Opinion
F068908
11-13-2019
THE PEOPLE, Plaintiff and Respondent, v. SPENCER ALEC SCARBER, Defendant and Appellant.
Nuttall Coleman & Drandell, Nuttall & Coleman, and Roger T. Nuttall; Page & Page, Kathleen C. Page and Edgar Eugene Page; Page Law Firm and Edgar E. Page for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Darren K. Indermill, Kathleen A. McKenna, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F11904421)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr., Judge. Nuttall Coleman & Drandell, Nuttall & Coleman, and Roger T. Nuttall; Page & Page, Kathleen C. Page and Edgar Eugene Page; Page Law Firm and Edgar E. Page for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman, Darren K. Indermill, Kathleen A. McKenna, and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Spencer Alec Scarber (defendant) stands convicted, following a jury trial, of forcible rape (Pen. Code, § 261, subd. (a)(2); count one), forcible sexual penetration (§ 289, subd. (a)(1)(A); count two), first degree burglary in which a nonaccomplice was present in the residence (§§ 459, 460, subd. (a), 667.5, subd. (c)(21); count four), and first degree residential robbery (§ 211; count five). As to counts one and two, he was found to have committed the offense during the commission of first degree burglary, and to have used a knife in the commission of the offense. (§§ 667.61, subds. (d)(4) & (e)(3), 12022.3, subd. (a).) As to counts four and five, he was found to have personally used a knife during commission of the offense. (§ 12022, subd. (b)(1).) Defendant's motion for a new trial was denied, and he was sentenced to prison for 25 years to life plus 10 years.
All statutory references are to the Penal Code unless otherwise stated.
Defendant was acquitted of count three, which charged a second violation of section 289, subdivision (a)(1)(A).
On appeal, we hold: (1) Defendant is not entitled to reversal based on asserted prosecutorial conflict of interest and/or misconduct; (2) Defendant has not shown the trial court was biased; (3) Defendant's statements were properly admitted, but if they were not, the error was harmless beyond a reasonable doubt; (4) The trial court did not err by finding defendant voluntarily absented himself from trial, continuing the trial in defendant's absence, and denying defendant's motion for a mistrial; (5) If the trial court erred by failing to instruct on consent and/or mistaken belief in consent, the error was harmless; (6) The trial court did not err by denying defendant's new trial motion, refusing to issue body attachments for and compel the testimony of certain witnesses, or refusing to release subpoenaed documents; (7) Defendant has failed to establish ineffective assistance of counsel or a violation of his right to autonomy; and (8) Defendant is not entitled to reversal based on cumulative error. Accordingly, we affirm.
During the course of this appeal, defendant has filed a number of requests and motions. We deferred our rulings on several of them pending consideration of the appeal on its merits. A separate order addressing any outstanding requests or motions will be filed contemporaneously with our opinion.
FACTS
In July 2011, Y.G. worked as a housekeeper at Ronnie S.'s home in Squaw Valley. On Friday, July 29, Y.G. arrived at 11:00 a.m. She had been there a little over half an hour and was vacuuming the bathroom with her back to the doorway, when someone bumped into her and put his arms around her. When she started screaming, he put his hand over her mouth. She struggled to break away, but he told her to stop fighting him and he pulled out a knife and put it to her throat. Fearing for her life, she submitted.
Pursuant to California Rules of Court, rule 8.90, certain persons will be referred to by their first name or initials. No disrespect is intended.
Undesignated dates in the statement of facts are to the year 2011.
The man let her go, and she turned around. Her assailant's face was covered with what looked like a T-shirt or some kind of material, and he was wearing large dark glasses. He told Y.G. to turn off the vacuum. He still had the knife, and she complied. He then told her to go over to the bed and get naked. She resisted a couple of times, but he threatened her by bringing the knife closer to her each time. Eventually, she got undressed. He noticed a cell phone in her pocket, took it from her, and set it on the bed.
Once Y.G. was naked, the man told her to lie on the bed. She complied. He then put one or more fingers in her vagina and another finger or fingers in her anus. After he did this, he tried to penetrate her vagina with his penis. He was having problems inserting it and seemed frustrated. Eventually, he achieved penetration.
At some point, Y.G. saw the knife and her phone lying next to her on the bed. She reached for them, but the man noticed, grabbed them and moved them away, and then pinned her hands above her head. When he finished raping her, he took the knife and her cell phone and rushed to the door. As he was leaving, he said, "Next time you come back," and he mumbled something else. Because she came to the house on a regular basis, Y.G. felt he was someone who knew something about her.
Once the man left the room, Y.G. put some of her clothes back on, then went to the bedroom of Brittany C. to see if she had a phone. When Brittany opened the bedroom door, Y.G. told her what had happened. Brittany checked on her elderly grandfather, then called 911.
When medical and law enforcement personnel arrived, Y.G. was visibly shaking and crying. She described her assailant as tall and skinny, with buzzed brown or dark hair, and with a dark-colored T-shirt or something covering his face up to his eyes and glasses. Y.G. had no idea who he was. She later learned defendant had been accused of committing the rape. She had never heard his name or seen him before.
According to Brittany, defendant had been at the house a few weeks earlier, when Y.G. was there. Defendant asked who Y.G. was and was told she was the housekeeper.
Ronnie came home as soon as Brittany notified her of the rape. Ronnie gave the police several names of young men she thought could fit the perpetrator's description. All were former friends of her son, Thomas S. The first person who came to her mind was defendant. She described him to deputies as tall and slender, with medium-brown hair in a buzz cut. Late that afternoon or early evening, a white car drove back and forth past the house. Ronnie notified the police, because it seemed suspicious and she thought it might be the perpetrator. Thomas said it was defendant in his mother's car.
The S. home had a driveway that was about the length of a football field. An inoperable Ford Explorer sat near the midpoint. Late on the evening of the incident, Ronnie heard a lot of young people out there. Someone said defendant was there and had confessed.
Ronnie recalled walking down to the car with Brittany and Brittany's husband, Jaron C. At least two females and several males, all teenagers or young adults, were at the vehicle. Defendant was also there. Ronnie asked him why he would rape Y.G. He said he did not know why. Other people were also asking him questions. When Ronnie asked defendant where Y.G.'s cell phone was, defendant responded that he might have thrown it in the field or he might have thrown it down the road.
Brittany heard defendant mumble a couple of times that he was going to go to jail. Although it was dark out, she could clearly see his face. She did not observe any injuries.
During this time, defendant was sitting in the car. Ronnie could clearly see his face. He was not injured in any way. He appeared to be high on something, but he was coherent and knew what he was saying. Ronnie saw items in the vehicle that she believed were connected to the rape, including sunglasses, a knife, and a T-shirt. Ronnie had previously seen defendant with the sunglasses. Although she had not seen this knife, she had known defendant to carry knives before.
At some point, Ronnie returned to the house. Later, after everyone was gone, Ronnie returned to the car. She put the items in a garbage bag to hold until she could give them to law enforcement. Deputies arrived before she made it back to the house, and she gave them the items.
Jaron recalled getting off work late that evening and going to the house. There, he learned Thomas had talked to a couple of his friends, who were able to get defendant to come over. Jaron went down to the Ford Explorer. Defendant was walking up the road with one of his friends. Jaron, Thomas, Chauncey G., two other males, and at least one female, gathered by the Explorer and asked defendant to sit in the front passenger seat. Defendant was uninjured. People started questioning him about the rape. For at least 10 minutes, defendant "was in complete denial of it." After Jaron and the others "started piecing little bits and pieces together in front of him," Jaron sensed defendant "had a feel of guilt on his mind," and he admitted raping Y.G. Defendant's backpack was in the trunk area of the Explorer. The group had defendant empty it on the hood of the vehicle. Inside were a black shirt and sunglasses. A knife was on the seat where defendant was sitting. When Jaron asked why defendant committed the rape, defendant said he was "just twacked out," meaning he was on whatever drugs he could find. He also said he did not know why he did it.
Jaron testified that nobody "physically did harm to" defendant when he admitted the rape. Defendant was touched, however, when one person demonstrated on him how he held the knife to Y.G.'s throat. Jaron did not feel defendant was forced to confess. As far as he could recall, nobody threatened to kill defendant if defendant did not confess. He did not confess until the demonstration with the knife, however.
Jaron and Chauncey walked back up to the house, because everyone was talking about taking defendant somewhere instead of straight to the sheriff's department. Jaron was concerned they were planning to harm defendant, and he and Chauncey did not want to be a part of that. Thomas remained with the group. About 10 minutes later, Jaron and Brittany left to go to the home of Jaron's parents. The car that the group was in was just leaving. Jaron and Brittany came across two deputies at the corner of Antelope Lane and George Smith Road. Jaron informed them that they had gotten a confession from defendant and where defendant was located. The deputies asked them to go back up to the S. house, which they did.
Around 3:15 a.m. on July 30, Fresno County Sheriff's Deputy Larralde was searching for a cell phone, at the request of Detective Isaac, in the area of the intersection of George Smith Road and Antelope Lane. He had been searching unsuccessfully for about 20 minutes when a van containing two or three people approached. One of its occupants — possibly Jaron — said they had information about the case. They said they knew who committed the rape and had items the suspect used, and they directed Larralde to the S. home. There, Larralde was given a black bag that contained sunglasses and other items. Larralde was also told there were more items in the Ford Explorer, from which he then seized a backpack.
All references to the sheriff's department, deputies and detectives are to the Fresno County Sheriff's Department.
Sheriff's Deputy Little, who had been assisting Larralde in the cell phone search, was getting ready to go to the S. house when a white vehicle drove up. Two females were in the front seat, while two males were in the backseat. All four quickly exited the vehicle. One female in particular was very animated and excited, and started telling Little that they got the rapist. She kept trying to play a recording from a cell phone. When Little asked who they had, she said, "Spencer," and pointed to defendant, who was one of the four people who had gotten out of the car.
This vehicle was driving south on George Smith Road, from the direction of Highway 180. It did not appear to have come from the residence.
Little told defendant to get in Little's patrol truck. Defendant walked toward the patrol truck, and Little followed. Little did not notice defendant limping or anything wrong. At the truck, Little checked defendant for weapons, then asked him to have a seat in the vehicle. Little then closed the door and returned to the female — Alicia N. — to figure out what she was talking about. Alicia, who had been the front seat passenger, played the cell phone recording several times for Little. It was difficult to understand, particularly with Alicia being so excited. Little took possession of the cell phone.
After taking Alicia's statement, Little had defendant step out of the truck. Little handcuffed him. At that time, Little noticed a spot of blood on defendant's shirt sleeve that appeared consistent with him wiping the side of his face with the shirt. There was a cut or scrape on the left side of his face. When Little asked what happened, defendant said he fell down while he was walking. He declined medical attention.
With defendant handcuffed in the back of the patrol truck, Little drove to the S. house, which was about 100 yards west of his location. Little went inside, conferred with Larralde, and took a statement from Chauncey. At the request of detectives, Little then drove defendant, who was detained, to sheriff's headquarters in downtown Fresno. It was a 30- to 45-minute drive, and defendant slept through most of it.
Once at headquarters, Little observed scrapes on defendant's arm. Little asked if defendant did it when he fell, and defendant replied affirmatively. Little then asked if the people who brought defendant to Little had done it to him. Defendant said, "Yes." Little again asked if defendant wanted medical attention. Defendant said, "No." Little then turned him over to detectives.
Isaac advised defendant of his rights, and he stated he understood them. Isaac and her partner, Detective McCormick, then interviewed him. Although Isaac observed some blood and scrapes, defendant appeared coherent and able to answer questions. During the interview (an audio-video recording of which was played for the jury), defendant related that his parents found "weed" in his house and questioned whether it was his, so he got mad and left. He went over to his friend's house and was putting stuff in the friend's car at the end of the driveway, when he saw the cleaning lady pull up. He decided to go up and rape her. He did not know what made him decide to do that. Defendant said he went up as she was vacuuming, put his hand over her mouth, and showed her a knife. He had a shirt over his face and sunglasses on. He had seen her once before but did not know her name. He told her to stay quiet, then took her over by the bed and told her to take everything off. When she complied, he put his penis in her vagina. He did not wear a condom. He put his fingers in her vagina, but not in her anus. He was high on marijuana at the time. Afterward, he left. He took her phone so she would not be able to call someone. He threw it in a field as he was walking on George Smith Road.
After the interview, defendant identified a black T-shirt Larralde had seized as the shirt he wore over his face to hide his identity. Little turned Alicia's cell phone over to Isaac, who listened to the recording. She did not hear any type of confession or statement from defendant on the recording. The recording was poor quality, and Isaac could not make out much of what was said. All she heard was "extremely loud and yelling."
Semen was found on vaginal swabs taken from Y.G. DNA analysis showed defendant was a major contributor to the sperm cell fraction of the vaginal swab, while Y.G. was a minor contributor. A DNA profile that was consistent with that of Y.G. was found on penile swabs taken from defendant. Y.G. was a minor contributor to the mixture of DNA recovered from defendant's right-hand fingernail scrapings.
The chance that a person unrelated to defendant would share the same profile was approximately one in 200 quadrillion.
DISCUSSION
We have thoroughly studied the briefing filed on defendant's behalf and, at the outset, make the following pertinent observations.
"[O]ur review on a direct appeal is limited to the appellate record. [Citations.]" (People v. Barnett (1998) 17 Cal.4th 1044, 1183.) Stated another way, " 'Appellate jurisdiction is limited to the four corners of the record on appeal . . . .' [Citation.]" (People v. Waidla (2000) 22 Cal.4th 690, 743.) When a defendant's claim "is dependent upon evidence and matters not reflected in the record on appeal," we will not consider it on appeal. (People v. Barnett, supra, at p. 1183.)
The absence of evidence on a point does not constitute actual evidence of the contrary point. (See People v. Jennings (1991) 53 Cal.3d 334, 375.)
It is a defendant's burden to develop a record sufficient to ensure review of his or her claim. (People v. Carter (2003) 30 Cal.4th 1166, 1215.) Mere speculation does not meet this burden, nor does it furnish grounds to reverse a criminal conviction.
An assertion or assumption by counsel is not evidence of a fact, and it is improper for counsel knowingly to misrepresent the law or the state of the record. (Bus. & Prof. Code, § 6068, subd. (d); see Mammoth Mountain Ski Area v. Graham (2006) 135 Cal.App.4th 1367, 1374; Rules Prof. Conduct, rule 3.3(a).)
Further references to rules are to the State Bar Rules of Professional Conduct unless otherwise stated.
A requirement, as to any particular issue, that this court review the entire record does not mean we must comb that record to ascertain the portions on which a defendant relies. (See People v. Smith (2015) 61 Cal.4th 18, 48.) Nor does it mean a defendant is excused from providing a coherent summary of the facts of the case.
Because the briefing filed on defendant's behalf so frequently omitted necessary portions of, or misstated or misrepresented, the record, our factual and procedural summaries are more detailed and lengthier than they otherwise would be. This was necessary to achieve completeness and accuracy.
Defendant's opening brief was not filed until more than three years after defendant's notice of appeal. Defendant's briefing frequently did not comply with California Rules of Court, rule 8.204(a)(1)(B) and (C).
We will not consider issues or new theories raised for the first time in a reply brief or at oral argument (People v. Carrasco (2014) 59 Cal.4th 924, 990; People v. Taylor (2004) 119 Cal.App.4th 628, 642-643), or legal arguments lacking citation of authorities (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Dougherty (1982) 138 Cal.App.3d 278, 282).
Just because an issue is based on a constitutional claim does not automatically mean it can be raised for the first time on appeal. (See, e.g., People v. Nelson (2016) 1 Cal.5th 513, 534; People v. Fuiava (2012) 53 Cal.4th 622, 731; People v. Zamudio (2008) 43 Cal.4th 327, 353; People v. Chatman (2006) 38 Cal.4th 344, 363.) " ' " ' "No procedural principle is more familiar . . . than that a constitutional right," or a right of any other sort, "may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." ' " ' [Citation.]" (People v. Harrison (2013) 57 Cal.4th 1211, 1229.)
As for defendant's numerous challenges regarding his defense counsel, rarely is there only one reasonable strategy for a defense attorney to adopt when representing a client in a criminal case. That other strategies might exist, or might appear in hindsight potentially to have stood a better chance at success, does not make the strategy employed unreasonable or counsel's performance deficient. (See Maryland v. Kulbicki (2015) 577 U.S. ___, ___ [136 S.Ct. 2, 4]; People v. Jennings, supra, 53 Cal.3d at p. 379.)
As for the parameters of appellate review of a trial court, " '[i]t is a basic presumption indulged in by reviewing courts that the trial court is presumed to have known and applied the correct statutory and case law in the exercise of its official duties. [Citations.]' [Citation.]" (People v. Nance (1991) 1 Cal.App.4th 1453, 1456.) " '[A]n order is presumed correct; all intendments are indulged in to support it on matters as to which the record is silent, and error must be affirmatively shown.' [Citation.] We must 'view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence.' [Citation.]" (People v. Carpenter (1999) 21 Cal.4th 1016, 1046.) Where a question of law is concerned, the general rule is that if the ruling or decision of the trial court is correct, it will not be disturbed merely because given for a wrong reason. (People v. Zapien (1993) 4 Cal.4th 929, 976; People v. Bracey (1994) 21 Cal.App.4th 1532, 1542.)
Finally, to the extent we do not expressly discuss any point raised in defendant's briefs, we have considered and rejected it. (See People v. Clair (1992) 2 Cal.4th 629, 691, fn. 17; People v. Sully (1991) 53 Cal.3d 1195, 1252.)
I
ALLEGED CONFLICT OF INTEREST AND PROSECUTORIAL MISCONDUCT
Defendant contends the deputy attorney general who prosecuted the case had a fatal conflict of interest such that structural error resulted. Related to this are claims of prosecutorial misconduct. We conclude that to the extent the issues are cognizable on appeal, defendant has not established cause for reversal. A. Background
Insofar as the record on appeal shows, prosecution in this case was initiated by complaint filed on August 2, 2011. The matter was prosecuted by the Fresno County District Attorney's Office, which was then headed by Elizabeth A. Egan.
On October 10, 2011, Roger D. Wilson, then defendant's attorney, wrote a letter to Egan in which he stated that while he did not believe Egan was personally biased against defendant, he was concerned about the posture taken by the district attorney's office in asking for an increase in bail and making no offer less than life in prison. Wilson believed this position was based, at least in part, on a desire to avoid "any hint of favoritism" toward defendant because his father was the area commander of the California Highway Patrol (CHP). The letter concluded: "Consequently, I am respectfully requesting that you voluntarily recuse your office from prosecuting this case and transfer the prosecution to the California Attorney General's Office. By taking this action, your office can avoid any appearance of impropriety with respect to the prosecution of the son of the Area Commander of the California Highway Patrol, and also maintain the professional working relationship that your office presently enjoys with Captain Scarber."
On November 23, 2011, the Attorney General's Office agreed to prosecute the case. On November 28, 2011, several months prior to the preliminary hearing, the case was assigned to then-Deputy Attorney General Le Mon (hereafter "the prosecutor").
No formal motion for recusal (§ 1424) was ever filed. The record contains evidence, in the form of a declaration executed by defendant's father in support of defendant's motion for a new trial, that the father and Egan had a romantic relationship in the late 1990's, and that it ended badly. The record does not reveal what effect, if any, this alleged relationship had on the decision to turn the case over to the Attorney General.
On appeal, defendant chides the Attorney General for failing to recognize that the district attorney's office did in fact recuse itself, and instead stating that the Attorney General's office agreed it would prosecute the case. For practical purposes, the effect of what occurred was the recusal of the district attorney's office, and the Attorney General does not dispute that. The settled statement obtained pursuant to this court's order in response to defendant's application therefor, however, expressly states that "the Attorney General's Office agreed to prosecute the case." It does not state that the district attorney's office recused itself. The Attorney General was precise concerning the actual contents of the record.
On April 5, 2012, Wilson was relieved as counsel for defendant, and Antonio Alvarez substituted in as attorney of record. Alvarez represented defendant throughout trial, but was permitted to withdraw, on defendant's motion, on April 12, 2013. On April 25, 2013, Charles Magill became defendant's attorney of record.
Attorney Laura M. Guzman Magill acted as cocounsel, appearing with defendant at times and submitted pleadings on his behalf. She passed away during the pendency of the posttrial proceedings. For clarity, references to "Magill" encompass pleadings filed or arguments made by either or both Charles Magill and Laura M. Guzman Magill, without differentiation.
On November 22, 2013, Magill filed a motion for new trial and motion for mistrial on defendant's behalf. The grounds asserted in support of a new trial were ineffective assistance of trial counsel, newly discovered evidence, and prosecutorial misconduct for failure to disclose Brady material. The motion for mistrial was predicated on trial having proceeded in defendant's absence.
Brady v. Maryland (1963) 373 U.S. 83 (Brady).
The circumstances surrounding defendant's absence will be discussed in greater detail, post.
On December 5, 2013, Magill filed an amended motion for new trial and mistrial. The same grounds were raised. In addition, defendant sought dismissal for Brady violations. In the amended motion, as in the original motion, Magill represented that he was aware the prosecutor previously was employed as a member of the Fresno County District Attorney's Office, and that she currently was married to Carl Monopoli, a member of that office. At no time, either in his written pleadings or his argument in support of the motion, did he assert she had an ongoing conflict of interest. B. Analysis
The closest Magill came was to accuse the government of being aware of the "nefarious" nature of Thomas's involvement in the case and intending to suppress his involvement in a "forced" confession. Magill noted the government was represented by an attorney "who formerly worked for the District Attorney's Office, is married to a current Deputy District Attorney, and was pregnant with the Deputy District Attorney's child."
1. Conflict of interest and exercise of prosecutorial discretion
Defendant contends on appeal the prosecutor had a conflict of interest, based on her marriage to an attorney in the Fresno County District Attorney's Office, that permeated proceedings and thereby created structural defects such that reversal is required. He says that when Egan recused the entire district attorney's office, it constituted a concession that no attorney in that office could give defendant a fair trial and/or exercise prosecutorial discretion evenhandedly, yet no procedures were put in place to screen the prosecutor, erect an ethical wall between the district attorney's and Attorney General's offices, or prohibit communication about the case between the prosecutor and her spouse.
Defendant says the prosecutor never disclosed the conflict on the record or obtained a waiver from defendant. He also claims the prosecutor exercised her discretion in a manner that deprived defendant of his right to a fair trial by (1) not investigating Thomas, Alicia, and the others to whom defendant initially confessed; the firing of a shot at defendant's father on December 13, 2012; or a threatening note left on the gate of defendant's residence on December 11, 2012; (2) failing to employ methods of investigation necessary to protect defendant's constitutional rights; (3) not charging any of the group to whom defendant initially confessed, based on the physical abuse defendant suffered at their hands; (4) failing to call Thomas and Alicia as witnesses; and (5) not granting immunity to Thomas and Alicia.
