarding guns seized at Sands’s home at the time of the search warrant. The trial court agreed with defense counsel, however, “that any other crimes that occurred before this event and after high school are not open, so we didn’t go into that.” When questioning resumed after the sidebar conference, the prosecutor restricted her questioning to whether Sands had possessed guns while in high school, an area of inquiry to which defense counsel admittedly had opened the door.
We find no error in the trial court’s ruling. First, defense counsel himself admitted he had opened the door to questioning about Sands’s possession of guns during high school, so the prosecutor’s exploration of that issue cannot be faulted. Second, the trial court agreed with the defense that the door was not open to questioning about guns possessed after high school and before the time of the crime, and after the defense objection, the prosecutor limited her examination to whether Sands had possessed guns in high school. Finally, the trial court did not commit error in ruling that the defense had opened the door to questioning about guns in the Sands home at the time of the search warrant. During the cross-examination of Maffei, the defense inquired about guns seized from Sands’s home, and asked whether the guns had been seized pursuant to a search warrant on October 8, 2003. Maffei responded, “Well, all but one.” Defense counsel then went on to ask about the remaining gun, and the inspector replied that “[t]he one under [Sands’s] mattress was under his bed.” After a defense objection, the trial court ruled that defense counsel had opened the door to testimony about “where other guns were found and who they belonged to.” The trial court agreed to strike Maffei’s testimony concerning the gun found in Sands’s bedroom, because Maffei had not been present when the gun was discovered and the trial court found the answer unresponsive. Defense counsel stated that he was satisfied with the court’s ruling. The trial court then struck the challenged statement and instructed the jury that it could not consider it for any purpose. We agree that the questions posed by defense counsel opened the door to testimony about guns in the Sands home at the time of the execution of the search warrant, and we therefore conclude the trial court did not abuse its discretion in allowing the challenged questioning. (Cf. People v. Gutierrez (2002) 28 Cal.4th 1083, 1147 [the defendant’s testimony that he had used drugs and had been involved in an attempted drug buy opened door to further inquiry concerning his admitted drug use].)
D. Photographs of the Victims
Sands next claims the trial court abused its discretion in admitting into evidence a number of photographs of the victims. Sands contests the admission of the photographs, contending that he did not contest any issue related to the cause of death or injury, so the photographs “had little or no probative value relating to any disputed issues at trial” and should not have been admitted. He also claims the photographs were cumulative and unnecessary to corroborate testimony concerning Robert Ramirez’s injuries. Finally, he argues that any probative value the photographs may have had was outweighed by their “enormous prejudicial impact on the jury.”
The California Supreme Court has repeatedly rejected contentions virtually identical to those now made by Sands. People v. Heard (2003) 31 Cal.4th 946, never cited by Sands, is dispositive. In that case, a murder prosecution, the defendant complained that the trial court had improperly admitted numerous photographs of the crime scene and the victim’s body. (Id. at p. 972.) He argued that “the photographs ‘had little or no probative value relating to any issue in this case’ ” (id. at p. 973), language Sands adopts. The Supreme Court disagreed, explaining that the photographs illustrated the testimony of various prosecution witnesses who had encountered the victim and viewed the crime scene. (Ibid.) That the defense did not dispute the prosecution’s theory that the attack on the victim was a vicious one did not render the photographs irrelevant. (Id. at p. 974; accord, People v. Zambrano (2007) 41 Cal.4th 1082, 1149 [the prosecution is not “required to accept defense concessions as a sanitized alternative to the full presentation of its case”].) The court also noted the photographs of the crime scene were relevant in establishing the fact a murder had occurred. (Heard, at p. 974.) And it rejected the argument that the photographs were irrelevant merely because other evidence existed to establish that the murder had been committed. (Ibid.) As the court summarized, the photographs were not “somehow rendered irrelevant simply because [the] defendant did not dispute the cause of death or the nature and extent of the victim’s injuries.” (Id. at p. 975.)