Not one of these claims was made at trial. Defendant cites no case, and our own research has revealed none, in which an appellate court has ruled on a claim of the type asserted here on direct appeal without the issue having first been raised in the lower court. (See, e.g., People v. Gamache (2010) 48 Cal.4th 347, 361-366 & cases cited; People v. Vasquez (2006) 39 Cal.4th 47, 52-53, 57; People v. Breaux (1991) 1 Cal.4th 281, 293, 294-295; People v. Hamilton (1988) 46 Cal.3d 123, 138-140; People v. Choi (2000) 80 Cal.App.4th 476, 482-483; People v. Lopez (1984) 155 Cal.App.3d 813, 827-828; see also Young v. United States ex rel. Vuitton et Fils S.A. (1987) 481 U.S. 787, 792.)
Contrary to defendant's apparent belief, the mere mention of the prosecutor's marriage and previous employment does not constitute raising the issue.
All but one of the foregoing cases deal with recusal of a district attorney's office, or one or more attorneys in such an office, pursuant to section 1424. Section 1424 provides in part: "(a)(1) Notice of a motion to disqualify a district attorney from performing an authorized duty shall be served on the district attorney and the Attorney General at least 10 court days before the motion is heard. . . . The district attorney or the Attorney General, or both, may file affidavits in opposition to the motion and may appear at the hearing on the motion . . . . The judge shall review the affidavits and determine whether or not an evidentiary hearing is necessary. The motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial. An order recusing the district attorney . . . may be reviewed by extraordinary writ or may be appealed by the district attorney or the Attorney General. . . . If the motion is brought at or before the preliminary hearing, it may not be renewed in the trial court on the basis of facts that were raised or could have been raised at the time of the original motion."
Clearly, section 1424 contemplates that a recusal motion must be brought in superior court in the first instance. (See generally Packer v. Superior Court (2014) 60 Cal.4th 695, 698.)
Defendant baldly asserts that section 1424 and cases construing it "do not contemplate the need to recuse a Deputy Attorney General or possibly, the entire Attorney General's office." We fail to see why the standards or analysis should be different simply depending on whether the trial prosecutor at issue is a deputy district attorney or a deputy attorney general. (See Gov. Code, § 12550.) In either instance, it is the protection of prosecutorial impartiality that is at issue. (See People v. Hamilton, supra, 46 Cal.3d at p. 140.)
Defendant appears to contend he may raise the issue for the first time on appeal, because new rules for the conduct of criminal prosecutions apply retroactively to all nonfinal cases (People v. Song (2004) 124 Cal.App.4th 973, 982), and, he claims, People v. Dekraai (2016) 5 Cal.App.5th 1110 (Dekraai) announced such a rule regarding recusal of a district attorney's office. To the contrary, Dekraai applies existing law to an unusual fact pattern. That means the opinion meets the standards for certification for publication. (Cal. Rules of Court, rule 8.1105(c)(2).) It does not mean it announces a new rule. (See Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 712.)
Defendant does not explain how, if section 1424 and cases concerning district attorney recusal are somehow inapplicable where the prosecutorial agency is the Attorney General's Office, Dekraai nevertheless applies. Moreover, we cannot help but note that the appellate court in Dekraai had before it an "extensive" record resulting from two evidentiary hearings in which the trial court heard from 39 witnesses. (Dekraai, supra, 5 Cal.App.5th at p. 1114.)
We conclude defendant's failure to raise the prosecutor's alleged conflict and abuse of prosecutorial discretion in the trial court precludes him from raising those issues on appeal. (See People v. Lewis (2001) 26 Cal.4th 334, 375; People v. Clark (1993) 5 Cal.4th 950, 988, fn. 13, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 (Doolin).) That being the case, we decline to take judicial notice, as defendant asks us to do, of a certified copy of the prosecutor's marriage certificate and an attorney profile from the California State Bar showing that in November 2016, the business address of an attorney with the same name as the prosecutor's spouse was the Fresno County District Attorney's Office. Although it appears the documents fall within the provisions of Evidence Code sections 452 and 459, only relevant material may be noticed. (People v. McKinzie (2012) 54 Cal.4th 1302, 1326, disapproved on another ground in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.) Because the documents relate to an issue that is not properly before us, they are not relevant.
We recognize that we permitted defendant to obtain a settled statement with respect to the matter. This does not mean the overall issue is properly before us, however. "[T]he purpose of a settled statement is to provide the appellate court with a record of trial court proceedings for which there is no formal contemporary record . . . . Consistent with this limited purpose, the settled statement is 'intended to ensure that the record transmitted to the reviewing court preserves and conforms to the proceedings actually undertaken in the trial court,' not to 'allow parties to create proceedings, make records, or litigate issues which they neglected to pursue earlier.' [Citations.]" (People v. Anderson (2006) 141 Cal.App.4th 430, 440; see People v. Tuilaepa (1992) 4 Cal.4th 569, 585, affd. sub nom. Tuilaepa v. California (1994) 512 U.S. 967 & disapproved on another ground in People v. Harris (2008) 43 Cal.4th 1269, 1311.)
Moreover, taking judicial notice would contravene the general rule that judicial notice should not be taken by an appellate court if the matter was not presented to and considered by the trial court in the first instance. (See People v. Peevy (1998) 17 Cal.4th 1184, 1208, fn. 4; People v. Hardy (1992) 2 Cal.4th 86, 134.) "Such a rule prevents the unfairness that would flow from permitting one side to press an issue or theory on appeal that was not raised below. [Citation.]" (People v. Hardy, supra, at p. 134.) " '[A]n appellate court generally is not the forum in which to develop an additional factual record.' [Citations.]" (People v. Castillo (2010) 49 Cal.4th 145, 157.) Although Code of Civil Procedure section 909 and California Rules of Court, rule 8.252 permit a reviewing court to make, in limited circumstances, factual determinations contrary to or in addition to those made by the trial court, "because this is a criminal case and because [defendant] did not waive his right to jury trial, we cannot take additional evidence on appeal. [Citation.]" (People v. Hayes (1992) 3 Cal.App.4th 1238, 1246, fn. 4; accord, People v. Pena (1972) 25 Cal.App.3d 414, 421, disapproved on another ground in People v. Duran (1976) 16 Cal.3d 282, 292.)
Finally, assuming there might exist some unusual circumstances that would permit issues of the type defendant now argues to be raised for the first time on appeal, the record before us would be insufficient — even with judicial notice of the proffered documents — to permit meaningful review of defendant's claims. (See People v. Waidla, supra, 22 Cal.4th at pp. 743-744.) We simply do not have the necessary information or know what might have been developed had the issue been litigated below. Defendant essentially seeks to have us presume the existence of a fatal conflict based on the prosecutor's past employment and marital relationship, and to assume the prosecutor violated her ethical duties or that sufficient ethical "walls" or "screens" could not be or were not erected. We will not make such assumptions from a silent record. (See People v. Jennings, supra, 53 Cal.3d at p. 375; Melcher v. Superior Court (2017) 10 Cal.App.5th 160, 163, 170; People v. Hernandez (1991) 235 Cal.App.3d 674, 680-681.)
In conjunction with the settled statement, the prosecutor executed a declaration in which she stated she did not recall any discussions, motions, or arguments made in court regarding an " 'ethical wall' " being erected. Her declaration does not preclude the possibility disclosure was made, and discussions had, in chambers or off the record.
Defendant admits he has no way of knowing whether the prosecutor and her spouse actually discussed defendant's case, but says "[s]uch an inquiry would be 'repulsive to the notions of privacy surrounding the marriage relationship.' " His cited authority is Griswold v. Connecticut (1965) 381 U.S. 479, in which the United States Supreme Court struck down as unconstitutional a state law forbidding the use of contraceptives. Griswold does not establish any kind of blanket prohibition against questioning a married couple about any of their communications; rather, what the high court found "repulsive" was the notion of allowing police "to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives[.]" (Id. at pp. 485-486.) Although California respects the privacy of the marital relationship (Evid. Code, §§ 970-971, 980), such privileges are not absolute (see People v. Dorsey (1975) 46 Cal.App.3d 706, 716-717; Frey v. Superior Court (1965) 237 Cal.App.2d 201, 203-204). We cannot know whether the prosecutor and/or her spouse would have waived any applicable privileges had they been questioned concerning their communications, if any, about this case. The point is, they were not asked, because the issue was never raised and litigated.
2. Unethical conduct
In a related claim, defendant contends the proceedings were fundamentally unfair due to the unethical conduct of the prosecution team. Defendant bases this claim on rule 3.8 and its Comment. The rule states, in pertinent part:
"The prosecutor in a criminal case shall: [¶] . . . [¶]
"(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; [¶] . . . [¶]
"(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused . . . ; and
"(e) exercise reasonable care to prevent persons under the supervision or direction of the prosecutor, including . . . persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under rule 3.6." (Rule 3.8.)
Rule 3.6 concerns trial publicity. With some exceptions, it prohibits "[a] lawyer who is participating or has participated in the investigation or litigation of a matter" from "mak[ing] an extrajudicial statement that the lawyer knows or reasonably should know will (i) be disseminated by means of public communication and (ii) have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter." (Rule 3.6(a).)
The current rules and comments contain asterisks that identify words or phrases defined in rule 1.0.1. We have omitted the asterisks for ease of readability.
The Comment to rule 3.8 provides, in pertinent part:
"[1] A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. This rule is intended to achieve those results. All lawyers in government service remain bound by rules 3.1 [concerning meritorious claims and contentions] and 3.4 [concerning fairness to opposing party and counsel]. [¶] . . . [¶]
"[3] The disclosure obligations in paragraph (d) are not limited to evidence or information that is material as defined by Brady[, supra,] 373 U.S. 83 . . . and its progeny. For example, these obligations include, at a minimum, the duty to disclose impeachment evidence or information that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony on which the prosecution intends to rely. . . . Nothing in this rule is intended to be applied in a manner inconsistent with statutory and constitutional provisions governing discovery in California courts. . . . [¶] . . . [¶]
"[5] Paragraph (e) supplements rule 3.6, which prohibits extrajudicial statements that have a substantial likelihood of prejudicing an adjudicatory proceeding. . . ."
Rule 3.8 is the successor to former rule 5-110, which was adopted effective May 1, 2017, and amended, with respect to paragraph (d) of the rule and related portions of the Comment (previously, the Discussion), effective November 2, 2017. For purposes of the issues defendant raises on this appeal, there is no material difference between rule 3.8 and former rule 5-110 as amended.
By separate order, we take judicial notice of the Supreme Court of California Administrative Order 2017-04-26, filed May 1, 2017 ("ORDER RE REQUEST FOR APPROVAL OF AMENDMENTS TO RULE 5-110 AND RULE 5-220 OF THE RULES OF PROFESSIONAL CONDUCT OF THE STATE BAR OF CALIFORNIA"); and Supreme Court of California Administrative Order 2017-11-01, filed November 2, 2017 ("ORDER GRANTING EXPEDITED APPROVAL OF PROPOSED AMENDMENTS TO RULE 5-110 OF THE CALIFORNIA RULES OF PROFESSIONAL CONDUCT").
Defendant says the prosecution team's conduct was unethical and deprived him of procedural justice because, following recusal of the district attorney's office, (1) the Attorney General never established a conflict screen to ensure that any prosecutor involved in the case did not have a conflict; (2) the Attorney General assigned a deputy attorney general who in fact had a conflict based on her prior employment and marriage; (3) the deputy attorney general never disclosed the conflict and did not address it when it was raised in the new trial motion; (4) the Attorney General had imputed knowledge of the conflict, but took no steps to rectify the procedural injustice; and (5) no procedures or regulations were put in place to verify that the prosecutor assigned to the case did not have any ongoing conflict, and to monitor contact between members of the recused office and the assigned prosecutor in order to protect defendant's rights.
Defendant did not raise any of these issues at trial. He claims, however, that he is to be given the benefit of developments in the law — including new ethical rules — that occurred while his appeal was pending. Defendant cites no authority addressing the retroactive application of new ethical rules, and we are not convinced they apply to the conduct of trials that were completed before the rules went into effect. Even if defendant is correct in this regard, however, the record on appeal is insufficient to permit us to address his claims in a meaningful manner. Defendant appears to expect us to make assumptions as to what occurred or was known or disclosed based on a silent record. It would be improper for us to do so. Accordingly, his claims fail.
We have examined several cases addressing retroactivity in criminal cases. In each instance, the trial record was adequate to permit resolution of the issue on appeal. (See, e.g., Danforth v. Minnesota (2008) 552 U.S. 264, 267 [admission at trial of videotaped interview of victim, who did not testify, challenged on confrontation clause grounds; issue was retroactivity of subsequent holding in Crawford v. Washington (2004) 541 U.S. 36]; Teague v. Lane (1989) 489 U.S. 288, 292-294 [after prosecutor exercised peremptory challenges to excuse African-American prospective jurors, defendant claimed denial of fair cross-section of community; issue was retroactivity of subsequent holding in Batson v. Kentucky (1986) 476 U.S. 79]; Griffith v. Kentucky (1987) 479 U.S. 314, 316, 317-320 [prosecutors used peremptory challenges to excuse all African-American prospective jurors in two cases; equal protection claim raised at trial in first case, and representative cross-section and right to impartial jury claims raised in other case; issue was retroactivity of holding in Batson]; People v. Ashmus (1991) 54 Cal.3d 932, 991 [victim-impact evidence admitted at penalty phase of trial despite United States Supreme Court authority holding such evidence was inadmissible per se; new United States Supreme Court authority overruling prior cases applied retroactively], abrogated on another ground in People v. Yeoman (2003) 31 Cal.4th 93, 117; People v. Song, supra, 124 Cal.App.4th at pp. 980, 981-982 [admission of statements by defendant's codefendants to police challenged at trial as violative of Bruton v. United States (1968) 391 U.S. 123 & People v. Aranda (1965) 63 Cal.2d 518; on appeal, Crawford held to apply retroactively].)
3. Prosecutorial misconduct
Primarily relying again on rule 3.8 and its predecessor, rule 5-110, defendant contends the prosecutor committed misconduct by denying him procedural justice in that she (1) minimized the harm defendant suffered while relying on the actions of those who inflicted it; (2) made no offer of protection to defendant or his family despite ongoing threats against them; (3) failed to exercise prosecutorial discretion fairly by not investigating the actions of the people to whom defendant initially confessed such as Thomas and Alicia, the shot fired at defendant's father, or the threatening note left at defendant's home the night before he was to testify; not employing methods of investigation necessary to protect defendant's constitutional rights; not bringing charges against the people who accosted defendant and obtained his initial confession; not calling Thomas or Alicia as witnesses; and not granting Thomas or Alicia immunity so as to compel their testimony; (4) failed to make reasonable efforts to assure defendant was advised of his rights, pursuant to Miranda v. Arizona (1966) 384 U.S. 436, by the civilians to whom defendant initially confessed and by Little, who took defendant into custody; (5) failed to produce impeachment evidence — specifically, sheriff's department dispatch records — in a timely manner; (6) failed to correct testimony of prosecution witnesses that was shown to be false or misleading based on the dispatch records; and (7) failed to take action when Egan discounted the relevance of the recusal of the district attorney's office in the press.
" 'A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it "infects the trial with such unfairness as to make the conviction a denial of due process." [Citations.] In other words, the misconduct must be "of sufficient significance to result in the denial of the defendant's right to a fair trial." [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." [Citations.]' [Citations.]" (People v. Clark (2011) 52 Cal.4th 856, 960.) With respect to argument to the jury, " ' " 'a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.]' " ' " (People v. Hill (1998) 17 Cal.4th 800, 819.)
" 'To preserve a claim of prosecutorial misconduct for appeal, a defendant must object and seek an admonition if an objection and admonition would have cured the harm.' [Citation.] The objection must be made on the same ground upon which the defendant now assigns error. [Citation.]" (People v. Redd (2010) 48 Cal.4th 691, 734.) "A failure to timely object and request an admonition will be excused if doing either would have been futile, or if an admonition would not have cured the harm. [Citation.]" (People v. Linton (2013) 56 Cal.4th 1146, 1205.)
Defendant failed timely to object, on grounds of prosecutorial misconduct, to any of the alleged misconduct he now asserts, with exception of the failure to disclose the dispatch records. He makes no attempt to show such objections would have been futile. Instead, he claims he was excused from objecting because of developments in the law occurring after trial.
In his motion for a new trial, defendant asserted prosecutorial misconduct based on the fact Thomas was not called as a witness. No contemporaneous objection was made, however.
We are not persuaded. Defendant's claim is one of prosecutorial misconduct. Although violation of an ethical rule may be evidence of misconduct, we are not cited to any case that suggests such a violation excuses a lack of objection. Based on the law and rules that were in effect at the time of trial, each instance of purported misconduct defendant now raises could have been brought to the trial court's attention and addressed in a timely manner. (See, e.g., Bus. & Prof. Code, § 6068, subd. (d); Morrow v. Superior Court (1994) 30 Cal.App.4th 1252, 1254; former rule 5-220.) Because it was not, the record is — once again — insufficient for us to determine whether the prosecutor committed misconduct.
We note that defendant's repeated claims of a denial of "procedural justice" adopt that phrase from Comment [1] to rule 3.8, not the rule itself. "The comments are not a basis for imposing discipline but are intended only to provide guidance for interpreting and practicing in compliance with the rules." (Rule 1.0(c).)
A prime example is defendant's claim about Egan's purported statement to the press. The record on appeal contains no evidence of any such statement. Additionally, not every statement to the press by a prosecutor constitutes misconduct. (See People v. Marshall (1996) 13 Cal.4th 799, 863-864.)
With respect to defendant's claims concerning failure to bring charges and grant immunity, we note that " '[t]he prosecutor ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek.' [Citation.]" (People v. Owens (1997) 59 Cal.App.4th 798, 801; accord, People v. Dennis (1998) 17 Cal.4th 468, 505.) Moreover, "[t]he grant of immunity is an executive function, and prosecutors are not under a general obligation to provide immunity to witnesses in order to assist a defendant. [Citations.]" (People v. Williams (2008) 43 Cal.4th 584, 622; see People v. Masters (2016) 62 Cal.4th 1019, 1051-1052.)
We will assume defendant did raise claims of failure to disclose and to correct false or misleading testimony as soon as was practicably possible; hence, those claims have not been forfeited. Defendant contends the prosecutor committed misconduct by failing to disclose, in a timely manner, sheriff's department dispatch records for the time surrounding Little's arrival in the area and his contact with those to whom defendant initially confessed. Defendant says the failure to disclose these records prevented him from vigorously impeaching "the officer's" testimony. He asserts: "The whereabouts of each officer, and when those officers were at those locations in relationship to the activity of the vigilantes [defendant's term for the group of people to whom he initially confessed], was relevant to the issues associated with whether the vigilantes had the approval (tacit or otherwise) of law enforcement to confront [defendant], and whereby that confrontation ultimately resulted in physical and psychological harm to him."
Defendant fails to specify which officer. We presume he means Little and/or Larralde.
Defendant says the prosecutor's failure to produce the information, as required by rule 3.8(d) and Comment [3] to the rule, represented a Brady violation. He further says Brady's materiality requirement need not be met, however, because the prosecutor had an ethical duty to disclose the information. Defendant also claims the prosecutor committed misconduct by failing to take immediate measures, as required by Napue v. Illinois (1959) 360 U.S. 264 (Napue) and its progeny, to correct the testimony of prosecution witnesses that was shown by the dispatch records to be false and/or misleading.
"The federal due process clause prohibits the prosecution from suppressing evidence materially favorable to the accused. The duty of disclosure exists regardless of good or bad faith, and regardless of whether the defense has requested the materials. [Citations.] The obligation is not limited to evidence the prosecutor's office itself actually knows of or possesses, but includes 'evidence known to the others acting on the government's behalf in the case, including the police.' [Citation.]
"For Brady purposes, evidence is favorable if it helps the defense or hurts the prosecution, as by impeaching a prosecution witness. [Citations.] Evidence is material if there is a reasonable probability its disclosure would have altered the trial result. [Citation.] Materiality includes consideration of the effect of the nondisclosure on defense investigations and trial strategies. [Citations.] Because a constitutional violation occurs only if the suppressed evidence was material by these standards, a finding that Brady was not satisfied is reversible without need for further harmless-error review. [Citation.]
"[California's] reciprocal discovery statute independently requires the prosecution to disclose to the defense, in advance of trial or as soon as discovered, certain categories of evidence 'in the possession of the prosecuting attorney or [known by] the prosecuting attorney . . . to be in the possession of the investigating agencies.' (§ 1054.1.) Evidence subject to
disclosure includes . . . '[a]ny exculpatory evidence' (id., subd. (e)). Absent good cause, such evidence must be disclosed at least 30 days before trial, or immediately if discovered or obtained within 30 days of trial. (§ 1054.7.)" (People v. Zambrano (2007) 41 Cal.4th 1082, 1132-1133, disapproved on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.)
We will address defendant's Brady claim in more detail (and with some repetition) in conjunction with his challenge to the trial court's denial of his new trial motion, post. Suffice it to say, we find no reasonable probability earlier disclosure of the dispatch records would have altered the trial result. Accordingly, late disclosure did not render defendant's trial fundamentally unfair. (See People v. Hoyos (2007) 41 Cal.4th 872, 923, overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919-920 & People v. McKinnon (2011) 52 Cal.4th 610, 637, 641, 643.)
We recognize that "[p]rosecutorial misconduct does not require a showing of bad faith. [Citation.] Thus, in a typical claim of prosecutorial misconduct involving a prosecutor's presentation to the court or jury, there is no need to address the prosecutor's intent. But in the context of the prosecutorial misconduct claimed here, the only way the actions of the prosecutor can be shown to be deceptive or reprehensible [under state law] is if the prosecutor had intentionally withheld the [dispatch records] for strategic advantage. In the absence of claims for intentional misconduct, defendant would merely be repeating his Brady claim, since nondisclosure under Brady does not require a showing of the moral culpability or the willfulness of the prosecutor. [Citation.]" (People v. Hoyos, supra, 41 Cal.4th at p. 924, fn. 36.)
Nothing in the record before us suggests the prosecutor intentionally withheld the dispatch records for strategic advantage. Nor does defendant convince us that the evidence was exculpatory within the meaning of section 1054.1. Accordingly, we find no prosecutorial misconduct based on failure to earlier disclose the dispatch records, even taking into account rule 3.8(d) and Comment [3].
Defendant asserts: "Here, the [prosecutor] argued that the dispatch records were not Brady material. As such, it can be concluded that the Prosecutor never intended to produce the dispatch records." An argument something is not Brady material does not suggest an intent to withhold that item for strategic advantage.
" ' "Under well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents . . . ." ' [Citation.]" (People v. Charles (2015) 61 Cal.4th 308, 328; see Napue, supra, 360 U.S. at p. 269.) Mere discrepancies between witnesses' trial testimony and the dispatch records does not automatically render the testimony false or materially misleading, however. (See, e.g., People v. Charles, supra, 61 Cal.4th at pp. 327-328; People v. Avila (2009) 46 Cal.4th 680, 711-712; People v. Ochoa (1998) 19 Cal.4th 353, 429-430.)
In the present case, trial was held some 16 months after the events to which the testimony and dispatch records related. Given the passage of time, some memory loss and discrepancies were virtually assured.
In light of the foregoing, defendant fails to convince us the prosecutor committed misconduct. Were we to conclude otherwise, however, we would categorically declare the misconduct was harmless under either state law (see People v. Watson (1956) 46 Cal.2d 818, 836) or the federal constitutional standard of review (see Chapman v. California (1967) 386 U.S. 18, 24 (Chapman)), even if the alleged misconduct violated Napue (see United States v. Bagley (1985) 473 U.S. 667, 679, fn. 9). The evidence at trial was uncontradicted that Y.G. was raped at knifepoint and that defendant's DNA was found in her vagina shortly afterwards. The dispatch records could not possibly have called into question Y.G.'s testimony or the forensic evidence.
II
ALLEGED TRIAL COURT BIAS
Defendant contends that structural error occurred, because the trial judge was not impartial. We conclude defendant has forfeited all but one ground on which he bases his claim and, on that one remaining ground, his claim lacks merit. A. Grounds Allegedly Showing Probability of Actual Bias
Defendant argues the trial court became "indoctrinated" to the prosecutor's position that there were no threats, defendant confessed before being beaten, and defendant repeatedly refused medical attention and so was not badly injured. Defendant says by becoming indoctrinated, the trial court became biased and no longer impartial. He offers several instances in which, he says, the trial court was no longer impartial.
1. Failure to offer protection
The day before the defense was scheduled to start presenting its case (Dec. 11, 2012), Alvarez represented to the court that at 7:00 that morning, a care provider found a note on the gate to the Scarber property. The handwritten note read: "warned you bitch keep youre fucking mouth shut you know what will happen to you And youre family[.]" (Sic.) Alvarez stated he wanted defendant to address it during defendant's testimony, because it was relevant to his state of mind, and the pressure and fear he was experiencing in terms of why he made certain statements to law enforcement. Alvarez represented defendant had been threatened previously, and it appeared the threats to him were continuing. The prosecutor argued there was no foundation for the note because the writer was unknown and the note appeared to be geared toward a female — possibly defendant's mother, who had made statements to various people in court. The prosecutor further argued the note should be excluded under Evidence Code section 352, as there was no nexus between any threats defendant felt he was currently receiving and statements he made a year and a half earlier.
The court noted there were cases that touched on the issue of threats made to witnesses, and usually they involved the prosecution seeking to introduce evidence that one of their witnesses was threatened. The court found the precepts of Evidence Code sections 210 and 352 to be applicable, and it proposed to conduct further research and announce its ruling the next morning.
Defendant now faults the court for failing to take immediate steps to assure defendant that no witness in that courtroom would be threatened, and that defendant and his family would be protected. By failing to do so, defendant argues, the court failed to fulfill its duty to control the trial.
Defendant cites section 1044, which provides: "It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved."
2. Finding no evidence defendant's absence was involuntary
The next morning (Dec. 12, 2012), defendant, who was on surety bond status, failed to appear. After hearing from both counsel that morning and afternoon and the following morning, the court stated, in part: "In light of the offer of proof made by the People, and the lack of any satisfactory evidence to the Court on behalf of Defendant, the Court does conclude, and is concluding, that the Defendant has voluntarily absented himself from this proceeding."
Defendant challenges the court's ruling and denial of a related mistrial motion in a separate argument that we address, post. For purposes of his bias claim, he contends the trial court erred by finding the defense presented no evidence concerning why defendant absented himself. Defendant asserts he "had every reason to fear for his safety and for the safety of his family if he returned to the courthouse," and he points out that the court had listened to, and reviewed a transcript of, the recording made by Isaac on August 2, 2011, of information contained on Alicia's cell phone.
3. Other comments purportedly representing a manifestation of bias
Defendant says the trial court demonstrated bias and unfairness by praising the individuals who "physically and psychologically harmed" defendant, and by criticizing defendant for seeking redress with respect to purportedly legitimate claims of ineffective assistance of trial counsel. He also appears to say the trial court's praise of Jaron and the others is not supported by the record. Defendant points to statements the trial court made in the course of ruling on defendant's motion for a new trial, to wit: "In this motion considerable argument was made about the actions of [Thomas], [Jaron], and others who allegedly, and in all likelihood, assaulted and battered the Defendant. In effect, they solved the crime and produced a true account of the rape from the Defendant. . . ." The court also stated: "[T]his motion is, in effect, an effort to recant that confession. In this recantation, the Defendant has now belatedly chosen to blame those, i.e., [Jaron], [Thomas] and the others, who in reality solved the crime; to also blame the investigation; to blame the Prosecution; and to blame his own attorney." B. Analysis
" 'A criminal defendant has due process rights under both the state and federal Constitutions to be tried by an impartial judge.' [Citations.] '[W]hile a showing of actual bias is not required for judicial disqualification under the due process clause, neither is the mere appearance of bias sufficient. Instead, based on an objective assessment of the circumstances in the particular case, there must exist " 'the probability of actual bias on the part of the judge . . . [that] is too high to be constitutionally tolerable.' " ' [Citation.]" (People v. Peoples (2016) 62 Cal.4th 718, 788.)
Defendant did not raise any claim of judicial bias until after he was convicted and the case was set for hearing on a new trial motion. At that time, Magill sought to disqualify the trial judge pursuant to Code of Civil Procedure section 170.1. Magill's primary claim involved statements made by the trial court during a hearing that concerned Alvarez's request to withdraw as counsel. Of the claims of bias defendant now makes, the only one raised in the disqualification motion was the conclusion defendant voluntarily absented himself from trial.
Even then, the theory was not precisely the same as that propounded on appeal. In the disqualification motion, Magill asserted the judge "jumped to the conclusion that [defendant] voluntarily absented himself without an evidentiary hearing." On appeal, as we have stated, defendant complains of the trial judge's finding defendant presented no evidence his absence was involuntary.
With the possible exception of the foregoing ground, defendant has forfeited his claim of judicial bias. (People v. Elliott (2012) 53 Cal.4th 535, 572; People v. Samuels (2005) 36 Cal.4th 96, 114.) "Defendant may not go to trial before a judge and gamble on a favorable result, and then assert for the first time on appeal that the judge was biased. [Citations.]" (People v. Rodriguez (2014) 58 Cal.4th 587, 626.)
A failure to object will not preclude review when an objection would have been futile. (People v. Gomez (2018) 6 Cal.5th 243, 292; People v. Perkins (2003) 109 Cal.App.4th 1562, 1567.) Defendant makes no attempt to show futility here, but rather asserts — without any citation to authority — that "there are instances in which the Court of Appeal may consider an issue that was not raised, but should nonetheless be addressed."
Were we to find this to be an appropriate case in which to exercise our discretion in that regard (see People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6), we would conclude defendant's claim lacks merit. We reach the same conclusion with respect to the ground defendant arguably preserved.
In considering a claim of judicial bias, "[t]he role of a reviewing court 'is not to determine whether the trial judge's conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge's behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial. [Citation.]' [Citation.]" (People v. Harris (2005) 37 Cal.4th 310, 347.) "Mere expressions of opinion by a trial judge based on actual observation of the witnesses and evidence in the courtroom do not demonstrate a bias. [Citations.] Moreover, a trial court's numerous rulings against a party — even when erroneous — do not establish a charge of judicial bias, especially when they are subject to review. [Citations.]" (People v. Guerra (2006) 37 Cal.4th 1067, 1111-1112, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151.)
Applying the foregoing standards to the present case, it is readily apparent defendant has failed to establish he was deprived of his constitutional right to a fair and impartial tribunal. (See People v. Guerra, supra, 37 Cal.4th at p. 1112.)
III
ADMISSION OF D EFENDANT'S STATEMENTS
Defendant contends the trial court erred by finding his statements were voluntary. In this regard, he challenges the admission into evidence of his statements both to the civilians he terms "vigilantes" and to law enforcement. We conclude the statements were properly admitted, but if error occurred, it was harmless beyond a reasonable doubt. A. Background
The People moved, in limine, to admit defendant's statements that were made to Thomas, Jaron, Alicia, and detectives. The People asserted the statements were admissible under Evidence Code section 1220, there was no police coercion and the statements were voluntarily made.
At the hearing on the in limine motions, Isaac testified defendant was under arrest when brought to her office by Little. The interview began at approximately 5:50 a.m. on July 30, 2011, and was audio- and videotaped. Prior to the interview, Isaac observed some blood on defendant's head and knee. His hands were dirty, and he looked like he had been beaten up or in a fight. McCormick asked if he wanted medical attention, but he declined.
After Isaac turned on the recording equipment, she advised defendant of his Miranda rights, which she read from a department-issued card. Defendant stated he understood each of his rights. Isaac never obtained an express waiver, as defendant just started talking when she asked what was going on. During the interview, he mentioned that he had been beaten up. Her perception of him was that he was oriented and alert. She never had to repeat questions, and he appeared to answer appropriately. At the end of the interview, she told him they were going to take him to the hospital and have him checked out. She did not have him medically checked prior to interviewing him because he refused. Had he been in any distress, however, she would have called an ambulance. Isaac was aware defendant had turned 19 years old two or three weeks prior to the incident, and that, as far as she knew, he had not slept for approximately 20 hours. He also told her he had smoked marijuana. He had been in custody for about two hours before the interview commenced.
A recording of the interview, which was admitted into evidence, was played for the court.
Defendant stated he "got jumped a little bit ago" by about 10 people, which was why he had a gash in his head and "got cut up some."
Defendant refused medical treatment at the hospital, and the jail accepted him.
The defense presented no evidence.
The prosecutor argued that defendant was read his Miranda rights and stated he understood them, and there clearly was an implied waiver of rights. She argued there was no coercion or use of police tactics, and that defendant's physical condition was not such that he could not understand or waive his rights.
Alvarez argued the statement to detectives was involuntary under the totality of the circumstances and should be excluded. He pointed to the fact defendant had recently been beaten and had suffered injuries, including to his head; his young age; his recent marijuana use; and his lack of sleep. With respect to defendant's statements to Thomas, Jaron, and Alicia, Alvarez acknowledged that statements to civilian witnesses are not analyzed "in the same prism" as statements to law enforcement. Because the statements were the result of a beating that resulted in physical injury, however, he argued they were involuntary and should be excluded.
The court concluded it would be an abuse of discretion to exclude defendant's statements to the civilian witnesses "at this point," as the determination of those witnesses' testimony and credibility was an issue for the jury. The court stated, however, that "upon timely objection to any particular question, the Court will rule as best it can . . . ." As to defendant's statement to detectives, the court found an implied waiver by defendant of his rights. The court found no coercion in the interrogation and, with respect to defendant's physical condition, noted that he declined medical treatment. Accordingly, the court ruled the statements were admissible. B. Analysis
The due process clauses of the Fourteenth Amendment to the United States Constitution and article I, sections 7 and 15 of the California Constitution, "preclude[] the admission of any involuntary statement obtained from a criminal suspect through state compulsion. [Citations.]" (People v. DePriest (2007) 42 Cal.4th 1, 34; see People v. Massie (1998) 19 Cal.4th 550, 576; People v. Mickey (1991) 54 Cal.3d 612, 647.) Statements are involuntary "if they are the product of 'coercive police conduct.' [Citation.] We evaluate this question by looking to the totality of the circumstances to determine 'whether the defendant's " 'will has been overborne and his capacity for self-determination critically impaired' " by coercion.' [Citation.] The presence of police coercion is a necessary, but not always sufficient, element. [Citation.] We also consider other factors, such as the location of the interrogation, the interrogation's continuity, as well as the defendant's maturity, education, physical condition, and mental health. [Citation.]" (People v. Caro, supra, 7 Cal.5th at p. 492.)
Statements obtained in violation of Miranda are inadmissible in the prosecution's case-in-chief, but may be used by the prosecution for impeachment purposes. Involuntary statements may not be used against a defendant for any purpose. (People v. Caro (2019) 7 Cal.5th 463, 492.)
"When a challenge is mounted, the prosecution must prove that a confession is voluntary by a preponderance of the evidence . . . ." (People v. Benson (1990) 52 Cal.3d 754, 779.) "While the reviewing court independently decides whether the statements were involuntary, it accepts the trial court's factual findings if supported by substantial evidence." (People v. DePriest, supra, 42 Cal.4th at p. 35.)
1. Statements to civilians
Defendant first says his statements to Jaron, Thomas, and the other civilians were involuntary. He says the group did not obey the statutory authority for making a citizen's arrest, delayed unnecessarily in delivering him to a peace officer, used unreasonable force and unlawful threats — including gang and death threats — to obtain admissions from him, and, since they were acting as agents of law enforcement, had a duty to give him a Miranda advisement.
The Attorney General says defendant forfeited his challenge regarding statements made to the group of civilians, because he failed to object when testimony concerning those statements was elicited by the prosecutor during trial. (See, e.g., People v. Valdez (2012) 55 Cal.4th 82, 142-143.) Defendant responds by asserting there was no forfeiture based on the filing of a new decision allegedly supporting his position (presumably People v. Saldana (2018) 19 Cal.App.5th 432), the fact he is raising a constitutional claim, this court's authority to consider the issue based upon its importance and because it might be repeated, and the ubiquitous contention of ineffective assistance of counsel.
Contrary to his apparent belief, the cases defendant cites as authority for these propositions do not require us to address any and all claims not raised at trial merely because a constitutional issue is raised or a new opinion has been decided while his appeal has been pending. Moreover, we will not address an ineffective assistance of counsel claim based on grounds that were omitted from the opening brief. (See People v. Duff (2014) 58 Cal.4th 527, 550, fn. 9.)
"A confession may be found involuntary if extracted by threats or violence . . . ." (People v. McWhorter (2009) 47 Cal.4th 318, 347; see People v. Benson, supra, 52 Cal.3d at p. 778.) "But a statement is voluntary unless there is 'coercive police activity.' [Citations.]" (People v. Leonard (2007) 40 Cal.4th 1370, 1403.) In other words, some sort of state action is required. (Colorado v. Connelly (1986) 479 U.S. 157, 165.) Moreover, in order to render a confession involuntary, the coercive police conduct and the defendant's statement must be causally related. (People v. Williams (2010) 49 Cal.4th 405, 437.)
In the present case, defendant never contended at trial that Thomas and the others were acting as state agents. Accordingly, his claim of involuntariness with respect to the statements made to them has not been preserved for appeal. (See People v. Mayfield (1993) 5 Cal.4th 142, 172.) His statements to them were properly admitted pursuant to Evidence Code section 1220.
Nor was there evidence to support a claim of state action. Based on the recording from Alicia's phone, defendant claims the police knew what the civilians were doing. The defense transcription of the recording appended to defendant's new trial motion as exhibit H depicts Alicia saying, "We told the cops that we got you before they did" and an unknown voice saying, "Now you're here. Now you're here. The cops were telling (inaudible) they told us to look for you." Another version, marked for identification as defense exhibit K, contained the same statement by Alicia, but had the unknown voice saying, "Now you're here, the cops are telling us that . . . . Told us (inaudible) now you're here buddy." Ignored by defendant is the fact that neither version nor the recording itself was ever admitted into evidence.
Defendant also points to the dispatch records, which, he says, "provid[e] more than a curious connection." In arguing for a new trial, Magill posited a phantasmagorical conspiracy theory that defendant was beaten at the direction of law enforcement, the plan may have been to have him be the subject of an assassination attempt, and deputies may have assisted in procuring a false confession by defendant because they had a financial interest in a 250-plant marijuana farm on the S. property. Like the recording from the phone, the dispatch records were an exhibit to the new trial motion and were never admitted into evidence.
Since there was no evidence the civilians were police agents, their "conduct in speaking to defendant could not render defendant's responses involuntary under the due process clauses of the federal or the state Constitution." (People v. Mayfield (1997) 14 Cal.4th 668, 759, disapproved on another ground in People v. Scott, supra, 61 Cal.4th at p. 390, fn. 2.)
2. Statements to law enforcement
Defendant says that when Little took defendant into custody and returned him to the S. residence, where the civilians who had beaten defendant had congregated, it injected police coercion into the situation. Defendant also complains that Little never promised defendant effective police protection; left him in a patrol car, handcuffed and alone, at the S. residence; and, despite listening to the recording from Alicia's phone, never assured defendant the claim about law enforcement's involvement was not true. Defendant also asserts that he was in custody, if not when under control of the civilians, then certainly when he was delivered to Little, and so he should have been given his Miranda warnings.
In reality, the record does not establish Little realized there was such a statement. Little testified at trial that Alicia played the recording several times, but it was difficult to understand, particularly because Alicia was so excited. Little took possession of the cell phone and turned it over to Isaac.
Defendant claims that because nobody from the prosecution team ever took any action to distance law enforcement from the alleged statement on the recording that law enforcement knew what the civilians were doing, "the prosecution team made an adoptive admission that law enforcement knew and condoned the vigilantes' actions against [defendant]. (Evid. Code, § 1221.)" Defendant's claim is devoid of logical reasoning.
At trial, defendant failed to challenge Little's actions in relation to the voluntariness of his confession. He cannot do so now. (See People v. Mayfield, supra, 5 Cal.4th at p. 172.)
Moreover, we reject any suggestion defendant's statements should have been excluded because Little failed to give defendant a Miranda advisement. As the United States Supreme Court has made clear, "the special procedural safeguards outlined in Miranda are required not [when] a suspect is simply taken into custody, but rather [when] a suspect in custody is subjected to interrogation." (Rhode Island v. Innis (1980) 446 U.S. 291, 300.) "[T]he term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Id. at p. 301, fn. omitted.)
Here, the record shows Little merely asked if defendant was Spencer, how he was injured, if he wanted medical attention or an ambulance, and if the people who brought defendant to Little had injured him. This does not constitute "interrogation" within the meaning of Miranda. (See People v. Davidson (2013) 221 Cal.App.4th 966, 970.) Thus, we need not determine whether defendant was merely detained or under arrest when he was in the patrol car (see People v. Thomas (2011) 51 Cal.4th 449, 477), and we fail to see how Little's conduct constitutes evidence of coercion.
Defendant also faults Isaac for not offering him any promises of protection from the people who accosted him. He points to Alicia's statement on the phone recording that "every bulldog from here to Fresno County Jail is gonna know who he is before he even gets there." He says the prosecution team knew or should have known the Bulldog gang was a criminal street gang and represented a very large portion of the general population in the Fresno County Jail. As support, defendant cites the trial testimony of a Fresno County Jail classification officer as summarized in People v. Leon (2016) 243 Cal.App.4th 1003, 1013. The testimony of a witness in one case does not, absent circumstances not present here, constitute evidence in another, unrelated case.
Again, this statement was neither in evidence nor before the trial court at the time it ruled on the voluntariness of defendant's confession.
Defendant also argues the threats were ongoing, in that he was threatened again when the note was left on the gate of his home the day before he was set to testify, and his father and uncle were shot at two days after the note was found. This does not show the requisite " 'coercive police activity' " (People v. Leonard, supra, 40 Cal.4th at p. 1403) with regard to a confession made over a year earlier.
3. The trial court's ruling
Defendant claims the trial court erred in its ruling because "[a]fter all of the evidence had been introduced," the court acknowledged defendant had been harmed but praised Jaron and the other civilians, the court did not hold the prosecution to its burden of proof and production, in that no law enforcement agent promised defendant effective police protection, and defendant testified the threats were a factor in causing him to confess.
The ruling defendant contests occurred pretrial. The trial court statements and the testimony referenced by defendant occurred after the jury returned its verdicts. "Our review, of course, is limited to the evidence before the court when it heard the motion. [Citations.]" (People v. Hartsch (2010) 49 Cal.4th 472, 491.)
That defendant may have been harmed does not automatically mean his confession was involuntary. He was not physically harmed or verbally threatened by any member of law enforcement, and nothing in the record of his interrogation by detectives suggests he was confused, worn down, or suffering significant discomfort, or that his will was overborne. (See, e.g., Berghuis v. Thompkins (2010) 560 U.S. 370, 386-387; People v. DePriest, supra, 42 Cal.4th at p. 35; People v. Perdomo (2007) 147 Cal.App.4th 605, 617-619; cf. People v. Caro, supra, 7 Cal.5th at p. 493.)
Defendant calls our attention to People v. Berve (1958) 51 Cal.2d 286 (Berve), overruled on another ground in People v. Cahill (1993) 5 Cal.4th 478, 509 and footnote 17. In Berve, the defendant was kidnapped at rifle point by the victim's husband. He was threatened with imminent death and forced to drive, with a rifle held to his head, to a strange house. There, other vengeful relatives of the victim were present. The defendant was continually told he must confess or die, and his parents were also threatened. While a rifle was pointed at him, the defendant was beaten with shoes, fists, and furniture for almost two hours. His head was pushed through a window, he was struck in the groin with the rifle butt, and he received many blows to the head. When a police officer arrived, he could see the defendant was bleeding, bruised, perspiring, and in a disheveled state, and he was aware the defendant had been brought to the house at gunpoint. The defendant was arrested, handcuffed, and taken to the police station, where he was questioned. He did not receive medical attention or have an opportunity to rest or wash himself. He was given only a single cup of water. During the interview, he was so confused that he showed complete temporal disorientation. He testified that he was in increasing pain during the interview, could not recall many of the questions and answers, and was in fear for himself and his parents from further attack by his assailants. He testified that he would have said " ' "yes" ' " to anything in order to be allowed to lie down and rest. (Berve, supra, at pp. 289-290.)
The California Supreme Court held that the prosecution failed to make the requisite showing "that such coercive conditions as once existed, no longer prevailed at the time the confession was uttered. [Citations.]" (Berve, supra, 51 Cal.2d at p. 291.) It observed: "The actual physical and psychological effects of the beating the defendant absorbed were painfully fresh when he confessed. The police made no effort to assuage his physical suffering by giving him medical attention, opportunity to rest, or even sufficient water to drink or to wash himself. Although there was no threat of further violence by the police, this element was provided by the clear threats of his kidnap[p]ers. . . . To say defendant's confession was freely and voluntarily given is to say that none of these elements extended from his physical ordeal to his police interrogation. It seems doubtful that the defendant would have readily confessed if he had been arrested before he had been mistreated by [the victim's husband] and his associates. [¶] . . . The two-hour inquisition was to instill in defendant such a fear for his own safety and that of his parents that he would confess to proper authorities although removed from immediate danger. Thus, merely liberating the defendant could not wipe out the threats of violence ringing in his ears if he did not confess. The price exacted for freedom from further reprisals was a confession. Momentary police sanctuary could not still defendant's terror unless accompanied by promises of effective police protection. Only then can there be grounds for assuming that the defendant has freedom of choice." (Id. at p. 292.)
The state high court found "[n]o valid grounds for distinction . . . in the fact that the coercion in this case was inflicted by civilians, and not the police. Decisions holding that confessions are inadmissible because they were rendered under conditions of threatened mob violence by civilians against an accused clearly imply such conclusion. [Citations.] The prohibition which bars the use of involuntary confessions is not only designed as a regulation of the conduct of police officers, but also to insure that an accused's right to a fair trial is protected. [Citation.]" (Berve, supra, 51 Cal.2d at p. 293.)