Heard is hardly the only case on point. (See, e.g., People v. Ramirez (2006) 39 Cal.4th 398, 453-454 [photographs of victim showing wounds “highly relevant to show the manner in which the victims were killed and the severity of their injuries”]; Carter, supra, 36 Cal.4th at pp. 1164, 1166-1167 [postmortem photographs of five victims “plainly were relevant to the proceedings at the guilt phase of trial”]; People v. Michaels (2002) 28 Cal.4th 486, 531-532 [photographs and videotape of victim’s body not subject to exclusion merely because it might be cumulative of testimonial evidence]; People v. Crittenden (1994) 9 Cal.4th 83, 132 [the defendant’s failure to contest testimony of medical examiner did not render photographs of victims’ bodies irrelevant].)
Nor were the photographs unduly prejudicial. “The admission of photographs lies within the broad discretion of the trial court under Evidence Code section 352 when a claim is made that they are unduly inflammatory. The court’s exercise of its discretion will not be disturbed on appeal unless the probative value of the photographs is clearly outweighed by their prejudicial effect. [Citation.]” (People v. Howard (2008) 42 Cal.4th 1000, 1023, italics added.) The trial court did not abuse its discretion. Although Sands argues the photographs “showed gruesome and gory wounds,” that is only because they “portray the results of defendant’s violent conduct.” (Heard, supra, 31 Cal.4th at p. 976.) As our Supreme Court recently explained in another case, “[t]he photographs at issue here are gruesome because the charged offenses were gruesome, but they did no more than accurately portray the shocking nature of the crimes.” (Ramirez, supra, 39 Cal.4th at p. 454.) Moreover, even gruesome photographs may be admitted if they serve to clarify the testimony of the medical examiner, as they did in this case. (Ibid., citing People v. Coleman (1988) 46 Cal.3d 749, 776.) In sum, we hold that the trial court acted well within the bounds of its discretion in admitting the photographs.
The cases Sands cites in support of his argument do not persuade us otherwise; in fact, each was distinguished by the Supreme Court in Heard. (See Heard, supra, 31 Cal.4th at p. 977, fn. 13.) We find them distinguishable for the same reasons cited in Heard.
E. The Intercepted Telephone Conversations Were Properly Admitted
Sands argues the trial court admitted wire interceptions that were obtained illegally. He challenges the admission of 10 of the People’s exhibits (transcripts and recordings of intercepted telephone conversations played for the jury) that he claims were improperly used to bolster Debergerac’s credibility. First, Sands contends the wiretap order should not have been approved because law enforcement officials failed to demonstrate “requisite necessity.” That is, law enforcement officials did not demonstrate that “[n]ormal investigative procedures ha[d] been tried and ha[d] failed or reasonably appear[ed] either to be unlikely to succeed if tried or to be too dangerous.” (Pen. Code, § 629.52, subd. (d).) Second, he asserts the police failed to comply with the “minimization” requirements of the wiretapping statute. Section 629.58 provides, in pertinent part, “Every [wiretap] order . . . shall contain a provision that the authorization to intercept . . . shall be conducted so as to minimize the interception of communications not otherwise subject to interception under this chapter.”
To be somewhat more precise, Sands appears to challenge 10 pairs of exhibits admitted by the trial court. The recordings of the calls themselves were admitted as exhibits, and the transcripts of those calls were also admitted. For example, the trial court admitted the People’s exhibit 28, the recording of a call, and the People’s exhibit 28A, the transcript of that recording. Sands thus challenges the admission of the People’s exhibits 28, 28A, 29, 29A, 30, 30A, 31, 31A, 32, 32A, 33, 33A, 34, 34A, 35, 35A, 43, 43A, 44, 44A.
All further undesignated statutory references are to the Penal Code.
Prior to trial, Sands moved to suppress the wiretap on these grounds. The trial court rejected Sands’s claim that law enforcement officials had failed to make a showing of necessity for the wiretap. On the minimization issue, the trial court granted the motion in part, finding that nine of the 39 calls to which Sands had objected had not been properly minimized.