We find Berve factually distinguishable from the present case, both in terms of the quantity of physical and psychological harm inflicted on defendant by the civilians, and in terms of his subsequent treatment by law enforcement officers. Defendant showed no fear or confusion during the interview. We have little doubt defendant would have readily confessed even if he had been arrested before his encounter with Thomas and the others. (Compare Berve, supra, 51 Cal.2d at p. 292 with People v. Salcido (2008) 44 Cal.4th 93, 129-130.)
Assuming defendant's statements to the civilians and/or confession to detectives should have been excluded, however, the error clearly was harmless beyond a reasonable doubt. (See People v. Bradford (1997) 15 Cal.4th 1229, 1313 & cases cited; People v. Perdomo, supra, 147 Cal.App.4th at p. 619.) The evidence presented at trial aside from defendant's confession (see People v. Bradford (2008) 169 Cal.App.4th 843, 855) was uncontradicted that Y.G. was raped at knifepoint, did not know defendant, and defendant's DNA was found in semen in her vagina and her DNA was found on his penis and under his fingernails. His statements to the civilians and confession to detectives added nothing.
IV
DEFENDANT'S ABSENCE FROM TRIAL AND RELATED MISTRIAL MOTION
Defendant says the trial court abused its discretion by finding that he voluntarily absented himself from trial and by continuing with the trial in his absence. He also says the trial court should have granted him a mistrial. We conclude the trial court did not err. A. Background
The People rested on December 11, 2012. After the jury was excused for the day, the court and counsel discussed the admissibility of defense exhibits K and L, the audio recording made from Alicia's cell phone and accompanying transcript. Alvarez made an offer of proof that defendant would be testifying and could lay the foundation for and authenticate the recording. The recording was played for the court, which also followed along with the transcript. After further discussion of those exhibits, Alvarez presented defense exhibit M, which he represented was a note found by a care provider that morning on the gate to the Scarber family's property. Alvarez asked that defendant also be allowed to address the note during his testimony, as it was relevant to the pressure and fear he experienced and was still experiencing, and why he made certain statements when interviewed by law enforcement. The court stated it wished to conduct further research and consider the parties' arguments, and that it would announce its ruling at 8:30 the next morning, before the jury returned.
The next morning (Dec. 12, 2012), the court went on the record a little after 9:30 a.m. Alvarez stated that he received a telephone call from Kyle Scarber (hereafter Kyle Scarber or Scarber), defendant's father, about 6:00 that morning. Scarber, who sounded emotionally distraught, informed Alvarez that when he went to defendant's room to get him ready for that day's proceedings, he discovered defendant was missing. Law enforcement was contacted and were conducting a search that would include an aerial search. Around 9:15 a.m., Alvarez received another call from Scarber, who stated that "I. Bureau" was now processing the scene, and that sheriff's detectives and "CHP" personnel were there as well. Scarber informed Alvarez that when defendant's room was searched, law enforcement found his wallet, which included his identification, as well as his clothes and personal belongings.
The prosecutor represented that Alvarez notified her of the events around 6:00 a.m., whereupon she contacted Isaac, her chief investigating officer. Isaac informed the prosecutor, about 15 minutes before the court took the bench, that the sheriff's department and the CHP both were investigating the scene. Broken crutches and blood were found on the roadway near the Scarber residence. The sheriff's department and the CHP were investigating that area as well, and believed the scene was staged. In addition, neither defendant's mother nor his sister were home. According to Scarber, the mother and sister left the night before to go to Oceanside. There was no information concerning whether defendant was with them. The sheriff's department "did pings" on what they believed was the mother's cell phone number, but the absence of "pings" after 8:00 the night before suggested the phone was turned off. The prosecutor requested a bench warrant for defendant.
The court observed that section 1043 applied and gave various options. The court believed continuing the matter was the safest and most prudent course at that point, as additional information likely would be developed throughout the day. Accordingly, without any objection from either party, it put the matter over until the next morning.
That afternoon, the court conducted a follow-up hearing. Alvarez represented there had been no developments since that morning. He noted that court had recessed at 3:30 p.m. the day before, as defendant had a 4:00 p.m. doctor's appointment. Alvarez spoke with defendant by telephone at 5:00 p.m., and reiterated that defendant needed to be in court at 8:30 the next morning, i.e., December 12, 2012. The only information the prosecutor had was that the sheriff's department and the CHP were conducting an ongoing investigation and were interviewing witnesses.
The court ordered defendant's bond forfeited, and found, in reference to that order, that there was no legal excuse for his nonappearance. The court then recessed until 8:30 the next morning.
The next morning (Dec. 13, 2012), Alvarez represented that defendant's family had had no contact with defendant and did not know where he was.
The prosecutor stated the People's belief that defendant had voluntarily absented himself from trial. She reiterated that the scene of the broken crutches and blood on the road appeared to have been staged, and it did not appear to the sheriff's department that defendant had been abducted or harmed by anyone. She represented that the sheriff's department had interviewed several persons of interest, and all had solid alibis for the pertinent time frame. The prosecutor further stated that she had been informed defendant's mother and sister had left for Oceanside on the night of December 11, 2012. The prosecutor found out on December 12, 2012, from Isaac and Sheriff's Sergeant Christian, that they had spoken to "ICE" agents and learned defendant applied for and was issued a passport on October 24, 2012. Although the passport had not been used, the reason given for the expedited passport was that defendant was going to be going on a vacation November 6, 2012. The prosecutor noted that that was the original trial date set in the case. The prosecutor asserted trial should go forward in defendant's voluntary absence.
Alvarez argued section 1043 was the controlling statute and required a determination whether defendant's absence was voluntarily. Alvarez argued there was insufficient evidence to permit such a finding at that point, as the matter was still under active investigation. Alvarez pointed out that the sheriff's department had issued a press release the previous afternoon in which it was stated that detectives were concerned for defendant's safety due to the circumstances surrounding his disappearance. In light of the fact defendant was facing a life sentence, Alvarez argued that the prudent way to proceed, and to preserve defendant's due process and trial rights, would be to declare a mistrial. Alvarez also pointed out that on the November 6 date, defendant was present and both sides declared they were ready for trial. Trial did not start that day, however, because no courtroom was available.
The prosecutor responded that she did not believe the sheriff's department was aware of the existence of the passport when it issued the press release. She acknowledged defendant appeared on November 6 and on the first day of trial, but took the position defendant wanted to have his passport in hand if trial did not go favorably for him.
The trial court again referenced section 1043, and noted it originally trailed the matter out of an abundance of caution. It now exercised the option of issuing a bench warrant. With respect to the issue whether defendant had voluntarily absented himself, the court observed that the People rested their case at approximately noon on December 11, 2012. Defendant had a medical appointment at 4:00 that afternoon, and had requested to be able to leave no later than 3:30 p.m. Instead of directing the defense to begin at 1:30 p.m., the court accommodated the request to begin the following morning, December 12, 2012, at 9:00 a.m., and it directed defendant to be in court at 8:30 for proceedings on various motions. Defendant was not present at the appointed time. The court stated:
"In light of the offer of proof made by the People, and the lack of any satisfactory evidence to the Court on behalf of Defendant, the Court does conclude, and is concluding, that the Defendant has voluntarily absented himself from this proceeding. The timing of his absence coincides with the beginning of his defense. He was here throughout the People's case until the People rested. And the Court fully expected that Defense would begin with him as their first witness yesterday morning . . . .
"So, as I stated, the Court is making a finding that Defendant has voluntarily absented himself. And if the Court did grant the mistrial, as requested by Defense Counsel, in the event of a conviction one of the issues before the Court, I'm virtually certain, would be that he was placed once in jeopardy and could not be retried. So whatever concerns in that respect, I think that's a consideration we need to address as well, that the Defendant has [sic] placed in jeopardy. And I believe one case that is very instructive relating to the procedural juncture we are at [at] this point is the case of People versus James Snyder . . . . Citation being 56 Cal.App.3d 195. . . . And that case discusses virtually the procedural posture of this case up to this point. And the Defendant in Snyder, the Court concluded, voluntarily absented himself. And there was discussion in that case about jeopardy and so on. And the Court in that case as well deferred the trial one full day and allowed the Prosecution's motion to proceed in Defendant's absence where Defendant never later offered an explanation for his absence. And the Court held under those circumstances there was no violation of the Defendant's right to a fair trial in proceeding in his absence. And that's only one case that I've come across, but that case is very instructive in terms of proceeding in absentia at this time."
The court subsequently confirmed that the motion for mistrial was denied. The defense presented no evidence at trial. Following defendant's conviction, sentencing was set for January 15, 2013. On that date, the trial court declined to sentence defendant in absentia. On February 21, 2013, the court calendared further proceedings, defendant having been found in Acapulco, Mexico, and extradited back to the United States. B. Analysis
" 'A criminal defendant's right to be present at trial is protected under both the federal and state Constitutions. [Citations.] [¶] But the right is not an absolute one. [Citation.] It may be expressly or impliedly waived. [Citation.] As relevant here, the [United States Supreme Court] has stated that 'where the offense is not capital and the accused is not in custody, the prevailing rule has been, that if, after the trial has begun in his presence, he voluntarily absents himself, this does not nullify what has been done or prevent the completion of the trial, but, on the contrary, operates as a waiver of his right to be present and leaves the court free to proceed with the trial in like manner and with like effect as if he were present.' [Citation.]" (People v. Espinoza (2016) 1 Cal.5th 61, 72, italics omitted (Espinoza).)
Section 1043, subdivision (b)(2), "has adopted this majority rule as state law." (Espinoza, supra, 1 Cal.5th at p. 72.) It provides: "(b) The absence of the defendant in a felony case after the trial has commenced in his presence shall not prevent continuing the trial to, and including, the return of the verdict in any of the following cases: [¶] . . . [¶] (2) Any prosecution for an offense which is not punishable by death in which the defendant is voluntarily absent." (§ 1043.) Thus, voluntary absence constitutes a waiver of the right to be present at trial. (People v. Howard (1996) 47 Cal.App.4th 1526, 1538, disapproved on another ground in People v. Fuhrman (1997) 16 Cal.4th 930, 947, fn. 11.)
The trial court here relied on subdivision (e) of section 1043. That subdivision gives a court discretion to do one or more of the following: "(1) Continue the matter. [¶] (2) Order bail forfeited or revoke release on the defendant's own recognizance. [¶] (3) Issue a bench warrant. [¶] (4) Proceed with the trial if the court finds the defendant has absented himself voluntarily with full knowledge that the trial is to be held or is being held." Subdivision (e) of section 1043 applies where a defendant in a misdemeanor case fails to appear at the time set for trial or during the course of trial, however. Defendant does not contend he was harmed by the trial court's reliance on this subdivision instead of, or in addition to, subdivision (b) of the statute.
" ' "[I]f a defendant at liberty remains away during his trial the court may proceed provided it is clearly established that his absence is voluntary. He must be aware of the processes taking place, of his right and of his obligation to be present, and he must have no sound reason for remaining away." ' [Citation.] Under such circumstances, . . . ' "there can be no doubt whatever that the governmental prerogative to proceed with a trial may not be defeated by conduct of the accused that prevents the trial from going forward." ' [Citation.]" (Espinoza, supra, 1 Cal.5th at pp. 73-74.) "The role of an appellate court in reviewing a finding of voluntary absence is a limited one. Review is restricted to determining whether the finding is supported by substantial evidence. [Citation.]" (Id. at p. 74.)
The record at the time of the trial court's ruling supports that court's implied findings defendant was aware of the processes taking place, knew he had a right and obligation to be present, and had no sound reason for remaining away. Accordingly, it adequately supports the trial court's express finding defendant voluntarily absented himself from trial. (Espinoza, supra, 1 Cal.5th at p. 74.)
Strictly speaking, offers of proof are not evidence. (Mundell v. Department of Alcoholic Beverage Control (1962) 211 Cal.App.2d 231, 239.) Here, however, both attorneys made representations of fact, concerning the circumstances surrounding and investigation into defendant's disappearance, as officers of the court. Neither objected to the other doing so, contradicted the other's representations, or objected to the trial court relying on those representations. " '[A]ttorneys are officers of the court, and " 'when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.' " ' [Citation.]" (People v. Mroczko (1983) 35 Cal.3d 86, 112, disapproved on another ground in Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) Because the prosecutor's representations were neither contradicted nor objected to, we cannot fault the trial court for relying on them in determining whether defendant's absence was voluntary. (See People v. Mirenda (2009) 174 Cal.App.4th 1313, 1331-1332.)
"Of course, our conclusion that defendant's voluntary absence operated to waive his constitutional right to be present at trial and permitted continuation of the trial does not end our inquiry regarding the propriety of the trial court's decision to proceed with the trial in the absence of defendant . . . . Section 1043[, subdivision ](b)(2) states that a defendant's voluntary absence 'shall not prevent' the trial from continuing, but it does not require it. Accordingly, the decision whether to continue with a trial in absentia under the statute or to declare a mistrial rests within the discretion of the trial court. [Citation.]" (Espinoza, supra, 1 Cal.5th at pp. 75-76; see People v. Hines (1997) 15 Cal.4th 997, 1038-1039.)
While deferential, the abuse-of-discretion standard is not empty. "[I]t asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts [citations]." (People v. Williams (1998) 17 Cal.4th 148, 162.) Given what the trial court knew at the time defendant failed to appear and then learned during the time it continued the matter, its decision to proceed with trial was reasonable and not an abuse of discretion. "The court was not required to reward defendant's voluntary choice to absent himself by granting a mistrial. [Citation.]" (Espinoza, supra, 1 Cal.5th at pp. 77-78.)
We need not determine whether the trial court's concern about defendant subsequently raising a claim of once in jeopardy was misplaced. (See generally People v. Batts (2003) 30 Cal.4th 660, 679-680; see also People v. Brandon (1995) 40 Cal.App.4th 1172, 1175; People v. Snyder (1976) 56 Cal.App.3d 195, 201-202.) We will uphold a correct ruling even if it was given for a wrong reason. (People v. Smithey (1999) 20 Cal.4th 936, 972.)
This does not end our analysis, however. As the Court of Appeal explained in People v. Connolly (1973) 36 Cal.App.3d 379, 384 through 385:
"Unquestionably section 1043, subdivision (b)(2), was designed to prevent the defendant from intentionally frustrating the orderly processes of his trial by voluntarily absenting himself. A crucial question must always be, 'Why is the defendant absent?' This question can rarely be answered at the time the court must determine whether the trial should proceed. Consequently, in reviewing a challenge to the continuation of a trial pursuant to . . . section 1043, subdivision (b)(2), it must be recognized that the court's initial determination is not conclusive in that, upon the subsequent appearance of the defendant, additional information may be presented which either affirms the initial decision of the court or demands that defendant be given a new trial. It is the totality of the record that must be reviewed in determining whether the absence was voluntary.
"When looking to the initial proceedings involving the determination to proceed with trial, sufficient facts must be before the court to establish
what reasonably appears to be a prima facie showing of voluntary absence. In the usual case a continuation of at least a few hours in order to locate defendant is appropriate. Once the defendant is again before the court he may challenge the propriety of proceeding in his absence. In this regard he can testify and present other evidence on the issue of whether his absence was in fact voluntary. On appeal the reviewing court must determine, on the whole record, whether defendant's absence was knowing and voluntary. [Citations.]
"To look solely at the facts initially before the court would be patently unfair. If the facts initially before the court demonstrated a voluntary absence when in fact defendant was involuntarily absent, . . . even when the truth was known, if the trial court refused to grant defendant relief, the reviewing court would be compelled to uphold the ruling. Such a result would be an abuse of the judicial process. The determination of the reviewing court must be based upon the totality of the facts; not just a portion of them."
A trial court has no sua sponte duty to reconsider its determination once an absent defendant reappears. (People v. Concepcion (2008) 45 Cal.4th 77, 84.) Here, defendant did not move for reconsideration as such once he was returned from Mexico. However, in his original and first amended motions for a new trial/mistrial, Magill asserted defendant was entitled to a new trial or a mistrial on the grounds conducting the trial in defendant's absence was not lawful. Magill alleged Alvarez pressured defendant to testify falsely, and defendant was faced with the option of testifying falsely or having no defense presented on his behalf. As a result, defendant fled due to his belief he had no other options available.
In light of the foregoing, it is appropriate for us to consider, in our examination of the totality of the record, evidence presented on the issue after the trial court's initial determination. This does not assist defendant, however, because the whole record reflects that defendant's absence was indeed voluntary. "To require a new trial under the circumstances of this case would put a premium on flight, and nullify the provisions of subdivision (b) of section 1043." (People v. Vargas (1975) 53 Cal.App.3d 516, 524.)
We discuss Magill's claims and the evidence presented more fully in conjunction with our discussion of the new trial motion, post.
On October 9, 2013, a hearing was held so Magill could present oral testimony as an offer of proof in support of defendant's motion for a new trial/mistrial. At the hearing, defendant testified he fled, intentionally absenting himself because he was not receiving any support from Alvarez, who wanted him to lie on the witness stand about something defendant did not do. Defendant testified he was not aware that he could have asked the court to allow him to obtain new counsel and to continue the matter to permit defendant to mount a defense. Defendant further testified he admitted raping Y.G. in his statement to detectives, because he felt threatened for his life and his family's lives. He did not feel threatened by the officers, but Thomas, Jaron, Alicia, and the other members of that group, did threaten that if he did not confess he and his family would be killed. The group beat him, causing him pain and requiring him to seek medical treatment for his injuries once he was on bail. Defendant believed the group was capable of carrying out the threats because of their associates, the things he had seen them do, and the things he had heard them say. Defendant did not tell any of that to the detectives. His father was a law enforcement officer at the time, but "[t]hat [did not] mean he [could not] be killed."
References to "the October 9 hearing" or "the offer of proof hearing" are to the hearing of October 9, 2013.
Also at the hearing, Lauren D., who once had a dating relationship with defendant, testified that Thomas told her that he had let Alicia and the others beat defendant until he confessed. Lauren testified that Alicia and her family were "really, really scary" and they had bragged in her presence about killing people. She believed defendant would have reason to be afraid of them.
At the conclusion of argument concerning the motion for new trial/mistrial, the court stated:
"[T]he finding that the Court made of the Defendant's voluntary absence during trial was confirmed and remains without any doubt in light of Defendant's own testimony at the offer of proof hearing on October the 9th when he testified that he, quote, 'fled,' close quote. In light of that admission . . . , several questions come to mind:
"One, why didn't he go or, quote, 'flee,' close quote, as he puts it, to another attorney's office if he was dissatisfied with trial counsel?
"Two, why not flee after his counsel's opening statement and before the evidence was to begin?
"Third, after fleeing, how long was he going to remain in Mexico before returning to make a motion for mistrial or new trial?
"In short, the declaration of Detective Isaac, which is Exhibit Number 6, and the attachments thereto, namely, 6A, 6B and 6C in the People's opposition provide the answers to those questions.
"In the case of People versus White, . . . at 18 Cal.App.3d 44, decided by the Fifth District Court of Appeal in 1971, that court observed, quote: [¶] 'If the Defendant . . . voluntarily absents himself, he thereafter cannot complain of a situation he created. He cannot take advantage of his own wrong,' close quote. [¶] . . . [¶]
"Interestingly, . . . the case of People versus Cox 81 Cal.App.3d Supp., page 1, decided in 1978, presented a case wherein a motion for a new trial was granted following a finding of that Defendant's voluntary absence at trial. Upon appeal by the State, the order was reversed and it's deemed an abuse of discretion. Similarly in our case, to grant the motion would undoubtedly be viewed as an abuse of discretion."
In her declaration, Isaac related that on February 15, 2013, the sheriff's department received information that defendant had been detained by Mexican authorities in Acapulco, Mexico. Defendant was returned to the United States the next day. When Isaac and other detectives drove defendant from the Los Angeles airport to Fresno, defendant admitted that he fled to Mexico during his trial and used a false Texas identification in the name of Brandon Smith while in Mexico. According to Isaac, defendant changed his appearance and obtained numerous tattoos between the time he was present at trial and the time he was apprehended in Mexico. Appended to Isaac's declaration were photographs of the Texas driver's license and defendant's tattoos.
Our examination of the record in its totality confirms defendant voluntarily absented himself from trial. Defendant cites People v. Keovilayphone (2005) 132 Cal.App.4th 491, 496, for the proposition that because "[t]he word 'voluntarily' in section 264.1 [rape in concert] means that the defendant acted freely of his own volition, and not accidentally, unintentionally or out of fear or coercion," the word has the same meaning for purposes of section 1043. Assuming this is so, defendant's testimony establishes he did not flee out of fear or coercion, but because Alvarez purportedly wanted him to perjure himself. Although defendant testified about the threats he received, his testimony in this regard concerned his confession to detectives, not the reason he fled.
Moreover, even assuming defendant was fearful, he "had many options to ensure his safety . . . . Simply refusing to appear . . . was not one of them." (People v. Pigage (2003) 112 Cal.App.4th 1359, 1369.) "Defendant voluntarily absented himself from the proceedings. The court's decision to complete the trial in defendant's absence did not violate his constitutional or statutory right to be present at trial." (Ibid.)
V
FAILURE TO INSTRUCT ON CONSENT
Defendant contends the trial court erred by refusing to instruct on consent and/or mistaken belief in consent.
The court did instruct the jury that for the charge of rape by force, the People had to prove Y.G. did not consent. It did not instruct on mistaken belief in consent.
Before defendant absconded, the defense was one of consent. No evidence of consent was presented to the jury, however. Nor was there any evidence defendant honestly, reasonably, but mistakenly believed Y.G. consented to sexual intercourse or any evidence defendant was relying on such defense. On these facts, we conclude no further instructions were required. In any event, any arguable error was harmless. A. Background
Defendant filed a motion in limine whereby he sought to introduce evidence of his and Y.G.'s prior sexual conduct pursuant to Evidence Code section 1103, subdivision (c)(3). In their motions in limine, the People requested that Y.G.'s prior sexual conduct be deemed inadmissible pursuant to Evidence Code sections 782 and 1103. As an offer of proof pursuant to Evidence Code section 782, defendant executed a sworn affidavit in which he stated that approximately six months prior to July 29, 2011, he was at Thomas's residence when he asked Y.G. if she was interested in a " 'friends with benefits situation.' " When she said she was, she and defendant had sex at the S. residence. Defendant did not use a condom since Y.G. stated she was on birth control. Y.G. told defendant not to tell anyone, because her boyfriend would get jealous. At the hearing on in limine motions, the prosecutor acknowledged that defendant had the right to present a defense and to testify to what was stated in the affidavit. She asked the court to limit cross-examination of Y.G. to the points contained in the affidavit. Alvarez agreed, and that became the order of the court.
In his opening statement, Alvarez stated it was undisputed that defendant and Y.G. had sexual intercourse on the date in question. He represented the evidence would show it was consensual, and that there was a prior instance of intimate contact between the pair.
At the outset of trial, Alvarez and the People both requested that the court instruct the jury with CALCRIM No. 1000 (Rape or Spousal Rape by Force, Fear, or Threats). Defendant also asked the court to give CALCRIM No. 1194 (Consent: Prior Sexual Intercourse).
CALCRIM No. 1000 provides, in part, that in order to prove the defendant is guilty of rape, the People must prove the woman did not consent to the intercourse. The instruction contains an optional paragraph that states: "To consent, a woman must act freely and voluntarily and know the nature of the act." The instruction also lists, as a defense, reasonable belief in consent. It contains the following optional paragraph: "The defendant is not guilty of rape if he actually and reasonably believed that the woman consented to the intercourse [and actually and reasonably believed that she consented throughout the act of intercourse]. The People have the burden of proving beyond a reasonable doubt that the defendant did not actually and reasonably believe that the woman consented. If the People have not met this burden, you must find the defendant not guilty."
CALCRIM No. 1194 provides: "You have heard evidence that (___ <insert name of complaining witness>/Jane Doe/John Doe) had consensual sexual intercourse with the defendant before the act that is charged in this case. You may consider this evidence only to help you decide (whether the alleged victim consented to the charged act[s]/ [and] whether the defendant reasonably and in good faith believed that (___ <insert name of complaint witness>/Jane Doe/John Doe) consented to the charged act[s]). Do not consider this evidence for any other purpose."
The jury instruction conference was held in chambers. On the record, the trial court stated it was refusing to give CALCRIM No. 1194. The court stated that with respect to the remainder of the instructions, both counsel were familiar with the language that would be provided to the jury. Both counsel concurred, and neither had any comment or statement with regard thereto. The court subsequently instructed the jury in the language of CALCRIM No. 1000 as follows:
"The defendant is charged in Count One with rape by force, in violation of Penal Code Section 261(a)(2).
"To prove that the defendant is guilty of this crime, the People must prove that:
"One, the defendant . . . had sexual intercourse with a woman.
"Two, he and the woman were not married to each other at the time of the intercourse.
"Three, the woman did not consent to the intercourse.
"And, four, the defendant accomplished the intercourse by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the woman or to someone else.
"Sexual intercourse means any penetration, no matter how slight, of the vagina or genitalia by the penis. Ejaculation is not required.
"To consent, a person must act freely and voluntarily, and know the nature of the act.B. Analysis
"Intercourse is accomplished by force if a person uses enough physical force to overcome the woman's will.
"Duress means a direct or implied threat of force, violence, danger, or retribution that would cause a reasonable person to do or submit to something that she would not do or submit to otherwise.
"When deciding whether the act was accomplished by duress, consider all the circumstances, including the woman's age, and her relationship to the defendant.
"Menace means a threat, statement, or act showing an intent to injure someone.
"Intercourse is accomplished by fear if the woman is actually and reasonably afraid, or she's actually but unreasonably afraid, and the defendant knows of her fear and takes advantage of it."
"In criminal cases, even in the absence of a request, a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. [Citation.] 'A trial court's duty to instruct, sua sponte, on particular defenses arises " 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " ' [Citation.]" (People v. Martinez (2010) 47 Cal.4th 911, 953; accord, People v. Brooks (2017) 3 Cal.5th 1, 74; People v. Barton (1995) 12 Cal.4th 186, 195; see Mathews v. United States (1988) 485 U.S. 58, 63.)
Citing People v. Carmen (1951) 36 Cal.2d 768 (Carmen), defendant insists the instruction must be given no matter how weak the evidence. Carmen states: "It has been held that a defendant is entitled to instructions on his theory of the case as disclosed by the evidence, no matter how weak." (Id. at p. 773.)
Carmen addressed the failure to instruct on a lesser offense (manslaughter in a murder prosecution), not the failure to instruct on a defense. (Carmen, supra, 36 Cal.2d at pp. 773-774.) Moreover, the California Supreme Court has since clarified the quoted statement. In People v. Flannel (1979) 25 Cal.3d 668, 684-685, footnote 12 (superseded by statute on another ground as stated in In re Christian S. (1994) 7 Cal.4th 768, 777), the court stated: "Many cases cite, often without elaboration, language in Carmen, supra, 36 Cal.2d 768, or in People v. Modesto (1963) 59 Cal.2d 722, 729, to the effect that jury instructions must be given whenever any evidence is presented, no matter how weak. To the extent that a decision of any court interprets these cases to require instructions without evidence substantial enough to merit consideration, it is disapproved. [Citations.]"
"A trial court is required to give a requested instruction on a defense only if substantial evidence supports the defense. [Citation.]" (People v. Panah (2005) 35 Cal.4th 395, 484.) Similarly, pinpoint instructions — instructions that relate particular facts to a legal issue in the case or pinpoint the crux of a defendant's case — must be given upon request when there is evidence supportive of the defense theory, but they are not required to be given sua sponte. (People v. Lujano (2017) 15 Cal.App.5th 187, 191.)
In the context of jury instructions, "[e]vidence is 'substantial' only if a reasonable jury could find it persuasive. [Citation.] The trial court's determination of whether an instruction should be given must be made without reference to the credibility of the evidence. [Citation.] The trial court need not give instructions based solely on conjecture and speculation. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1200.) On appeal, we independently review the question whether the trial court failed to instruct on a defense. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.)
Defendant first challenges the trial court's failure/refusal to instruct on consent. The obvious answer is, there was no actual evidence of consent before the jury. Defendant points to Jaron's testimony that when being questioned by the civilians, "[f]or a good ten minutes or so [defendant] was in complete denial of it," after which he confessed to raping Y.G. An accused's blanket denial that he raped the victim does not constitute evidence they had consensual intercourse. A denial can be based on many factors, such as alibi or mistaken identity.
Defendant says, though, that he was relying on a consent defense, the trial court was aware of this fact, and defendant requested appropriate instructions on the subject. It is true that before defendant absconded, the defense was one of consent. We are not convinced the trial court should have concluded that remained the theory of defense after defendant voluntarily absented himself, since, as the case then stood, there was no evidence of consent without defendant's testimony.
In any event, "in a forcible rape charge of an adult victim, the [victim's] consent is placed in issue by the not guilty plea . . . ." (People v. Key (1984) 153 Cal.App.3d 888, 895.) "Section 261, subdivision [(a)](2) defines rape as sexual intercourse accomplished against a person's will. By definition, it is nonconsensual sexual intercourse. Therefore, whether the defendant testifies, or stands silent, the prosecution must establish the victim's nonconsent beyond a reasonable doubt along with all other elements . . . ." (Ibid.) CALCRIM No. 1000, as given here, informed jurors of this legal principle.
"[A] defendant's reasonable and good faith mistake of fact regarding a person's consent to sexual intercourse is a defense to rape because it negates the wrongful intent required for the crime. [Citation.]" (People v. Martinez, supra, 47 Cal.4th at p. 954, citing People v. Mayberry (1975) 15 Cal.3d 143, 155.) This defense "has two components, one subjective, and one objective. The subjective component asks whether the defendant honestly and in good faith, albeit mistakenly, believed that the victim consented to sexual intercourse. In order to satisfy this component, a defendant must adduce evidence of the victim's equivocal conduct on the basis of which he erroneously believed there was consent. [¶] In addition, the defendant must satisfy the objective component, which asks whether the defendant's mistake regarding consent was reasonable under the circumstances. Thus, regardless of how strongly a defendant may subjectively believe a person has consented to sexual intercourse, that belief must be formed under circumstances society will tolerate as reasonable . . . ." (People v. Williams (1992) 4 Cal.4th 354, 360-361, fn. omitted.)
Here, there was no evidence — much less substantial evidence — that defendant honestly and reasonably, albeit mistakenly, believed Y.G. consented to sexual intercourse. (See People v. Williams, supra, 4 Cal.4th at p. 361.) Surrender at knifepoint, followed by capitulation, constitutes neither equivocal conduct nor conduct that reasonably could be mistaken for consent. (See People v. Martinez, supra, 47 Cal.4th at p. 954; People v. Hernandez (2009) 180 Cal.App.4th 337, 344-345.)
Moreover, there was nothing at trial to suggest defendant was relying on a defense of good faith but mistaken belief in consent. Rather, the defense theory (before defendant absconded) was one of actual consent, not mistaken belief in consent. Accordingly, the trial court had no sua sponte duty to instruct on the defense (see People v. Dominguez (2006) 39 Cal.4th 1141, 1148-1149), nor was it required to do so upon request, as by giving the optional portion of CALCRIM No. 1000 or giving CALCRIM No. 1194 (see People v. Panah, supra, 35 Cal.4th at p. 484).
Finally, even assuming error occurred, it was harmless under any standard. (See People v. Martinez, supra, 47 Cal.4th at p. 955; People v. Salas (2006) 37 Cal.4th 967, 984; People v. Hanna (2013) 218 Cal.App.4th 455, 462.) CALCRIM No. 1000, as given, informed the jury that the People had to prove lack of consent. By convicting defendant of forcible rape, the jury necessarily found the People did so. Because no actual evidence of consent, mistaken belief in consent, or prior sexual contact between defendant and Y.G. was presented, the omission of CALCRIM No. 1194 and the optional paragraph of CALCRIM No. 1000 cannot possibly have contributed to the verdict. (See Chapman, supra, 386 U.S. at p. 24; see also Neder v. United States (1999) 527 U.S. 1, 7; Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)
VI
DENIAL OF NEW TRIAL MOTION AND R ELATED CLAIMS
Defendant challenges the trial court's denial of his motion for a new trial, which was brought on various grounds, including Brady error, newly discovered evidence, and ineffective assistance of counsel (Alvarez). In related claims, he says the court erred by refusing to issue body attachments for and compel the testimony of Alicia and Summer T., and by quashing defendant's subpoenas duces tecum. We find no error. A. The New Trial Motion
1. Background
On March 12, 2013, following defendant's return from Mexico, Alvarez filed a motion to withdraw as counsel of record. On March 20, 2013, he filed a new trial motion on defendant's behalf. On April 12, 2013, the trial court granted Alvarez's request to withdraw the new trial motion and relieved him as attorney of record. On April 25, 2013, Magill became defendant's attorney of record. A briefing schedule was set, and hearing on Magill's motion for a new trial was set for July 29, 2013.
After various continuances, and although the new trial motion had not yet been filed, a hearing was set for October 9, 2013. At this hearing, defendant (who had filed a written offer of proof and first amended and supplemental offer of proof) was permitted to present oral testimony in support of the motion for new trial, specifically with respect to witnesses he asserted Alvarez should have called at trial.
Defendant testified that when the prosecution rested, he asked Alvarez if he was planning on calling witnesses on defendant's behalf. Alvarez represented that he intended to call no witnesses on defendant's behalf other than defendant. Alvarez "pretty much said" that he did not care what defendant said on the stand, and that in closing argument, he was going to say that defendant might have done it but was on drugs and so doped up that he did not remember doing it. Defendant understood Alvarez to want defendant to testify differently than how defendant had understood his defense. Defendant believed Alvarez was suggesting that defendant testify falsely. After this conversation, defendant went to his knee doctor, then home, then he fled. He fled because he was receiving no support from his attorney and his attorney wanted him to lie on the stand about something defendant did not do.
Defendant admitted that during July 2011, he was smoking marijuana and ingesting methamphetamine, and had both in his system when his blood was drawn following the rape.
Defendant testified that he admitted to detectives that he raped Y.G., because he felt threatened for his life and that of his family. He did not feel threatened by the officers but had been threatened that if he did not confess to rape, he, his parents, and his three sisters were going to be killed. Thomas, Jaron, someone named Jesse, Summer, and Alicia were all present when he was threatened. He was beaten by them and in pain from the beating and sought medical treatment for his injuries once he was out on bail. Defendant explained to Alvarez, prior to trial, about the beating and that his statement to law enforcement was false. Defendant believed the group of people were capable of carrying out the threats because of their associates, things he had seen them do, and things he had heard them say. When defendant made the false admissions to law enforcement, the threats were in his mind, although he did not tell the detectives about them even when he made a police report about being assaulted. Thomas was "pretty much the main" person who made the threats. Defendant was aware at the time that Thomas had an illicit marijuana grove about 45 to 65 yards behind Thomas's house. Defendant estimated it contained about 75 plants. Thomas said he wanted defendant to admit raping Y.G. because he wanted someone to blame, and he did not want law enforcement officers snooping around in his house. Defendant was aware Thomas dealt narcotics, and that he kept narcotics in his bedroom, which he kept locked. Defendant did not tell his father, who was a CHP captain, about the threats while he was in custody, although he could have done so. He first told his father (whom he believed was the first person he told) two or three months after his arrest. Defendant did not believe he told Wilson, his attorney at the time.
According to defendant, when Thomas made his threats, the police had already been to the house. They were still looking for suspects, however.
Nicole L. testified Y.G. was the sister-in-law of John L., Nicole's brother-in-law. She had known Y.G. for a few years. When asked if she had formed an opinion as to Y.G.'s credibility, Nicole said she had, to some extent. She testified that Y.G. had never lied to her directly so far as Nicole was aware, but that she seemed kind of "ditzy" or "air[-]headed."
Magill's written supplemental offer of proof claimed Nicole knew of Y.G.'s reputation for sexual promiscuity and lying. This information's purported relevance was to show one of the L. family was having an affair with Y.G. and providing financial assistance to her, and was very possessive of her. This in turn assertedly showed Y.G. had a motive to say she was raped when in fact the sex was consensual. It was the defense theory that someone at the S. residence saw defendant and Y.G. having consensual sex. In this and other instances, the oral testimony at the October 9 hearing was not consistent with or supportive of the written offer of proof.
Cody D. testified that he "hung out" with Thomas and members of the N. family. He was aware Thomas cultivated marijuana, but not at the S. residence. He did not know whether Thomas had assaulted anyone prior to July 2011. When he had been to the S. house, he had not been in Thomas's bedroom.
Bill L. testified that Y.G. was his son's wife's sister. He believed Y.G.'s sister once alleged someone had raped the sister.
Lauren testified that she had known defendant for about three years. They had a dating relationship until five or six months before the events of July 2011. They broke up because defendant was "changing." He spent most of his time with his friends instead of her.
Through defendant, Lauren met Thomas. Through defendant and her boyfriend, Lauren also met Alicia. She also knew Nicole N. She was aware Thomas and Alicia supplied marijuana to defendant.
When Lauren was around Thomas, Thomas was quiet. Lauren assumed he was a good person, although she heard he had a couple of fights with his girlfriend's boyfriend.
Defendant never expressed concern to Lauren about Thomas. After defendant was found in the vehicle in the S. family's front yard, however, Thomas told Lauren and her boyfriend that he let Alicia, Jesse (Alicia's boyfriend at the time) and Summer come and get defendant and "beat him up" to make him confess. They then took him to the police.
Alicia and her family bragged about "beating [defendant] up." They said they "beat him up until he confessed on their phone."
Lauren was afraid to testify, because Alicia and her family were "really mean." They took drugs and they hurt people. They had bragged about killing someone. She believed defendant would have reason to be afraid of them. She never told the police about the N. family, even though she was interviewed by the police on July 29, 2011, and she was aware defendant was on trial. She was scared, but now she was trying to do the right thing.
B.L. testified that Y.G. was his brother's sister-in-law. In July or early August 2011, he ran into Y.G. at the gas station and they spoke briefly. Y.G. said she had been raped. Although she did not normally exhibit any kind of emotion, she seemed a little shaken, confused, and not herself. B.L.'s wife told him that LiAne Sc., who was a member of the Sheriff's Mounted Patrol at one point, expressed concern to her about B.L. being alone with Y.G.
On November 22, 2013, Magill filed a motion for new trial and motion for mistrial. A first amended motion was filed December 5, 2013. As exhibits in support of the new trial request, the defense presented the following:
(1) A transcript of the recording made from Alicia's phone.
(2) Sheriff's office dispatch records ("INCIDENT RECALL") for July 29 through 31, 2011, concerning this case.
(3) A declaration from Attorney Wilson, in which he stated that during the period in which he represented defendant, Kyle Scarber prepared a document listing his concerns about the investigation and his opinions related to the sheriff's department's investigative protocols and procedures. Wilson was informed and believed this document was provided to Alvarez with the rest of defendant's file when Alvarez replaced Wilson as defendant's attorney.
(4) A declaration from Scarber's brother, stating that late on the night of December 13, 2012, he and Scarber were standing at the entrance to Scarber's driveway when they heard a voice and then a single gunshot was fired at them from the direction of the voice. The sheriff's department incident report did not accurately reflect the summary of events the brother provided to the responding deputy.
(5) A declaration from LiAne, stating that while she was attending a party in December 2011 at the home of Y.G.'s sister, Y.G. — whom LiAne had not met previously — related that she had been " 'attacked' " at the S. residence. In describing what happened, Y.G. never used the word " 'rape.' " When LiAne, then a member of the Sheriff's Mounted Patrol, reported the conversation to her husband, Gary Sc., a sheriff's deputy, LiAne became the subject of an internal affairs investigation into possible witness intimidation. Her daughter, a CHP officer, was told by her commanding officer that she could not speak with LiAne. LiAne's husband was threatened at work that " 'it was going to get ugly,' " and he eventually separated from the sheriff's department without his badge because of the circumstances surrounding this case. LiAne met with Alvarez's investigator, discussed her conversation with Y.G., and was subpoenaed to testify at defendant's trial. Just prior to her scheduled testimony, Alvarez told her that she would not be testifying, and that if she was called to the stand, she would be arrested by the sheriff's office for witness intimidation. Alvarez told her " 'there would be mudslinging' " and he did not want " 'mud to get on [defendant].' " LiAne was never arrested or charged with a crime related to defendant's case.
(6) A declaration from Michelle D., a neighbor of defendant's family, who heard the gunshot on the night of December 13, 2012. The sheriff's report generated from the incident did not accurately reflect the statement she provided to the responding deputy on the night of the incident. She was contacted by several members of the sheriff's department and someone from the CHP Internal Affairs division following the incident. At least one of the officers tried to discredit her by saying she was intoxicated.
(7) A declaration from Julie G., a family nurse practitioner who examined defendant in September 2011, detailing defendant's physical ailments. These included slowed and confused responses, and physical pain and injuries, from which, it was reported, defendant did not suffer prior to his July 29, 2011 assault.
(8) A declaration from Dr. Robert Graham, Julie's supervisor, who also examined defendant on September 8, 2011. Graham agreed with Julie's assessments, evaluations, and opinions of defendant's condition. Although defendant was in a bull riding accident in June 2011, he did not previously present with hypertension, kidney damage, or the other symptoms documented in the chart on September 8, 2011.
(9) A declaration from Dr. Matthew Sciaroni, a podiatrist who examined defendant on July 3, 2012. Defendant's chief complaint was right foot and ankle pain for many months' duration without improvement. Defendant reported that he had been " 'jumped' " by several people and did not specifically feel pain to his feet during the incident. An MRI taken on July 18, 2012, however, showed a stress fracture to two bones in defendant's right foot. Stress fractures to these bones require a considerable amount of force to produce. Given defendant's age at the time of the injury, he would have healed relatively quickly. Considering the condition of the injury when the MRI was performed, the original trauma would have been "significant."
(10) A declaration from defendant, stating that on July 28, 2011, beginning at around 11:30 p.m., he was held by Thomas, someone known as Jessie, Alicia, Summer, and Jaron. While he was being held, Alicia used her cell phone to record their conversation. He had listened to the recording and reviewed the transcript thereof, and both accurately reflected the conversation.
(11) A declaration from Kyle Scarber, who stated he was employed by the CHP for more than 20 years, and was Assistant Chief of the Central Division when he separated from his employment.
(a) Scarber had known Thomas and Ronnie for years and was aware that Thomas had a reputation for dishonesty and rebellion. In 2010, Scarber told Thomas he was no longer welcome on Scarber's property. That same year, Thomas came to Scarber's home after pulling a knife on Thomas's father. In about August of that year, Scarber caught Thomas burglarizing Scarber's barn. A few months later, Scarber received a call from an administrator at Sanger High School, saying that another student had accused defendant of possessing marijuana. The administrator indicated the student was Thomas. The charges defendant possessed marijuana while on campus or smoked marijuana were not substantiated.
(b) In May 2012, Scarber flew over Squaw Valley with a CHP pilot as part of Scarber's law enforcement responsibilities. He observed a marijuana crop on the S. property of approximately 200 to 500 plants. The sheriff's department was notified, but Scarber was never made aware of any investigation.
(c) In 2011, a mobile home owned by the Scarbers was set on fire. Fire authorities concluded it was arson. Defendant told Scarber that Thomas and Jaron were sending defendant a message that defendant was getting too close to Scarber and knew too much about their criminal activities.
(d) Scarber did not feel Alvarez was ready to be a zealous advocate and conduct a jury trial. To Scarber's knowledge, defendant, who had been out on bail for a few months as of November 2012, was willing to continue the trial until the defense was prepared to try the case. Defendant had knee surgery scheduled for December 3, 2012, and Alvarez was so advised. Scarber believed the surgery was necessitated by the beating defendant suffered on July 29, 2011, because defendant never complained of knee pain before that time. The surgery was performed under general anesthesia, and defendant was prescribed pain medication. The following day, he was still feeling the effects of the surgery and he vomited during jury selection. Alvarez failed to explain to the jury that defendant recently underwent surgery and that it was necessitated by the July 29, 2011 beating. Scarber asked Alvarez if he could "set the trial out," but Alvarez did not respond. Scarber heard a potential juror loudly ask if defendant was vomiting because he was nervous or because he was sick.
(e) The witness list presented at trial included only prosecution witnesses and no defense witnesses. At a meeting between Alvarez, Scarber, and defendant on December 8, a couple days after trial began, Alvarez suggested defendant take the stand and admit the rape, despite the fact he knew defendant always denied everything but consent. On December 10, outside court, Alvarez suggested it again. On December 11, Alvarez suggested defendant take the stand, admit the rape, and plead for mercy. Alvarez also suggested defendant say he was high. Scarber learned LiAne and Nicole were subpoenaed for the defense case. Nicole appeared, but left without being called to testify. LiAne did not testify.
(f) Alvarez failed to provide all the necessary information to expert witness Dr. Richard Leo, and refused Scarber's requests, based on defendant falling asleep in Little's patrol car and his condition when he was booked, to hire an expert on traumatic brain injury. Scarber, who served seven years in the United States Marine Corps and 25 years in the CHP, had observed several people who suffered head injuries and traumatic brain injury. When he visited defendant in jail on July 30, 2011, defendant showed signs of brain injury. He had difficulty speaking clearly and was unable to fully understand Scarber's statements to him.
(g) A neighbor in Squaw Valley owned a truck similar in color and shape to the one Scarber owned. Scarber had seen Alicia and Thomas drive that truck.
(h) Scarber and his brother were shot at on the night of December 13, 2012, while standing in Scarber's driveway. On or around December 11, Scarber found a threatening note on the fence just outside his home. He advised Alvarez about it. Internal Affairs contacted Alvarez about the note. Alvarez told them he was not Scarber's attorney and could not answer questions about Scarber. Alvarez told CHP that Scarber was paranoid. Alvarez shared information with Internal Affairs that Scarber provided Alvarez to assist with defendant's defense.