1. Relevant Provisions of California’s Wiretapping Statute
“In general, California law prohibits wiretapping.” (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1195; see § 631, subd. (a) [unauthorized wiretapping is a criminal offense punishable by a fine and imprisonment].) Despite this general prohibition, section 629.50, subdivision (a), permits designated law enforcement officials to apply to the superior court for an order authorizing the interception of wire, electronic pager, or electronic cellular telephone communications. As relevant here, such an order may be granted if the authorizing judge determines, on the basis of facts submitted by the applicant, that there is probable cause to believe that: (1) an individual has committed certain enumerated offenses, including murder (§ 629.52, subd. (a)(2)), (2) particular communications concerning the illegal activities will be obtained through the interception (§ 629.52, subd. (b)), and (3) the communications device will be used by the person whose communications are to be intercepted (§ 629.52, subd. (c)).
In addition to the foregoing probable cause determinations, the application for an interception order must be “supported by an adequate showing of necessity” within the meaning of section 629.52, subdivision (d). (People v. Leon (2007) 40 Cal.4th 376, 384.) Thus, the authorizing judge must determine that “[n]ormal investigative procedures have been tried and have failed or reasonably appear either to be unlikely to succeed if tried or to be too dangerous.” (§ 629.52, subd. (d).) Sands concedes the existence of probable cause, and focuses on the “ ‘necessity’ requirement” of the statute. (Zepeda, supra, 87 Cal.App.4th at p. 1204.)
Section 629.58 is also relevant to Sands’s appeal. It mandates that “[e]very order . . . shall be conducted so as to minimize the interception of communications not otherwise subject to interception under this chapter.” (§ 629.58, italics added.) One treatise explains that “to ‘minimize’ the ‘interception’ of a conversation is to refrain from hearing or recording it.” (1 Fishman & McKenna, Wiretapping & Eavesdropping: Surveillance in the Internet Age (3d ed. 2008) § 15:2, pp. 15-4 to 15-5.) A commentator has noted that there are generally two methods of minimization—“extrinsic minimization, which entails intercepting only at specified times, and intrinsic minimization, which entails determining the content of the calls as they are intercepted, and making an on-the-spot decision as to whether to continue monitoring them.” (Comment, Post-Authorization Problems in the Use of Wiretaps: Minimization, Amendment, Sealing, and Inventories (1975) 61 Cornell L.Rev. 92, 119.) “Intrinsic minimization” is what is at issue in this case.
2. The Authorizing Judge Properly Found that the Wiretaps Were Necessary
a) Standard of Review
We accord “substantial deference” to the superior court’s finding that the wiretap was necessary. (Leon, supra, 40 Cal.4th at p. 385.) As our Supreme Court explained in Leon, the requirement of necessity in section 629.52, subdivision (d), is intended to ensure that wiretapping is neither routinely employed as the initial step in a criminal investigation nor resorted to in situations in which traditional criminal investigative techniques would suffice to expose the crime. (Leon, at p. 385.) Because this statute is phrased in the disjunctive, the government may establish the necessity for a wiretap by showing either (1) that normal investigative procedures have been tried and have failed, (2) that normal investigative procedures, though not yet tried, “reasonably appear” to be “unlikely to succeed if tried”, or (3) that normal investigative procedures, though not yet tried, “reasonably appear” to be “too dangerous.” (Zepeda, supra, 87 Cal.App.4th at p. 1204.) In this case, the police relied upon the second ground in seeking authorization to intercept the communications of the target subjects.
Other courts have reviewed necessity findings only for an abuse of discretion. (Zepeda, supra, 87 Cal.App.4th at p. 1204; see also Leon, supra, 40 Cal.4th at pp. 385-386, fn. 3 [citing cases].) In Leon, however, the California Supreme Court declined to decide “precisely how to phrase the deference due a judicial finding of necessity” under section 629.52, subdivision (d). (Id. at p. 386, fn. 3.)