(i) Anthony Coelho was a prominent Fresno County businessman and had financial resources available to him that he used to support Margaret Mims's campaign for sheriff. After Scarber told Coelho that the sheriff's office's investigation in this case failed to comply with generally accepted law enforcement practices, Coelho indicated he would provide financial assistance in Scarber's bid to become sheriff. In 2011, Scarber considered running for sheriff in the 2014 election. He told several people about his intention.
In his first amended new trial motion, Magill claimed Coelho died "under suspicious circumstances" prior to trial.
(j) Scarber had a four-year-long extramarital affair with Egan in the late 1990's. Egan insisted he divorce his wife, but he refused. When he tried to break it off, Egan became angry and stalked him. Scarber requested assignments outside the Fresno CHP office to get away from her.
The People opposed the motion. As exhibits in support of their opposition, the People presented the following:
(1) A declaration from Attorney Alvarez.
(a) Alvarez denied ever asking or insinuating that defendant should commit perjury or lie about any aspect of the case. Defendant told Alvarez and Alvarez's investigator that he had consensual relations with Y.G. on June 29, 2011, and that was the crux of the defense case, as noted in Alvarez's opening statement to the jury. Alvarez did discuss with defendant the possibilities available, depending on his testimony, such as voluntary intoxication and not forming the intent to commit rape until after defendant entered the house; however, Alvarez was prepared to continue, and anticipated continuing with, the consent defense, as defendant always maintained that position.
(b) Alvarez retained Leo as an expert witness on false confessions and discussed with him the possibility defendant falsely confessed due to being beaten and threatened by civilians. Due to Leo's findings, however, Alvarez decided not to call him as a witness. Alvarez provided Leo's name to the prosecutor in keeping with his discovery obligations, but never provided his findings or discussed the matter other than to state he would not be calling Leo.
(c) Alvarez reviewed Graham and Julie's medical reports but made a tactical decision not to subpoena either person. The medical examinations were all post-July 29, 2011, and had little relevance to the events of that day, particularly in light of what was depicted on the videotape of his interview and the observations of law enforcement and medical personnel who dealt with defendant on July 29 and 30, 2011. Alvarez had "no credible basis" to allege the injuries subsequently diagnosed caused defendant to make a false confession. The issue was whether the confession was coerced, and from defendant's prior statements and anticipated testimony, the false confession was made due to threats to him and his family. That was always defendant's position. In addition, Jaron's testimony and defendant's anticipated testimony were sufficient to establish an argument that the confession was coerced.
(d) Alvarez made the tactical decision not to call LiAne as a witness based on his analysis that her testimony would have caused the case more harm than good. Alvarez never told her that she would be arrested if she testified, but did say that should she testify, the prosecutor would attempt to impeach her with the internal affairs investigation her actions generated, and Alvarez did not want defendant to be tainted with the misconduct that would be alleged against LiAne.
(e) Alvarez chose not to subpoena Alicia or Thomas, as he had no indication either would be helpful to the defense. In addition, having the jury learn that Thomas refused to come to court was, in Alvarez's opinion, beneficial to defendant's position. It was Alvarez's opinion that Alicia would have been a detrimental witness, and it was his intent to have defendant lay the foundation during his testimony for the recording she made on her cell phone.
(2) A declaration from Sheriff's Detective Chapman, who attempted to interview LiAne and her husband regarding allegations of witness intimidation Chapman was investigating. LiAne's husband informed Chapman that he did not wish to make a statement. An attorney informed Chapman that the attorney advised LiAne not to provide a statement. Chapman met with Y.G., who informed him that nothing had changed her willingness to prosecute the case. At no time did she say she did not want to cooperate with the prosecution or that she wanted to " 'withdraw charges.' "
In the first amended motion for new trial, Magill asserted that on January 26, 2012, Sheriff Mims told Chief Abrames of the CHP that Y.G. wanted to withdraw charges.
(3) A declaration from Sheriff's Sergeant Pursell, who was assigned to investigate a possible witness intimidation case involving Deputy Gary Sc. and Reserve Deputy LiAne Sc. on January 10, 2012. He was able to determine the Sc.'s knew defendant. As part of his investigations, he reviewed logs of Gary's inquiries into the Fresno Sheriff's database. One query, made August 2, 2011, was of the confidential victim's last name. Twenty-four others related to the Scarbers.
(4) A declaration from Y.G., in which she denied ever telling anyone that she wanted to " 'withdraw charges' " or did not want to cooperate with the prosecution in this case. On or about December 10, 2011, she attended a jewelry party at her sister's house. Around eight women were present. At the party, LiAne struck up a conversation with her. During the course of the conversation, LiAne insisted Y.G. show her exactly where Y.G.'s residence was. LiAne falsely stated she knew Y.G.'s brother. LiAne asked if Y.G. was the victim of the Squaw Valley rape. Y.G. was hesitant to answer, but LiAne said she had read all the reports and knew the details. Due to LiAne's representation that she was with the sheriff's department, Y.G. said it was her and that it was unnerving to be assaulted in a place you considered safe. Y.G. did not give LiAne a detailed account. She asked if LiAne knew the Scarber family. LiAne said no. At LiAne's request, Y.G. gave her Y.G.'s home telephone number. About a week later, Y.G. had a piano recital in Kingsburg. LiAne unexpectedly arrived with a male. Y.G. was unsure how she knew about the recital. After, LiAne asked for Y.G.'s cell phone number. Y.G. gave it to her. While leaving the recital, Y.G.'s nephew said LiAne looked like the passenger in the truck from an August or September incident in which two females were at the end of Y.G.'s driveway, asking her nephew for her telephone number. On December 20, LiAne telephoned Y.G. to see if she wanted to go Christmas shopping and to lunch. Y.G. declined. LiAne telephoned again on January 4, 2012, but Y.G. was not at home.
(5) A declaration from Sheriff's Detective Davis, who was assigned on December 12, 2012, to handle the crime scene of a missing person (defendant). A travel-size liquor bottle was located on the ground just inside the gate to the Scarber residence. A metal flashlight was found on the ground north of the driveway and west of the gate. Possible blood was found on the flashlight and on the ground and leaves in the area. Two crutches were found with possible blood on them. One shoe was found with possible blood on it. On a bookshelf in defendant's room was a printout of a Google search with the name " 'Brandon Smith,' " a date of birth in July 1989, a Texas driver's license number, and an address in Odessa, Texas.
(6) A declaration from Isaac.
(a) During defendant's return to Fresno, defendant admitted he fled to Mexico during his trial. He also admitted using a false Texas identification in the name of Brandon Smith. Defendant changed his appearance and obtained numerous tattoos during the time of his disappearance.
(b) On August 1, 2011, Isaac was advised that defendant wanted to report he was the victim of an assault that occurred on July 30, 2011. On August 2, 2011, Isaac escorted defendant to headquarters for the interview. Defendant was able to walk to headquarters without any complaints of pain, and he followed Isaac's instructions and was oriented and alert throughout the interview. He answered questions appropriately and recalled details of the events. During the interview, defendant stated that after he was beaten, Thomas did not get into the car with him. The driver of the car told defendant to get in the back, because they were going to drop defendant off at the police station. "Messy," Messy's girlfriend, Jesse, and the driver took him to the sheriff, while Thomas stayed behind at the house.
(c) At approximately 2330 hours on July 29, 2011, Isaac made contact with Larralde at or near the sheriff's substation in Squaw Valley. Isaac asked Larralde to look for Y.G.'s cell phone in the fields near the S. residence. At approximately 0330 hours, Isaac received a call from Larralde, advising that he had obtained the clothing, sunglasses, and knife that were used in the rape and that defendant had admitted to the rape. Shortly after, Isaac received a call that defendant had been apprehended.
(7) A declaration from Sheriff's Detective McCormick, who interviewed Lauren on July 29, 2011, concerning the rape. Lauren told McCormick that defendant was " 'weird,' " because he kept sending her naked pictures of his penis and asking her to send pictures of herself naked. Lauren said she thought this was " 'creepy' " and so stopped talking to him. As part of her investigation, McCormick listened to jail calls made by defendant. One was made on August 2, 2011, to " 'Kirban.' " In it, defendant stated he had made some " 'bad choices,' " but that the calls were recorded so he did not want to say too much.
At the October 9 hearing, Lauren denied making these statements.
The transcript of the call appended to McCormick's declaration reflects defendant added, "And I just let temptation lead me down the wrong path."
(8) A declaration from Sheriff Mims, in which she stated she had a conversation with Chief Abrames in January 2012 but denied telling him Y.G. was going to withdraw charges against defendant.
Magill gave written notice of his intent to call Abrames and Alvarez at the hearing on the new trial motion in light of the prosecution's opposition to the motion. The court declined to permit additional live testimony, finding no authority requiring it to do so, and stating it had permitted the October 9 hearing out of an abundance of caution.
On December 19, 2013, a hearing was held on the motion. After lengthy argument, the court denied the motion.
2. Analysis
a. General legal principles
In most instances, " '[w]e review a trial court's ruling on a motion for a new trial under a deferential abuse-of-discretion standard.' [Citations.] ' "A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion." ' [Citations.]" (People v. Thompson (2010) 49 Cal.4th 79, 140.) Thus, there is a strong presumption the trial court properly exercised its discretion. (People v. Davis (1995) 10 Cal.4th 463, 524.) In determining whether discretion was exercised properly, "each case must be examined on its own facts [citation], recognizing that the trial court is in the best position to determine the genuineness and effectiveness of the showing in support of the motion [citation]." (People v. Minnick (1989) 214 Cal.App.3d 1478, 1481; accord, People v. Turner (1994) 8 Cal.4th 137, 212, overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536, 555, fn. 5; People v. Hill (1969) 70 Cal.2d 678, 698.)
The foregoing principles apply to a new trial motion brought on the ground of newly discovered evidence. (See, e.g., People v. McCurdy (2014) 59 Cal.4th 1063, 1108; People v. Howard (2010) 51 Cal.4th 15, 42-43; People v. Delgado (1993) 5 Cal.4th 312, 328; People v. Greenwood (1957) 47 Cal.2d 819, 821.) Where the motion is based on the nonstatutory ground of ineffective assistance of counsel, however, we uphold the trial court's factual findings, whether express or implied, if they are supported by substantial evidence, but we then exercise our independent judgment in measuring the facts, as found by the trier, against the constitutional standard. (People v. Taylor (1984) 162 Cal.App.3d 720, 724-725; People v. Callahan (2004) 124 Cal.App.4th 198, 209.)
Defendant appears to contend de novo review is appropriate whenever the denial of a new trial motion raising claimed errors affecting the fairness of the judgment is at issue. As authority for his assertion, he cites highly selective quotations from People v. Ault (2004) 33 Cal.4th 1250. Ault was concerned with the appropriate standard of review of a trial court's order granting a defendant's motion for a new trial on grounds of prejudicial juror misconduct. (Id. at p. 1255.) We are aware of no authority extending its holding to every instance in which a defendant makes a claim, in the context of a new trial motion, that his or her constitutional rights were violated. Indeed, People v. Hoyos, supra, 41 Cal.4th at page 917, footnote 27, in which the California Supreme Court applied the abuse of discretion standard to the denial of a new trial motion based on the constitutional grounds of an asserted Brady violation, appears to reject defendant's claim. In any event, we would uphold the trial court's denial of defendant's new trial motion even were we to apply the de novo standard of review to all his claims.
Finally, "[a] motion for new trial may be granted only upon a ground raised in the motion. [Citations.]" (People v. Masotti (2008) 163 Cal.App.4th 504, 508.) Where, as here, the trial court has made a "comprehensive statement denying the motion, we presume the court considered and rejected each ground raised in defendant's motion." (People v. Lightsey (2012) 54 Cal.4th 668, 730.) We will not assume, absent an affirmative contrary showing, that the court failed to consider a point simply because it did not mention it.
Defendant states: "The trial court denied [defendant's] motion for a new trial, mistrial, and dismissal. [Citation.] [Defendant] does not concede any of the findings should he not discuss them herein; he disputes all of the trial court's findings and asserts the trial court abused its discretion in denying the motion(s)." Defendant is free to dispute what he will. We, however, will address only those matters that he actually discusses. It is not our role to concoct a theory supportive of his overarching claim of prejudicial error. " '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.]" (People v. Stanley, supra, 10 Cal.4th at p. 793.) Moreover, ' "[i]t is the duty of counsel to refer us to the portion of the record supporting [defendant's] contentions on appeal. [Citations.] . . . "It is neither practical nor appropriate for us to comb the record on [defendant's] behalf." ' [Citation.]" (People v. Smith, supra, 61 Cal.4th at p. 48.)
b. Purported criticism of attempts to redress grievances
Defendant contends the trial court erred by criticizing defendant while praising Jaron, Thomas, and the other civilians for solving the crime. Based on the court's comments in this regard, defendant claims denial of the new trial motion "represents constitutional error and manifests injustice such that the conviction should be reversed and a new trial granted."
We have already rejected defendant's claim the comments showed bias on the part of the trial court. We have also concluded defendant's statements to detectives were properly admitted, but that if error occurred, it was harmless beyond a reasonable doubt. Defendant furnishes no reason for us to depart from our conclusions.
Defendant also asserts that while his new trial motion was poorly written, "contrary to the trial court's finding, the motion did contain serious issues that supported granting [defendant] a new trial." Defendant fails to include a citation to the record with respect to the finding to which he refers, and we are uncertain what he is talking about. The trial court made no finding based on whether the original new trial motion was error- free, nor did it suggest either the original or the first amended motion was frivolous or failed to present substantial issues. It simply asked, when presented with a first amended motion that was two pages longer than the original motion, what was different. At the outset of its ruling on defendant's request for a new trial, mistrial, or dismissal, the court stated it had read and reviewed both motions. That the motion may have raised legitimate legal issues does not somehow mean the trial court was required to find in defendant's favor thereon.
Defendant complains that the trial court regretted granting several continuances and criticized how long it took Magill to file the new trial motion. The record on appeal does not support this contention, and such regret and/or criticism would not constitute cause for reversal in any event.
c. Brady
Defendant contends the trial court erred by finding the prosecution provided the defense with all relevant and material discovery regarding this case, and so concluding Brady was not violated with respect to the sheriff's department's dispatch records. He claims the dispatch records would have impeached Jaron and various law enforcement witnesses concerning law enforcement's knowledge of the civilians' conduct toward defendant, which in turn would be relevant to whether defendant's statements were voluntary.
Although not listed in section 1181 as a basis upon which a new trial may be granted, a Brady violation — like a claim of ineffective assistance of counsel — can constitute nonstatutory grounds for the granting of a new trial. (See People v. Hoyos, supra, 41 Cal.4th at pp. 916-917; People v. Fosselman (1983) 33 Cal.3d 572, 582-583.)
In part, the dispatch records showed Brittany contacted the sheriff's department at 3:15 a.m. on July 30, 2011. According to the incident recall printout, she requested extra patrol coverage throughout the night, related to the earlier rape, because she heard tapping on her bedroom window at some point but did not report it. At the hearing on the new trial motion, Magill argued this was "a conspiracy call" that evidenced a conspiracy in place with Little and Larralde, and that the call advised the deputies that defendant had been beaten to the point he was willing to confess and so they should come back and pick him up. Magill argued this would have permitted the defense to raise the issue of a conspiracy to wrongfully convict defendant, and it would have challenged the credibility of both deputies concerning their reason for being there when defendant was delivered. We note that at trial, Little testified he and Larralde had had another call "further up the road," and so were already in the area for a while when they started focusing on the search for Y.G.'s cell phone.
"[T]he suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." (Brady, supra, 373 U.S. at p. 87.) The duty to disclose such evidence is wholly independent of the prosecutor's obligation under section 1054 et seq. (People v. Hayes, supra, 3 Cal.App.4th at p. 1244), exists even where there has been no request by the accused (United States v. Agurs (1976) 427 U.S. 97, 107), encompasses both impeachment and exculpatory evidence (United States v. Bagley, supra, 473 U.S. at p. 676), and extends to evidence known only to law enforcement investigators and not to the prosecutor (Youngblood v. West Virginia (2006) 547 U.S. 867, 869-870; Kyles v. Whitley (1995) 514 U.S. 419, 438). "In order to comply with Brady, therefore, 'the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.' [Citations.]" (People v. Salazar (2005) 35 Cal.4th 1031, 1042, quoting Kyles v. Whitley, supra, at p. 437.)
" 'The Brady rule is based on the requirement of due process. Its purpose is not to displace the adversary system as the primary means by which truth is uncovered, but to ensure that a miscarriage of justice does not occur. Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial.' [Citations.]" (In re Sodersten (2007) 146 Cal.App.4th 1163, 1225, quoting United States v. Bagley, supra, 473 U.S. at p. 675.) Disclosure must be made at a time when it would be of value to the accused. (People v. Superior Court (Meraz) (2008) 163 Cal.App.4th 28, 51.)
Although "the term 'Brady violation' is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence — that is, to any suppression of so-called 'Brady material' — . . . there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." (Strickler v. Greene (1999) 527 U.S. 263, 281, fn. omitted.) Thus, to merit relief on due process grounds, "the evidence a prosecutor failed to disclose must have been both favorable to the defendant and material on either guilt or punishment. Evidence would have been favorable if it would have helped the defendant or hurt the prosecution, as by impeaching one of its witnesses. Evidence would have been material only if there is a reasonable probability that, had it been disclosed to the defense, the result would have been different. The requisite reasonable probability is a probability sufficient to undermine confidence in the outcome on the part of the reviewing court. It is a probability assessed by considering the evidence in question under the totality of the relevant circumstances and not in isolation or in the abstract. [Citation.]" (People v. Dickey (2005) 35 Cal.4th 884, 907-908.) "A showing by the [defendant] of the favorableness and materiality of any evidence not disclosed by the prosecution necessarily establishes at one stroke what in other contexts are separately considered under the rubrics of 'error' and 'prejudice.' For, here, there is no 'error' unless there is also 'prejudice.' [Citations.] [¶] It follows that harmless-error analysis under Chapman . . . , with its standard of 'harmless beyond a reasonable doubt,' is not implicated." (In re Sassounian (1995) 9 Cal.4th 535, 545, fn. 7.)
We will assume the dispatch records would have had some impeachment value with respect to prosecution witnesses' testimony concerning the events of the early morning hours of July 30, 2011. Nevertheless, there is simply no reasonable probability that had the records been disclosed to the defense in a timely manner, the result would have been different. It is speculative to believe state action might have been shown with respect to defendant's statements to the civilians. Moreover, as we have explained, even if defendant's confession to detectives could have been shown to be involuntary or false, the evidence was uncontradicted that Y.G. was raped and that defendant's DNA was found shortly afterward in her vagina. Defendant was the only person who could testify directly concerning why he confessed to the detectives and that his intercourse with Y.G. was consensual. Because he voluntarily absented himself from trial, no such evidence was ever presented.
d. Newly discovered evidence
Next, defendant says the trial court erred by not granting a new trial based on newly discovered evidence, specifically Lauren's testimony.
Pursuant to subdivision 8 of section 1181, a court may grant a new trial "[w]hen new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial." The requisite showing is well settled: " 'To entitle a party to a new trial on the ground of newly discovered evidence, it must appear, — "1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits." ' " (People v. Martinez (1984) 36 Cal.3d 816, 821.)
A motion for a new trial made on this ground is looked upon with disfavor (People v. Shoals (1992) 8 Cal.App.4th 475, 485), and "[w]e will only disturb a trial court's denial of such a motion if there is a clear showing of a manifest and unmistakable abuse of discretion. [Citations.]" (People v. Mehserle (2012) 206 Cal.App.4th 1125, 1151.) Nevertheless, such a motion " 'should be granted when the newly discovered evidence contradicts the strongest evidence introduced against the defendant.' " (People v. Delgado, supra, 5 Cal.4th at p. 329.)
" '[A] new trial on the ground of newly discovered evidence is not granted where the only value of the newly discovered testimony is as impeaching evidence' or to contradict a witness of the opposing party. [Citations.]" (People v. Hall (2010) 187 Cal.App.4th 282, 299; accord, e.g., People v. Moten (1962) 207 Cal.App.2d 692, 698.) However, a new trial " 'should undoubtedly be granted where the showing is such as to make it apparent to the trial court that the defendant has, without fault on his part, not had a fair trial on the merits, and that by reason of the newly discovered evidence the result would probably be, or should be, different on a retrial.' " (People v. Love (1959) 51 Cal.2d 751, 757.) The test of whether a different result in retrial is reasonably probable "is not a subjective one whether a particular trier of fact would be persuaded by the new evidence to reach a different conclusion, but rather is an objective one based on all the evidence, old and new, whether any second trier of fact, court or jury, would probably reach a different result." (People v. Huskins (1966) 245 Cal.App.2d 859, 862.) "[W]hen a defendant makes a motion for a new trial based on newly discovered evidence, he has met his burden of establishing that a different result is probable on retrial of the case if he has established that it is probable that at least one juror would have voted to find him not guilty had the new evidence been presented." (People v. Soojian (2010) 190 Cal.App.4th 491, 521.)
Lauren's testimony, as given at the offer of proof hearing, would have contradicted evidence (assuming the hearsay hurdle with respect to what Thomas purportedly told her could be overcome) Alicia and the other civilians only beat defendant after defendant had already confessed to them. It would not, however, have added anything on the issue of whether there was state action. Moreover, without defendant's testimony to explain why he confessed to detectives, Lauren's testimony about Alicia and her family would have been irrelevant. Accordingly, even assuming Lauren's testimony was newly discovered, not cumulative, and could not have been produced at trial with reasonable diligence, it was not such as to render a different result probable on retrial. Thus, the trial court did not err by denying the new trial motion on this ground.
In the trial court, Magill presented both Lauren's testimony and the dispatch records as newly discovered evidence. It is unclear whether defendant is including the dispatch records as newly discovered evidence in his claim on appeal. In any event, for the reasons discussed in conjunction with defendant's Brady claim, ante, the dispatch records do not render a different result probable upon retrial.
e. Assessment of Alvarez's performance
In the course of its ruling on defendant's motion, the trial court stated:
"In the efforts to claim ineffectiveness of Defendant's trial counsel, it must be borne in mind that trial counsel pursued the [Evidence Code section] 402 hearing regarding the voluntariness and admissibility of Defendant's confession. . . . [A]t the conclusion of that hearing, the Court found that the confession was freely and voluntarily made, and accordingly admissible at trial.
"In addition to pursuing a[n Evidence Code section] 402 hearing regarding the confession, trial counsel also made a motion pursuant to Evidence Code Section 782. Defendant's trial brief also attempts to fault trial counsel for revealing contact with an expert, a Dr. Leo, in seeking an expert opinion with respect to the confession. [¶] . . . [¶]
"In our case trial counsel apparently consulted with an expert, and Defendant fails to show how that expert, or any expert, would have been able to provide favorable testimony. In that respect as well, Defendant has failed to show prejudice.
"The claim that this was an abandonment of a defense is rejected. Rather, it shows an effort to mount a defense. And trial counsel cannot be faulted for that effort.
"In fact, in all respects trial counsel's declaration . . . is complete, persuasive, and dispositive regarding his preparation, strategy and tactics, all reflecting his effective assistance. In all respects Defendant has failed to show prejudice."