“The necessity requirement can be satisfied ‘by a showing in the application that ordinary investigative procedures, employed in good faith, would likely be ineffective in the particular case.’ [Citation.] As numerous courts have explained, though, it is not necessary that law enforcement officials exhaust every conceivable alternative before seeking a wiretap. [Citations.] Instead, the adequacy of the showing of necessity ‘ “is ‘to be tested in a practical and commonsense fashion,’ . . . that does not ‘hamper unduly the investigative powers of law enforcement agents.’ ” ’ [Citation.] A determination of necessity involves ‘ “a consideration of all the facts and circumstances.” ’ [Citations.]” (Leon, supra, 40 Cal.4th at p. 385.) The authorizing judge must determine that “ ‘ordinary investigative techniques employing a normal amount of resources have failed to make the case within a reasonable period of time.’ [Citation.]” (U.S. v. Bennett (9th Cir. 2000) 219 F.3d 1117, 1122.) “[T]he wiretap statute ‘does not mandate the indiscriminate pursuit to the bitter end of every non-electronic device as to every telephone and principal in question to a point where the investigation becomes redundant or impractical or the subjects may be alerted and the entire investigation aborted by unreasonable insistence upon forlorn hope.’ [Citation.]” (Bennett, at p. 1122.) Therefore even if law enforcement officers have had some success using traditional investigative techniques, this does not alone serve to extinguish the need for a wiretap. (Ibid.)
In interpreting section 629.52, we look to federal case law construing the analogous federal provision, title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 United States Code sections 2510 to 2520. (See Leon, supra, 40 Cal.4th at pp. 384-385; People v. Jackson (2005) 129 Cal.App.4th 129, 146-147.)
b) The Interception Order Was Supported by an Adequate Showing of Necessity
Sands asserts that by using search warrants or grand jury proceedings, investigators would have succeeded in closing the case.
In addition, Sands’s appellate counsel levels a number of very serious charges against the officers who sought the interception order. She asserts that they “misled” the trial court, that the affidavit in support of the application for wiretap “included material misstatements, either made intentionally or recklessly,” that the government “omitted from the affidavit information that would have been material to a necessity determination,” and that the affidavit contained “false and misleading statements.” Sands’s counsel provides no record support for these accusations, and we will not address them further.
We conclude the authorizing judge acted reasonably in finding that normal investigative techniques, including those proposed by Sands, were unlikely to succeed in this case. (Leon, supra, 40 Cal.4th at pp. 392, 396.)
As set forth in the affidavit, there is no reason to believe that the individuals targeted by the wiretap would necessarily have cooperated with a grand jury investigation by giving truthful testimony. Indeed, it is far from certain that they would have testified at all, rather than invoking their Fifth Amendment privilege against self-incrimination. (U.S. v. Carrillo (D.Colo. 2000) 123 F.Supp.2d 1223, 1236 [grand jury proceedings not adequate substitute for wiretap because subjects of investigation might invoke Fifth Amendment privilege before grand jury].) As Sands has repeatedly noted throughout his brief, Debergerac lied to the police when initially questioned about the stabbing of Clarke. He stated he did so to protect himself and Sands. Debergerac lied to the police again in July of 2003 when questioned about the murder of Robert Ramirez. Debergerac invoked the Fifth Amendment when called to testify at trial, and his testimony was secured only after he was granted immunity. Similarly, Sands’s girlfriend Ra Roeurth refused to testify at trial until she was granted immunity. In addition, certain witnesses may have been fearful of cooperating with law enforcement. Nikolov testified that after the stabbing of Clarke, Sands had called Nikolov and threatened him. (Cf. Jackson, supra, 129 Cal.App.4th at p. 167 [noting in wiretap case that witnesses may refuse to testify because of intimidation].)
Sands does not address a further problem posed by the use of grand jury proceedings—the possibility that such proceedings would alert additional individuals to the fact that they were targets of an investigation. (See U.S. v. Fernandez (9th Cir. 2004) 388 F.3d 1199, 1236; U.S. v. Carrillo, supra, 123 F.Supp.2d at p. 1236.) The affidavit in support of the wiretap application repeatedly evinced this concern, which was reasonable given the investigators’ view that the target subjects were “a close-knit group of persons whose members are either blood relatives, mutual friends, and/or very familiar with one another.”
Moreover, prior to the application for the interception order, the police investigation into Robert Ramirez’s murder had uncovered evidence that both Sands and Debergerac might have been involved in Robert Ramirez’s slaying and that a number of other individuals appeared to be cooperating to provide Sands with an alibi and to conceal information material to the investigation. The existence of this possible conspiracy is one factor the authorizing judge could weigh in determining whether an interception order was necessary. (Leon, supra, 40 Cal.4th at pp. 391-392.) A judge may find an interception necessary “even where traditional investigative procedures can lead to the successful development of evidence against some, but not all, members of a . . . conspiracy.” (U.S. v. Carrillo, supra, 123 F.Supp.2d at p. 1234.)
As to the use of search warrants, the affidavit explained that while the execution of search warrants might result in the seizure of a weapon, “such action would not likely lead to a successful conclusion of this investigation since the primary objective is to identify all members of the conspiracy and their respective roles in the murder.” The affidavit explained that the investigating officers intended to serve search warrants after obtaining the interception order because of the “belief that the service of search warrants and additional interviews will cause telephone calls to be placed to discuss this murder.” The affidavit noted that the execution of search warrants alone “will only serve to alert members of this group of co-conspirators that they are the subjects of an on-going murder investigation.”
Sands does not directly contest the foregoing statements, but contends instead that the interception order was unnecessary because, prior to the execution of the affidavit, the investigation had already uncovered “detailed information about the alleged members of the conspiracy and their roles in the charged offenses.” He then asserts that the government could have obtained all the information it sought by using search warrants, coupled with grand jury proceedings. But “the mere attainment of some degree of success during law enforcement’s use of traditional investigative methods does not alone serve to extinguish the need for a wiretap.” (United States v. Bennett, supra, 219 F.3d at p. 1122; see also U.S. v. Canales Gomez (9th Cir. 2004) 358 F.3d 1221, 1226 [necessity finding upheld where traditional investigative techniques led only to apprehension of main conspirators but not to other satellite conspirators]; U.S. v. Bailey (9th Cir. 1979) 607 F.2d 237, 242 [“the need for the wiretap arose when investigators, notwithstanding some success, had been unable, after six months of intensive effort, to learn of the full extent of the operation”].) And like the defendants in Leon, Sands “fail[s] to grapple with the affidavit’s concern that a search conducted prematurely could compromise the larger investigation while providing minimal results.” (Leon, supra, 40 Cal.4th at p. 393.)
The government did not seek the wiretap “as the first step in this investigation, nor did the government bypass viable alternative techniques in a rush to use this extraordinary method of investigation.” (Leon, supra, 40 Cal.4th at p. 396.) As the affidavit in support of the wiretap demonstrates, the police amassed considerable information through the use of traditional law enforcement techniques. Neither of the investigative methods proposed by Sands offered a realistic prospect of exposing the full extent of the conspiracy without the assistance of wiretaps. The authorizing judge did not act unreasonably in concluding that the affidavit supporting the application for a wiretap made an adequate showing of necessity. (Ibid.)
3. Sands Has Forfeited His Minimization Claim by Failing to Provide an Adequate Record
Sands claims the government failed to comply with its obligation to “minimize” nonpertinent calls. He argues that of the 77 intercepted calls to which he was a party, all those designated by the monitors as nonpertinent should have been suppressed. Sands asserts that there are 27 such calls and further asserts that eight calls designated by the monitors as pertinent actually had little or nothing to do with the investigation and should have been suppressed.
Initially, we have difficulty identifying with certainty the calls to which Sands objects. He does not enumerate them in either of his briefs. We assume he refers to those calls listed in a log that was attached as an exhibit to his reply to the People’s opposition to his motion to suppress the wiretap. But even if this assumption is correct, we are still unable to evaluate the merits of Sands’s claim because he has failed to provide us with a record adequate to permit proper appellate review.
We cannot be entirely certain of this, because Sands’s opening brief on appeal contends that 35 calls should have been surpressed, whereas our review of the log submitted to the trial court reveals a total of 36 calls that were allegedly improperly minimized.