The trial court summarized the timeline of defendant's absence from trial and the proceedings that followed. It then stated:
"What has been presented in support of this motion is totally bereft of any good cause or merit to grant the motion. The claim that Mr. Alvarez advised his client to lie is totally and completely rejected. Simply put, Mr. Alvarez did the very best he could with the little that he had to work with, namely, a voluntary confession and the DNA evidence. The conduct and actions of others, namely, [Thomas], [Jaron], and others, as forming a basis for this motion is nothing more than a distraction from the evidence of Defendant's guilt. [¶] . . . [¶]
"The Court recognizes that it is likely and probable that some of the Defendant's injuries reflected in the declarations were due in part to the assault at the hands of others. But that doesn't detract or derogate from Defendant's culpability for the crime.
"As previously referenced, Mr. Alvarez did the very best he could considering the overwhelming evidence against his client. Mr. Alvarez'[s] declaration . . . makes it abundantly clear that he tried this case as effectively as he could and provided sound legal advice and counsel as reflected in his declaration."
Defendant now contends the trial court erred in assessing Alvarez's performance for various reasons.
(i) Failure to apply correct legal authority
Defendant first contends the trial court did not apply the correct legal authority to all the evidence within the entire record. We can only surmise, from the snippet defendant quotes from United States v. Cronic (1984) 466 U.S. 648, 656, that defendant means the trial court erred by rejecting defendant's claim of ineffective assistance of counsel. Even if the trial court reached the wrong result (it did not), this would not mean it failed to apply the correct legal authority.
(ii) Duty to present defense/deficient performance
Defendant next contends the trial court's holding disregarded Alvarez's duty to present a defense even if defendant was not available to testify. In a somewhat confusing amalgam of assertions punctuated by occasional authorities of questionable relevance, defendant challenges multiple facets of Alvarez's representation.
Consent/state of mind
First, defendant points to Alvarez's failure to attempt to introduce evidence of defendant's state of mind (i.e., that the encounter with Y.G. was consensual) by means of defendant's statements to that effect that were made to Scarber and a defense investigator. Defendant seems to suggest this evidence would have been admissible pursuant to Evidence Code sections 1250 and 1251. This is not necessarily so. Admissibility under those sections is subject to Evidence Code section 1252, which provides: "Evidence of a statement is inadmissible under this article if the statement was made under circumstances such as to indicate its lack of trustworthiness." "A statement is trustworthy within the meaning of section 1252 of the Evidence Code when it is ' "made in a natural manner, and not under circumstances of suspicion" ' " (People v. Harris (2013) 57 Cal.4th 804, 844), as when it is " ' "made at a time when there was no motive to deceive' " ' " (People v. Riccardi (2012) 54 Cal.4th 758, 821, overruled on another ground in People v. Rangel (2016) 62 Cal.4th 1192, 1216). Alvarez might reasonably have believed any denials defendant made to his father or the defense investigator would not be deemed trustworthy enough for admission, since not wishing to admit to one's law enforcement father that one is a rapist easily could furnish a motive to deceive.
Evidence Code section 1250 provides: "(a) Subject to [Evidence Code] Section 1252, evidence of a statement of the declarant's then existing state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) is not made inadmissible by the hearsay rule when: [¶] (1) The evidence is offered to prove the declarant's state of mind, emotion, or physical sensation at that time or at any other time when it is itself an issue in the action; or [¶] (2) The evidence is offered to prove or explain acts or conduct of the declarant. [¶] (b) This section does not make admissible evidence of a statement of memory or belief to prove the fact remembered or believed."
Evidence Code section 1251 provides: "Subject to [Evidence Code] Section 1252, evidence of a statement of the declarant's state of mind, emotion, or physical sensation (including a statement of intent, plan, motive, design, mental feeling, pain, or bodily health) at a time prior to the statement is not made inadmissible by the hearsay rule if: [¶] (a) The declarant is unavailable as a witness; and [¶] (b) The evidence is offered to prove such prior state of mind, emotion, or physical sensation when it is itself an issue in the action and the evidence is not offered to prove any fact other than such state of mind, emotion, or physical sensation."
Defendant recognizes Magill did not argue this theory of admissibility in his challenges to Alvarez's performance. This being the case, we read nothing into Alvarez's failure to address it in his declaration.
Alicia's recording
Next, defendant faults Alvarez for failing to cite to relevant statutory authority that, defendant says, would have permitted him to introduce Alicia's recording even without defendant's testimony. He says the prosecution was the original proponent of the evidence, having introduced it during its case-in-chief; the authenticity of the recording was conceded by the prosecution, so no further authentication was required; in any event, the recording was authenticated by its content; and Little could have laid any required foundation as to Alicia's voice since he had spoken to her and she gave him the recording. Defendant then contends Evidence Code section 356 allowed Alvarez to introduce the entire recording, since the prosecution introduced the subject of the recording through Isaac's testimony that it was poor quality and she could not make out much of what was said.
Again, since Magill did not make this argument, as defendant acknowledges, we read nothing into Alvarez's failure to address it in his declaration.
As previously described, Little testified at trial to listening to the recording (which was difficult to understand), taking possession of Alicia's cell phone, and turning the phone over to Isaac. Isaac testified that she listened to the cell phone recording, could not make out much of what was said, recorded the contents of the phone with a digital recorder, and had that recording put in CD form. It was an accurate representation of what she had heard on Alicia's phone.
The recording (CD) was marked as defense exhibit L. Alvarez represented defendant would be testifying, and recognized Alicia's voice and also his own voice during portions of the recording. The corresponding transcript was marked as defense exhibit K.
The prosecutor took the position the recording was hearsay. She stated that other than for impeachment purposes, the only CD she intended to introduce at trial was of defendant's statement. The prosecutor explained that defense counsel sent her a transcript of the cell phone recording that she thought was inaccurate. She subsequently had her secretary prepare the transcript marked as exhibit K, although there were still portions she thought were unclear.
The trial court listened to the recording. It observed that a substantial portion was inaudible and involved unknown speakers. The court confirmed with Alvarez that if a foundation was established, it would occur during defendant's testimony. The court and counsel then moved on to other matters.
Evidence Code section 356 provides: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." (Italics added.)
As the record clearly establishes, no part of the recording from Alicia's phone was ever given in evidence. (Cf. People v. Harrison (2005) 35 Cal.4th 208, 239.) Evidence that there was such a recording and that the voices thereon were extremely loud and yelling, and the fact the subject of the recording was introduced through testimony, do not satisfy the threshold requirement of the statute.
Evidence bearing on Y.G.'s credibility
With no more support than an incorrect citation to the reporter's transcript, defendant faults Alvarez for deciding not to introduce "substantial evidence" bearing on Y.G.'s credibility. This appears to be a reference to supposed information that Y.G. purportedly notified someone in the sheriff's department that she wanted to drop charges against defendant. Since Y.G. herself disputed this information, and we have no way of knowing what other witnesses or evidence — if any — Alvarez might have produced, we cannot say Alvarez should have introduced evidence in this regard.
Challenge to voluntariness of statements
Defendant says Alvarez's performance was deficient in terms of how he challenged the prosecution's case regarding the voluntariness of defendant's statements. He appears to suggest Scarber could have been called as a witness concerning defendant's health before and after his interaction with Alicia and the others, and he accuses Alvarez of "unnecessarily rushing the case to trial" by not seeking a continuance when defendant vomited during jury selection.
Scarber could not have explained away how defendant appeared in the video recording of his statement to detectives. It is uncontradicted that defendant was responsive, coherent, and able to give a detailed account of what occurred. In addition, Alvarez explained his tactics and reasoning in his declaration, including that defendant maintained his confession was coerced because of threats made against him and his family. The trial court clearly found Alvarez to be credible, and we cannot say Alvarez's assessment of the issue was unreasonable.
Defendant vomited during jury selection on December 5, 2012 (not December 4, as stated in Scarber's declaration), two days after having knee surgery. At the time, Alvarez was conducting voir dire of a prospective juror in seat number three. The prospective juror asked if defendant was ill or afraid. Alvarez responded that he was ill, but that he was not contagious, so nobody needed to be concerned. We reject defendant's claim Alvarez's performance in this regard was somehow deficient.
Suggesting abandonment of consent defense
Defendant says Alvarez's performance was deficient because he suggested that defendant should consider admitting the rape in order to allow Alvarez to argue to the jury that the intent to commit rape was not formed until defendant had already entered the house. Because Alvarez's performance was deficient, defendant argues, his explanation of his tactics and strategy should not be given any deference.
In his declaration, Alvarez stated he discussed with defendant the possibilities available depending on defendant's testimony. One of the things discussed was the possibility of negating the section 667.61, subdivision (a) provision of rape during commission of first degree burglary if Alvarez could argue to the jury that the intent to commit rape was not formed until defendant had already entered the house. According to Alvarez, he simply tried to lay out all the possible directions the case might go, depending on defendant's testimony, but Alvarez was prepared to continue, and anticipated continuing with, the consent defense, since defendant had always maintained that position.
The trial court clearly found Alvarez credible, and defendant cites no authority (and we have found none) that permits us to ignore this finding. Moreover, even assuming Alvarez strongly suggested defendant take a different position, it would not constitute deficient performance. An attorney would be remiss if he or she did not discuss various possibilities with the client and make recommendations with respect thereto.
f. Prosecution's failure to call Thomas as a witness
Defendant contends the trial court erred in impliedly finding Alvarez was not ineffective for failing to object to Thomas not being called as a witness by the prosecution. "No authority is cited supporting this theory. The record does not show that defendant was in any way prevented from calling [Thomas] if defendant had desired to do so. There is no general requirement that the prosecutor call as a witness every person who may have material information. [Citation.] . . . There is no suggestion in this case that the prosecution did anything, either by delaying the trial . . . or otherwise, to impede defendant's opportunity to call [Thomas] as a witness if defendant so desired." (People v. Rodriguez (1962) 202 Cal.App.2d 191, 195, disapproved on another ground in Kellett v. Superior Court (1966) 63 Cal.2d 822, 826, fn. 3.) "The defense was responsible for securing the presence of any witness it wanted to call at trial, regardless of whether the prosecution would also be using that witness." (People v. Harrison, supra, 35 Cal.4th at p. 241.)
According to the prosecutor's representation, she served Thomas by mail and anticipated he would appear, based upon her discussions with him and his mother. When he did not appear, she could not seek issuance of a bench warrant for him because he was never personally served.
An objection to the prosecution's failure to call Thomas as a witness would have lacked merit. "Counsel may not be deemed incompetent for failure to make meritless objections." (People v. Coddington (2000) 23 Cal.4th 529, 625, superseded by statute on another ground as stated in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1107, fn. 4 & overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) B. Refusal to Issue Body Attachments and Compel Testimony
1. Background
In the written offer of proof filed in advance of the October 9 hearing, Magill represented that Alicia and Summer both had been personally served. With respect to Alicia, Magill asserted she was part of the group of people who beat up defendant before turning him over to deputies; she threatened defendant with harm unless he confessed to raping Y.G.; she recorded part of defendant's confession on her cell phone, but the first several minutes were missing and much was unintelligible; she stated in the recording that she was gang raped in the past, and so her motive/bias toward defendant based on her past experience should be explored; and Magill believed she was subpoenaed by the prosecution but failed to appear at trial. Magill further asserted Alicia was aware Thomas grew marijuana and sold it for profit, his home was known as a drug house, and there was a field of marijuana approximately 50 yards from the S. residence. Magill also represented that Alicia's neighbor owned a truck that was similar in appearance to the one belonging to Scarber; Alicia had been seen driving that truck; and Y.G. alleged a pickup truck belonging to Scarber followed her, but she never identified the driver.
With respect to Summer, Magill asserted she was in the vehicle, as a driver or passenger, of the group of people who beat defendant; Magill believed Summer owned the vehicle; Summer directly impeached Ronnie's testimony as to how defendant made the confession; and Summer would testify that Thomas made the phone calls to gather the group of people who beat up defendant.
At the outset of the October 9 hearing, the court ordered witnesses excluded at Magill's request. Magill stated for the record that among the witnesses whom he subpoenaed, Alicia and Summer were present.
Based on the written offer of proof viewed in light of an anticipated claim of ineffective assistance of trial counsel, the prosecutor suggested Alicia's Fifth Amendment rights might be implicated, and in any event, her testimony was cumulative to some degree of Jaron's testimony. The prosecutor also suggested there was a tactical reason not to call Alicia at trial, as she potentially could corroborate Jaron's and Ronnie's testimony. With respect to Summer, the prosecutor expressed uncertainty as to how her expected testimony would impeach that of Ronnie. The prosecutor also asserted that if Summer testified that Thomas made a phone call to gather a group of people, it would be hearsay and inadmissible.
Partway through the presentation of testimony, Magill related that Alicia and Summer were gone. As they responded to the subpoenas and neither he nor the court released them, he asked the court to issue body attachments for both and to continue the hearing to another date so they could be compelled to be in court. They were to be his final two witnesses.
The court reviewed the written offer of proof as to both. It then expressed as "one concern among others" that if body attachments were issued, there was no way of knowing when Alicia and Summer would be brought into court. The court noted it would be unavailable, due to a trial assignment, from the following Monday until October 24. Because there was no way to determine when or even if body attachments would be served, issuing them "would ultimately protract these proceedings that have been protracted in any event." The court observed that it had heard from six witnesses that day, and all were somewhat cumulative of the testimony of other witnesses. It reiterated its impression that if it issued a body attachment, "it would inordinately delay these proceedings that have been delayed perhaps too much already."
Magill argued that based on Lauren's testimony at the hearing, it was even more important that the defense have the opportunity to cross-examine Alicia, as Lauren's testimony corroborated the defense theory of the case. The prosecutor responded that Lauren's testimony highlighted the fact Alicia might have a Fifth Amendment right not to testify. The prosecutor "guess[ed]" Alicia would assert it if she was brought in involuntarily. Thus, it was not certain issuing a body attachment and bringing Alicia in would have any impact on the case. The prosecutor argued Alicia's testimony also would be cumulative and take an undue consumption of time for purposes of a claim of ineffective assistance of counsel.
After a brief recess, the court declined to issue a body attachment for either individual. It reiterated that with a body attachment, there was no way to know when they would be brought to court or if it would be on separate dates. The court observed there was a briefing schedule already in place for the new trial motion, and, based on the written offer of proof, the testimony was somewhat cumulative.
Magill argued that Alicia was even more relevant than was shown in the written offer of proof, in light of defendant's testimony that he was beaten before he made his statement, and Lauren's testimony about Thomas bragging about the beating and Alicia previously bragging about killing someone. Magill represented that Alicia was "a linchpin in the motion for new trial now because . . . she provides the basis for [defendant's] false confession." If Alicia testified defendant was beaten before he made the statement, that would be inconsistent with the testimony of Ronnie and Brittany. If Alicia exercised her Fifth Amendment privilege, the court could consider that in a motion for new trial with respect to the credibility of the defense theory of the case. The trial court's views remained the same.
The next day, the defense filed an ex parte application/motion for reconsideration. It was denied.
2. Analysis
"Under the Sixth Amendment to the United States Constitution, a criminal defendant has the right 'to have compulsory process for obtaining witnesses in his favor.'. . . [¶] . . . 'Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.' [Citations.]" (In re Martin (1987) 44 Cal.3d 1, 29.) "The right to compulsory process is independently guaranteed by the California Constitution. In the words of article I, section 15, 'The defendant in a criminal cause has the right . . . to compel attendance of witnesses in the defendant's behalf . . . .' " (Id. at p. 30.)
"A defendant claiming a denial of compulsory process must plausibly show that the missing testimony 'would have been both material and favorable to his defense.' [Citations.] Moreover, the constitutional right to compulsory process is not 'an unfettered right to offer testimony' that 'automatically and invariably outweigh[s] countervailing public interests.' [Citation.] A defendant claiming a violation of this right must establish both that he was deprived of the opportunity to present material and favorable evidence and that the deprivation was arbitrary and disproportionate to any legitimate purpose. [Citation.] At bottom, ' "[i]n order to declare a denial of [due process based on the denial of compulsory process] we must find that the absence of . . . fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial." ' [Citation.]" (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 367-368.)
Defendant has failed to establish a violation of his constitutional rights.
When a witness fails to appear pursuant to a subpoena, "[t]he court, upon proof of the service of the subpoena . . . , may issue a warrant to the sheriff of the county in which the witness . . . may be located and the sheriff shall . . . arrest the witness . . . and bring him or her before the court." (Code Civ. Proc., § 1993, subd. (a)(1); see People v. Brinson (1961) 191 Cal.App.2d 253, 258.) It appears, as defendant observes, the denial of a request to issue a bench warrant or body attachment is reviewed for abuse of discretion (People v. Marseiler (1886) 70 Cal. 98, 102), although where the erroneous denial results in the defendant's inability to present, at trial, a witness whose testimony is material and important to the defense, the error may be one of constitutional magnitude (see People v. Bossert (1910) 14 Cal.App. 111, 116).
In the present case, Alicia and Summer were not subpoenaed for trial, but only for an offer of proof hearing related to a motion for new trial that was expected to be based primarily on a claim of ineffective assistance of trial counsel. Defendant fails to show his written offer of proof was insufficient for the trial court's consideration given the limited purpose of the proffered evidence, particularly in light of the fact the court was well aware of the content of Jaron's and Ronnie's trial testimony, the existence and circumstances of the recording made by Alicia on her cell phone, and the content of defendant's and Lauren's testimony at the October 9 hearing. In addition, the court was entitled to take into account the already protracted nature of the proceedings, and the likelihood further delay of an unknown and unascertainable length would not be beneficial, given the probability Alicia would exercise her privilege against self-incrimination and that any testimony Summer might give about Thomas making a phone call would be objectionable as hearsay. (See People v. Reed (2018) 4 Cal.5th 989, 1004.)
Defendant claims Alicia was on probation and her probation officer should have had her contact information, so she should not have been difficult to locate. This information was not before the trial court and is not properly before this court, and we decline to join in defendant's speculation.
We conclude the trial court did not abuse its discretion or violate defendant's constitutional rights by declining to issue the requested body attachments. C. Refusal to Release Subpoenaed Documents
1. Background
At the preliminary hearing, Isaac testified that in the course of trying to identify a suspect in the rape, some people stated that Thomas and some of his friends had been in trouble. Since there were no other leads, she ran a records check on the group. She discovered that law enforcement had had contact with Cody, Jaron, and defendant.
At trial, Ronnie testified that at some point, defendant and Thomas were close, but they had a falling out sometime before July 2011. Ronnie explained that defendant "took a bad turn with drugs" of which Thomas did not wish to be a part. Asked by Alvarez if she also had a concern with Thomas associating with gang members and things like that, Ronnie replied that she did not know if they were all gang members, but she had a problem with Thomas associating with "anybody that isn't walking a real good road . . . ." Ronnie testified that Y.G. asked her one time if Y.G. had anything to be concerned about when she went to Ronnie's house, and Ronnie assured her that it was not a problem, and that the people who were "sketchy" were not allowed to hang around the house. Ronnie testified she was aware Thomas had marijuana in his room.
As previously stated, Magill became defendant's attorney of record on April 25, 2013. In June and July 2013, his office issued subpoenas duces tecum to Jennifer Smith, the custodian of records for the Sanger Unified School District; the custodian of records for the Fresno County Sheriff, requesting dispatch reports for Little and Larralde dated July 30, 2011; the custodians of records for the Orange Cove and Sanger Police Departments, requesting "F.I. cards," photographs, documents, and/or confidential informant jackets for Thomas, Alicia, Jaron, Cody, and Chauncey; an agent for Disqus Corp., requesting the IP address, name, and address for "fourbears," a Disqus user who commented on June 29, 2013, at the Fresno Bee's Web site; and the custodian of records for the Fresno CHP office, requesting dispatch logs, related reports, and 911 tape recordings related to an accident that occurred on March 7, 2011, on George Smith Road north of Antelope Road.
The list of requested items is not included in the record on appeal. It appears, from the prosecutor's statements at the October 9 hearing, that the subpoena encompassed Thomas's school records, including discipline reports, grades, and teachers.
On July 31, 2013, the trial court denied defendant's ex parte applications for orders to release the subpoenaed records.
As previously described, defendant testified at the October 9 hearing that Thomas instructed him on what to tell detectives. Thomas was "pretty much the main" person who threatened defendant and his family. Defendant believed Thomas was capable of carrying out the threat to kill defendant and his family, because of people he associated with, things defendant had seen him do, and things Thomas talked about. Defendant also thought the group was capable of carrying out the threats because of the people with whom they associated, things defendant had seen them do, and things defendant had heard them say.
At the conclusion of the hearing, the court took up the matter of the subpoenaed records. The court noted that the exhibits clerk was in possession of documents relating to the six subpoenas duces tecum, and that the court previously denied the release of those documents ex parte to the defense.
Magill explained that the subpoena duces tecum related to the Fresno Bee's Web site was occasioned by a comment made by a user to an article concerning a delay in a hearing in defendant's case, to the effect that defendant had been beaten up. Since that was not a widely publicized matter, Magill thought it was relevant to get the identity of the person who made the comment, because he or she might have information that could lead to new evidence or evidence pertinent to the issue of ineffective assistance of counsel. He explained that the requested CHP records concerned an accident in which two people were killed. The information would show that defendant reported the accident and that he saw it from his house. Magill had information that the driver was driving under the influence and was coming from Alicia's or Summer's house and was friends with one or both of them. Magill asserted this would lead to evidence that Alicia and Summer were very angry that defendant reported the accident. Because it was a very remote road, they blamed defendant for their friend getting prosecuted for murder. This went to the issue of ineffective assistance of counsel regarding possible new evidence and the motive of Alicia and Summer to frame defendant for something he did not do, which went to the defense theory that the sex was consensual, and that Alicia and Summer participated in beating a confession out of defendant.
With respect to the two police department subpoenas, Magill believed the defense possessed evidence Thomas, Alicia, and Jaron, and possibly even Cody or Chauncey, were either members of a gang or confidential informants, in addition to which the requested records would contain information relating to Thomas's drug sales and the marijuana on his property. This would go to the issue of the individuals' credibility and possibly new evidence related to the ineffective assistance of counsel argument, plus a motive to frame defendant for the rape and to divert law enforcement from going onto the S. property and conducting a more thorough investigation. As for the school records, Magill stated that Thomas was jealous of defendant and wanted to get back at him for a number of things, including the time Scarber called the sheriff's department when he caught Thomas burglarizing a barn on the Scarbers' property. Magill alleged Thomas had a pattern and practice of trying to get defendant in trouble for things, and this was relevant to Thomas's motive to frame defendant for the rape.
The prosecutor objected to all but the sheriff's department's dispatch records. She argued the other requested information was speculative and irrelevant to an ineffective assistance of counsel claim, and that good cause had not been shown. She also argued there was a privacy right with respect to the school records.
The court released the dispatch information subpoenaed from the sheriff's office. It determined it would review the remaining documents in camera and then rule by minute order.