Sands’s essential contention is that “the monitors continued to listen to calls they had designated as ‘non-pertinent’ without regard to the relevant case law mandating a two (2), or at the very least three (3) minute cut-off period with ‘non-pertinent’ calls.” Sands notes that the trial court reviewed transcripts and listened to all the calls of which he complained. He further states that the transcripts and recordings were admitted as evidence and filed with the trial court. Although the hearing transcript makes clear that the trial court listened to a compact disc of the calls in question and reviewed transcripts of the calls, neither the disc nor the call transcripts are part of the record before us. They are not noted as exhibits in the court minutes for the hearing on Sands’s motion to suppress the wiretap. There is no record that they were received as exhibits or filed with the trial court. Since we cannot listen to the calls ourselves or review transcripts of them, we have no way of deciding whether Sands’s claims are valid or not. (See Scott v. United States (1978) 436 U.S. 128, 142-143 [reviewing substance of challenged calls to determine whether they were properly minimized]; U.S. v. Cleveland (E.D.La. 1997) 964 F.Supp. 1073, 1098-1100 [describing in detail transcripts of challenged calls to determine whether they were improperly minimized].)
Sands derives this allegedly mandatory two- to three-minute cut-off period from cases such as U.S. v. Homick (9th Cir. 1992) 964 F.2d 899. But this misstates the holding of that case. In Homick, the Ninth Circuit expressly refused to establish a bright-line rule for how long government monitors could listen to calls before minimizing those that were nonpertinent. Instead, it held only that listening to intercepted calls for two minutes before minimizing the calls did not violate federal statutory restrictions on wiretapping. (Id. at p. 903.) It is true that most courts have approved monitoring of the initial portion of calls for a period of two to three minutes. (1 Fishman & McKenna, Wiretapping & Eavesdropping: Surveillance in the Internet Age, supra, § 15:17, p. 15-28, fn. 1 [collecting cases].) Nevertheless, there simply is no hard and fast rule applicable to all cases. As the District of Columbia Circuit has explained, “a blanket rule that the agents must always turn off after X minutes of innocent conversation would create a privileged sanctuary for illegal conversations.” (U.S. v. Wilson (D.C. Cir. 1987) 835 F.2d 1440, 1446.) The reason for this is simple. “A conversation between principals that begins innocuously may become [crime]-related.” (U.S. v. Torres (9th Cir. 1990) 908 F.2d 1417, 1424.) Indeed, this appears to have been the case here, as Maffei testified that the discussion of pertinent and nonpertinent subjects would often “weave in and out” during the course of a call.
The record on appeal does contain full or partial transcripts of the 10 calls that Sands claims were improperly used to bolster Debergerac’s credibility. (See fn. 13, ante, p. 33.) We have reviewed those transcripts, and those calls seem to have been properly classified as pertinent.
The trial court conducted an extremely conscientious review of the challenged calls, and we decline to second-guess the trial court’s decision based on the representations of Sands’s appellate counsel. Nor can we accept Sands’s contention that the monitors’ failure to minimize a large percentage of calls on its face constitutes an “egregious violation” of the statute requiring suppression of the wiretap. The United States Supreme Court warned in Scott that “blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide to the correct answer.” (Scott v. United States, supra, 436 U.S. at p. 140.) Unless a defendant makes specific objections to particular calls, he is “precluded from relying solely on the existence of a raw percentage of non-pertinent intercepted calls as a means of demonstrating that some conversations were intercepted when they would not have been had reasonable attempts at minimization been made.” (U.S. v. Carter (D.C. Cir. 2006) 449 F.3d 1287, 1295 [fact that government minimized only 27 percent of nonpertinent calls does not alone establish improper minimization]; see also U.S. v. Wilson, supra, 835 F.2d at p. 1446 [no statutory violation shown where monitoring agents minimized only 16 percent of calls].)
Having failed to provide a proper appellate record, Sands has forfeited his argument that the monitors failed to properly minimize nonpertinent calls.
VI. Failure to Call Logical Witnesses
Sands contends the trial court erred in allowing the prosecutor to comment on the defense’s failure to call logical witnesses. During her closing argument, the prosecutor commented generally on the defense’s failure to call witnesses who might be helpful to the defense, and she remarked specifically on defense counsel’s failure to call a man named Michael Ortiz (Ortiz), who could have provided Sands with an alibi. Testifying about his whereabouts on the night of Robert Ramirez’s murder, Sands had claimed he purchased cocaine from Ortiz that night. Prior to closing argument, defense counsel sought to prevent the prosecutor from commenting on the failure to call logical witnesses, including Ortiz. Defense counsel acknowledged he had considered calling Ortiz, but claimed he had declined to do so because Ortiz might assert his Fifth Amendment privilege against self-incrimination. The trial judge ruled against the defense.
We find no error in the trial court’s ruling. The trial court has discretion to determine whether the circumstances of the case permit the prosecution to comment upon the defense’s failure to call logical witnesses. (People v. Ford (1988) 45 Cal.3d 431, 447.) Where, as here, “the defendant has taken the stand . . . and offered an alibi defense in which he identifies other persons who could support his testimony, and those witnesses are available and subject to subpoena, there should be no question but that comment is appropriate and permissible.” (Ibid.)
In fact, Sands’s trial counsel acknowledged that Ortiz would be a corroborating witness, but admitted that “for a number of reasons, we [e]lected not to call him.” The only reason identified—that Ortiz might claim a Fifth Amendment privilege—does not make Ortiz unavailable. “The prosecutor was not precluded from commenting on [Sands’s] failure to call [Ortiz] simply because [Ortiz] might have asserted his right against self-incrimination. A witness becomes ‘unavailable’ on self-incrimination grounds, and thus immune from comment on his absence for that reason, only when his actual sworn assertion of the privilege has been upheld by the trial court . . . .” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1216, fn. 9.)
VII. Sufficient Evidence Supports Sands’s Conviction of First Degree Murder by Lying in Wait
A. Standard of Review
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We are required to accept logical inferences that the jury might have drawn from the circumstantial evidence before it. (People v. Panah (2005) 35 Cal.4th 395, 487-488.) Even if we believe that the evidence could be construed in a manner consistent with the defendant’s innocence, we cannot interfere with the jury’s factual determinations. (See Earp, supra, 20 Cal.4th at pp. 887-888 [“ ‘our opinion that the circumstances also might reasonably be reconciled with a contrary finding’ does not render the evidence insubstantial”].) We may not reverse the defendant’s conviction for lack of sufficient evidence “[u]nless it is clearly shown that ‘on no hypothesis whatever is there sufficient substantial evidence to support the verdict.’ [Citation.]” (People v. Misa (2006) 140 Cal.App.4th 837, 842.)
B. The Evidence Supporting the Verdict
To establish murder by lying in wait, the People were required to prove three elements: “(1) a concealment of purpose, (2) a substantial period of watching and waiting for a favorable or opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage.” (Cole, supra, 33 Cal.4th at p. 1205.) Sands contests only the sufficiency of the evidence to show that he watched and waited for a substantial period of time before killing Robert Ramirez.
In part IV.F., ante, at page 25, we discuss the cell phone record evidence admitted. From this evidence the jury could reasonably have inferred that Debergerac informed Sands that Robert Ramirez’s car had broken down, and Sands then drove to this location, arriving by 3:23 a.m., 10 minutes before the CHP officers left Robert Ramirez and Burke in the City College parking lot. The jury could infer from this evidence that Sands watched and waited for the CHP officers to leave the intoxicated Robert Ramirez alone before Sands shot him to death. Ten minutes of watchful waiting qualifies as “substantial.” (See Moon, supra, 37 Cal.4th at p. 23 [noting that “a few minutes can suffice”].) Accordingly, substantial evidence supports the jury’s conviction of Sands on the theory of murder by lying in wait.
DISPOSITION
The judgment is affirmed.
We concur. NEEDHAM, J., REARDON, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.