The next day, the court issued a written order denying release of the remaining subpoenaed records. It found them neither relevant (Evid. Code, § 210) nor probative (id., § 352). In addition, it found the documents submitted by the custodian of records of the Sanger Unified School District to be protected and privileged pursuant to Education Code section 49060 et seq. It also adopted and incorporated by reference the points and authorities set forth in a letter from the attorney for the City of Sanger, regarding the confidentiality of records regarding juveniles and the privilege for official information.
The defense subsequently filed a petition and first amended petition for writ of mandate, prohibition, supersedeas, or other appropriate relief with this court, challenging the trial court's ruling. We issued a denial.
By separate order, we grant defendant's request for judicial notice of this court's records and docket in Scarber v. Superior Court, case No. F068211.
2. Analysis
"Sections 1326 and 1327 set forth the procedure for either the prosecutor or the defendant to obtain discovery [of] records possessed by third parties. . . . [¶] Third party records are required to be produced to the court rather than the attorney for the subpoenaing party because: 'The issuance of a subpoena duces tecum . . . is purely a ministerial act and does not constitute legal process in the sense that it entitles the person on whose behalf it is issued to obtain access to the records described therein until a judicial determination has been made that the person is legally entitled to receive them.' [Citation.]" (People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1315-1316.)
"A criminal defendant has a right to discovery by a subpoena duces tecum of third party records by showing 'the requested information will facilitate the ascertainment of the facts and a fair trial.' [Citation.]" (People v. Superior Court (Barrett), supra, 80 Cal.App.4th at p. 1316.) " 'An accused is entitled to any " 'pretrial knowledge of any unprivileged evidence, or information that might lead to the discovery of evidence, if it appears reasonable that such knowledge will assist him in preparing his defense. . . .' [Citation.]" ' " (Id. at p. 1318.) We assume the same standards apply where, as here, discovery is sought as an aid to making a motion for a new trial based on claims of newly discovered evidence and ineffective assistance of counsel.
" 'We generally review a trial court's ruling on matters regarding discovery under an abuse of discretion standard.' [Citations.]" (People v. Thompson (2016) 1 Cal.5th 1043, 1105; accord, People v. Jenkins (2000) 22 Cal.4th 900, 953.) The same standard applies "to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence in question [citations]. Evidence is substantially more prejudicial than probative (see Evid. Code, § 352) if, broadly stated, it poses an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome' [citation]." (People v. Waidla, supra, 22 Cal.4th at p. 724.)
Defendant cites Younger v. Municipal Court (1980) 109 Cal.App.3d 859 for the proposition that whether to quash a subpoena duces tecum is a matter within the trial court's discretion. The appeal in that case was dismissed, however, and the opinion cannot properly be cited. (Cal. Rules of Court, rule 8.1115(a).) That defendant only cited the case for the standard of error and the Attorney General was not harmed by the citation, as defendant rationalizes in his reply brief, is beside the point. Also beside the point, is the standard for review of a ruling on a motion to quash a subpoena duces tecum, since the trial court here took no such action.
We find no abuse of discretion here. Many of the records requested were confidential by operation of law or privileged, and the trial court was required to take such confidentiality or privilege into account. (See, e.g., Ed. Code, §§ 49075, subd. (a), 49076, subd. (a); Evid. Code, § 1040, subd. (b)(2); People v. Superior Court (Humberto S.) (2008) 43 Cal.4th 737, 751; People v. Avila (2006) 38 Cal.4th 491, 606-607.)
Moreover, defendant failed to assert an adequate justification or make a good cause showing with respect to the records sought. (See Kling v. Superior Court (2010) 50 Cal.4th 1068, 1075.) Some of the proffered explanations, such as that involving the traffic accident furnishing a motive to frame defendant, lacked any plausibility. Others made clear the discovery requests amounted to no more than random inquiries. We know of no authority requiring a trial court to disclose information where the only purpose is to draw the factfinder's attention away from the real issues in a case.
Moreover, were we to find error, we would conclude it was harmless under any standard. (See People v. Gonzalez (2006) 38 Cal.4th 932, 961; People v. Elder (2017) 11 Cal.App.5th 123, 133; In re Ricky B. (1978) 82 Cal.App.3d 106, 114.) Defendant voluntarily absented himself from trial. Because of this fact, no evidence was presented — indeed, there was no evidence to present — to explain how the threats made and beating administered by Alicia and the other civilians affected his confession to detectives, and why he never told detectives his confession to the civilians was false. In light of defendant's appearance, coherence, and memory for details of the rape depicted in the video recording of defendant's interview with detectives, no amount of impeachment of or casting aspersions on the civilians would have constituted newly discovered evidence that would have rendered a different result probable on retrial or established ineffective assistance of counsel. Nor would it have detracted from the fact Y.G.'s claim of rape and the DNA evidence were undisputed.
In light of the foregoing, no remand is warranted for an evidentiary hearing to determine whether the subpoenaed documents have been destroyed in contravention of the trial court's order of October 10, 2013, and this court's order of November 6, 2013, in case No. F068211; and, if so, whether they can be recreated.
VII
INEFFECTIVE ASSISTANCE OF COUNSEL AND RELATED CLAIM
Defendant contends Alvarez and Magill rendered ineffective assistance of counsel. He also claims Alvarez repeatedly invaded his Sixth Amendment-secured autonomy, resulting in structural error. We find no cause for reversal. A. Ineffective Assistance of Counsel
1. General legal principles
The burden of proving ineffective assistance of counsel is on the defendant. (People v. Pope (1979) 23 Cal.3d 412, 425, overruled on another ground in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) "To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. [Citations.] 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)
" 'We cannot evaluate alleged deficiencies in counsel's representation solely on defendant's unsubstantiated speculation.' [Citation.]" (People v. Bonilla (2018) 29 Cal.App.5th 649, 658.) Rather, "[a] defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record." (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
"If the record contains an explanation for the challenged aspect of counsel's representation, the reviewing court must determine 'whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.' [Citation.]" (People v. Cudjo (1993) 6 Cal.4th 585, 623.) "If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance 'unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.' [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 367.)
" 'Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel . . . .' [Citation.]. . . '[C]ourts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight' [citation]. 'Tactical errors are generally not deemed reversible, and counsel's decisionmaking must be evaluated in the context of the available facts.' [Citation.]" (People v. Weaver (2001) 26 Cal.4th 876, 925-926.) " 'A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' " (People v. Carter (2005) 36 Cal.4th 1114, 1189.) In sum, "in assessing a Sixth Amendment attack on trial counsel's adequacy mounted on direct appeal, competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney's choice. [Citations.]" (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260, original italics.)
2. Alvarez
a. Failure to call witnesses at hearing on voluntariness of statements
As previously described, an Evidence Code section 402 hearing was held with respect to the voluntariness of defendant's statements. Isaac testified for the prosecution, and the video recording of the interview was played for the court. No witnesses were called by the defense. Defendant now faults Alvarez for failing to call the two witnesses — Jaron and defendant — whose testimony Alvarez stated, in his declaration (exh. 1 to the People's opposition to defense motion for new trial), "was more than sufficient to establish an argument that the confession was coerced." (Italics added.)
That Alvarez could have called Jaron and/or defendant at the hearing (see People v. Pic'l (1981) 114 Cal.App.3d 824, 864, disapproved on another ground in People v. Kimble (1988) 44 Cal.3d 480, 496, fn. 12, 498) does not mean he was ineffective for failing to do so (see People v. Jennings, supra, 53 Cal.3d at p. 379). Particularly in light of the video recording of defendant's statement to Isaac, Alvarez reasonably could have believed the trial court would find the statement voluntary regardless of such testimony, and so an argument of coercion would be better made to the jury without giving the prosecutor a preview of defendant's anticipated testimony. Because the record on appeal does not demonstrate there could have been no rational tactical reason for Alvarez's omission, defendant is not entitled to reversal. (See People v. Lucas (1995) 12 Cal.4th 415, 442.)
b. Purported unawareness of relevant case law
Defendant says that Alvarez's actions with respect to the voluntariness hearing demonstrate he was not aware of relevant case law, particularly Crane v. Kentucky (1986) 476 U.S. 683 (Crane) and Berve, supra, 51 Cal.2d 286. " ' "The proof of . . . inadequacy or ineffectiveness must be a demonstrable reality and not a speculative matter." ' [Citation.] In other words, the record must demonstrate that counsel was ignorant of the facts or of the law . . . ." (People v. Provencio (1989) 210 Cal.App.3d 290, 303-304.) There is no evidence in the record on appeal that Alvarez was unaware of relevant case law or that he lacked a tactical reason for proceeding as he did at the Evidence Code section 402 hearing. Accordingly, defendant's claim of ineffective assistance of counsel must be rejected. (See People v. Jones (2003) 30 Cal.4th 1084, 1115.)
Berve is described ante. In Crane, the trial court ruled, at the conclusion of a pretrial hearing, that the defendant's confession was voluntary. It then precluded the defendant from introducing testimony at trial about the physical and psychological environment in which the confession was obtained. (Crane, supra, 476 U.S. at p. 684.) The United States Supreme Court held the trial court erred, since "evidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility." (Id. at p. 691.)
c. Failure to obtain dispatch records
Next, defendant contends that if the dispatch records did not constitute Brady material, then Alvarez was deficient in his performance for not obtaining them. For the reasons set out in our discussion of defendant's Brady claim, ante, defendant has failed to demonstrate a reasonable probability he would have obtained a more favorable result had the dispatch records been obtained by the defense in a timely manner, even assuming Alvarez's performance in this regard was deficient (which we do not decide).
d. Failure to challenge prosecutor's positions
Defendant says Alvarez's performance was deficient "regarding the investigation of the facts and the law" because he failed to challenge several positions held by the prosecutor. Defendant appears to contend Alvarez was required to challenge (1) the implication that because defendant never sought medical attention, he was not really hurt; (2) the position that defendant confessed and then was beaten, "as if the rule of law approves of such activity by citizens"; and (3) the prosecutor's failure to acknowledge the psychological harm inflicted upon defendant "prior to his making any admissions and thereafter."
The record on appeal does not demonstrate what investigation Alvarez undertook or failed to undertake. "Although trial counsel clearly has a duty to adequately investigate possible defenses to enable formulation of an informed trial strategy [citation], we will not presume from a silent record that counsel failed in this duty. [Citation.]" (People v. Jennings, supra, 53 Cal.3d at p. 375.) Moreover, a decision which positions to challenge is inherently tactical. (See People v. Carter, supra, 36 Cal.4th at p. 1189.) On the record before us, even if we were to doubt a satisfactory explanation could be provided, we would be unable to conclude that it could not. Accordingly, we must reject defendant's claim. (See People v. Bell (1989) 49 Cal.3d 502, 546.)
3. Magill
a. New trial motion's failure to comport with rule of court
Defendant says Magill's performance was defective with respect to the new trial motion, because the motion failed to comport with rule 3.1113(a) of the California Rules of Court. That rule provides, in pertinent part: "(a) . . . [¶] A party filing a motion . . . must serve and file a supporting memorandum. . . . [¶] (b) . . . [¶] The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced." Defendant says the motion raised issues, but those issues were not argued in the memorandum with citations to the law and with an application of the law to the facts.
It is not clear the cited rule is applicable. Rule 3.1113 is contained in title 3 of the California Rules of Court. Unless otherwise provided by statute or rule, those rules apply only to civil cases. (Cal. Rules of Court, rule 3.10; see People v. Henson (2018) 28 Cal.App.5th 490, 510, fn. 11, review granted Jan. 30, 2019, S252702; but see People v. Williams (1999) 20 Cal.4th 119, 129 [citing Cal. Rules of Court, former rule 313, now rule 3.1113, as example of generally applicable rule of motion practice].) In any event, given the length and complexity of the amended new trial motion and the hearing thereon, defendant clearly was not prejudiced by any alleged failure to comply with the cited rule.
b. Failure to produce affidavits
Next, defendant faults Magill for failing to produce affidavits regarding relevant evidence to impeach Y.G. In this regard, subdivision 8 of section 1181 requires that "[w]hen a motion for a new trial is made upon the ground of newly discovered evidence, the defendant must produce at the hearing, in support thereof, the affidavits of the witnesses by whom such evidence is expected to be given . . . ." Defendant says Magill's comments on the record show his strategy was to include statements from Abrames and Katherine L. (who worked at the S. residence), both of whom apparently would have said Y.G. wanted to withdraw her allegations against defendant.
Defendant fails to provide any citations to the record whatsoever. Insofar as we can ascertain, in his "NOTICE OF LIVE WITNESSES," filed December 17, 2013, Magill stated his intent was to call Alvarez and Abrames at the hearing on the new trial motion. At the hearing on the motion, Magill additionally made an offer of proof that Katherine would testify to having a conversation with Y.G. in which Y.G. said she intended to withdraw her pursuit of this case. The court refused to permit further live testimony.
As previously described, the prosecution submitted a declaration from Y.G. in which Y.G. denied ever telling anyone that she wanted to withdraw charges in this case or that she did not want to cooperate with the prosecution.
Without declarations from Abrames and Katherine, we are unable to conclude a reasonable probability exists that defendant would have obtained a more favorable result had those declarations been produced. Accordingly, even assuming Magill's performance was deficient, defendant has failed to demonstrate prejudice.
c. Argument regarding alleged prosecutorial conflict
Defendant says Magill's performance was deficient in that he raised conflict issues concerning the prosecutor and her marriage to an attorney in the recused district attorney's office but failed to fully brief the issue or address the prosecutor's failure to respond, and failed to seek a ruling by the trial court on the conflict of interest issue.
We have addressed the conflict issue at length, ante. Even if we assume Magill should have done something in this regard, the record is inadequate to permit us to make a determination of prejudice. Accordingly, we must reject defendant's point.
4. Alvarez and Magill
Defendant claims deficient performance by both Alvarez and Magill in that they failed to (1) cite relevant statutory authority to permit introduction of Alicia's cell phone recording into evidence; (2) attempt to present evidence regarding defendant's state of mind concerning consent and, in Magill's case, challenge Alvarez's performance on this point; and (3) address the unreasonable delay and limitations on the amount of force a citizen may use to make an arrest. In each instance, the record neither sheds light on why counsel acted as he/they did nor precludes a satisfactory explanation, nor has defendant demonstrated prejudice. Accordingly, we reject defendant's contentions.
Defendant also chides both attorneys for failing to address Little's conduct so as to have defendant's statements excluded. Defendant says that when Little handcuffed defendant, placed him in the patrol car, and took him "back to his tormentors" instead of to a place of immediate safety, it amounted to " 'improper influence' " that caused defendant's confession to be coerced. (See People v. Benson, supra, 52 Cal.3d at p. 778.) The record does not support such a conclusion.
Defendant also says that when Little spent approximately 20 minutes taking statements from witnesses while defendant was left in the patrol car, it amounted to an impermissible de facto arrest. We conclude neither attorney was ineffective for failing to raise this issue with respect to defendant's statements. Counsel reasonably could have determined raising such an issue would have been futile, either because the record showed " 'the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances' " (People v. Celis (2004) 33 Cal.4th 667, 675; see People v. Soun (1995) 34 Cal.App.4th 1499, 1517) and so there was no impermissible de facto arrest; or that Little, having been told by an identifiable citizen that defendant was the rapist, had probable cause to arrest defendant (see People v. Celis, supra, at p. 673). "Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile." (People v. Price (1991) 1 Cal.4th 324, 387.)
Finally, defendant contends both attorneys were ineffective for failing to address the issue of prosecutorial misconduct in closing argument. Defendant points to the italicized portion of the prosecutor's rebuttal argument, which we quote in context:
"A coerced confession? You watched that video. You saw Detective Isaac. You saw Detective McCormick. Two female detectives sitting there asking questions. Not yelling at him. Not screaming at him. Talking to him quietly, calmly. He is safe in that room with two female detectives. He's not being beat up. He's able to coherently answer. And what does he say? 'I raped her.' He uses the word 'rape' twice. There aren't leading questions. 'I raped her.' Has nothing to do with what he said with his friends earlier. Did he admit it to his friends? Yes. Did he get beat up? It certainly appears so. Vigilante justice, his friends are pissed off, they beat him up. Just because you get beat up doesn't mean that you're going to confess and say I raped someone."
" '[It] is misconduct for a prosecuting attorney to express his personal belief as to the reliability of a witness.' [Citations.]" (People v. Perez (1962) 58 Cal.2d 229, 245- 246, disapproved on another ground in People v. Green (1980) 27 Cal.3d 1, 32, 34.) On the other hand, "[p]rosecutors have wide latitude to discuss and draw inferences from the evidence at trial. [Citation.] Whether the inferences the prosecutor draws are reasonable is for the jury to decide. [Citation.]" (People v. Dennis (1998) 17 Cal.4th 468, 522.) Moreover, "[r]ebuttal argument must permit the prosecutor to fairly respond to arguments by defense counsel . . . ." (People v. Bryden (1998) 63 Cal.App.4th 159, 184.)
" 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' [Citation.]" (People v. Dykes (2009) 46 Cal.4th 731, 771-772.)
We see no reasonable likelihood defendant's jury understood the prosecutor to be expressing a personal opinion with respect to the reliability of her witnesses, as defendant now contends. Accordingly, Alvarez's performance was not deficient for failing to object at trial, and Magill's performance was not deficient in failing to assert, in the new trial motion, that Alvarez was ineffective for failing to object. B. Purported Invasion of Defendant's Autonomy
Relying on McCoy v. Louisiana (2018) 584 U.S. ___ (McCoy), defendant contends Alvarez invaded defendant's Sixth Amendment-secured autonomy in various ways, resulting in structural error that mandates reversal of defendant's convictions. We reject what is, for the most part, an attempt to recast defendant's claims of ineffective assistance of counsel, which require a showing of prejudice, into claims of structural error. A reasoned analysis of McCoy readily demonstrates it does not support reversal.
1. McCoy
McCoy was charged with three counts of first degree murder, and the prosecution sought the death penalty. McCoy pled not guilty and insisted, throughout the proceedings, that he was out of state at the time of the killings. His attorney eventually concluded the evidence was overwhelming and, absent a concession at the guilt stage that McCoy was the killer, a death sentence would be impossible to avoid. When counsel informed McCoy that counsel would concede McCoy's commission of the murders, McCoy ordered counsel not to make that concession and instead to pursue acquittal. Despite McCoy's continuing opposition and testimony at trial in which he maintained his innocence and asserted an alibi, counsel conceded, in his opening statement and closing argument, that McCoy was the killer. McCoy was convicted of first degree murder on all three counts. At the penalty phase, counsel again conceded McCoy committed the crimes, but urged mercy in view of McCoy's mental and emotional issues. The jury returned death verdicts. McCoy subsequently moved for a new trial, arguing the trial court violated his constitutional rights by allowing counsel to concede guilt over McCoy's objections. The state high court held the concession was permissible, because counsel reasonably believed admitting guilt afforded McCoy the best chance to avoid a death sentence. (McCoy, supra, 584 U.S. at pp. ___-___ [138 S.Ct. at pp. 1505-1507].)
The United States Supreme Court reversed, holding that "a defendant has the right to insist that counsel refrain from admitting guilt, even when counsel's experienced-based view is that confessing guilt offers the defendant the best chance to avoid the death penalty. Guaranteeing a defendant the right 'to have the Assistance of Counsel for his defence,' the Sixth Amendment so demands. With individual liberty — and, in capital cases, life — at stake, it is the defendant's prerogative, not counsel's, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt." (McCoy, supra, 584 U.S. at p. ___ .)
The high court observed that the right to defend is personal, and a defendant's choice in exercising that right must be honored. (McCoy, supra, 584 U.S. at p. ___ .) It explained:
"The choice is not all or nothing: To gain assistance, a defendant need not surrender control entirely to counsel. For the Sixth Amendment, in grant[ing] to the accused personally the right to make his defense,' 'speaks of the "assistance" of counsel, and an assistant, however expert, is still an assistant.' [Citations.] Trial management is the lawyer's province: Counsel provides his or her assistance by making decisions such as 'what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.' [Citation.] Some decisions, however, are reserved for the client — notably, whether to plead guilty, waive the right to a jury trial, testify in one's own behalf, and forgo an appeal. [Citation.]
"Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category. . . . These are not strategic choices about how best to achieve a client's objectives; they are choices about what the client's objectives in fact are. [Citation.]
". . . When a client expressly asserts that the objective of 'his defence' is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt. [Citation.]
"Preserving for the defendant the ability to decide whether to maintain his innocence should not displace counsel's, or the court's, respective trial management roles. [Citation.] Counsel . . . must still develop a trial strategy and discuss it with her client . . . ." (McCoy, supra, 584 U.S. at pp. ___-___ [138 S.Ct. at pp. 1508-1509].)
The court concluded: "If a client declines to participate in his defense, then an attorney may permissibly guide the defense pursuant to the strategy she believes to be in the defendant's best interest. Presented with express statements of the client's will to maintain innocence, however, counsel may not steer the ship the other way. [Citation.]" (McCoy, supra, 584 U.S. at pp. ___-___ [138 S.Ct. at pp. 1509-1510].)
The court went on to explain that, "Because a client's autonomy, not counsel's competence, is in issue, we do not apply our ineffective-assistance-of-counsel jurisprudence . . . to McCoy's claim. [Citations.] To gain redress for attorney error, a defendant ordinarily must show prejudice. [Citation.] Here, however, the violation of McCoy's protected autonomy right was complete when the court allowed counsel to usurp control of an issue within McCoy's sole prerogative. [¶] Violation of a defendant's Sixth Amendment-secured autonomy ranks as error of the kind our decisions have called 'structural'; when present, such an error is not subject to harmless-error review. [Citations.]" (McCoy, supra, 584 U.S. at pp. ___-___ [138 S.Ct. at pp. 1510-1511].)
2. Defendant's claims
a. Requesting that defendant admit guilt
Defendant contends Alvarez repeatedly invaded his autonomy, as discussed in McCoy, by requesting that defendant admit guilt over defendant's intransigent and unambiguous objections. Defendant points to Alvarez having advanced the possibilities to defendant of a voluntary intoxication defense or that defendant did not form the intent to commit rape until after he entered the S. residence, which, defendant claims, amounted to an abandonment of defendant's chosen consent defense.
McCoy expressly permits defense counsel to develop a trial strategy, discuss it with the defendant, and explain why, in counsel's view, conceding guilt would be the best option. (McCoy, supra, 584 U.S. at p. ___ .) In our view, it would almost certainly constitute abandonment of the client for an attorney not to discuss potential strategies and urge that which, in counsel's professional opinion based on the state of the case, has the greatest possibility of success. Alvarez did not invade defendant's Sixth Amendment-secured autonomy by doing so here, and McCoy cannot reasonably be read to suggest otherwise. Alvarez advanced a consent defense in his opening statement. The record does not suggest he intended to deviate from that defense over defendant's objections at any point, but instead the defense strategy was to have defendant testify that what occurred was consensual. When defendant voluntarily absented himself without testifying, Alvarez never conceded defendant's culpability, but instead attempted to call the investigation and the People's evidence into question. He did not violate McCoy or defendant's autonomy by doing so. (Cf. People v. Flores (2019) 34 Cal.App.5th 270, 281; People v. Eddy (2019) 33 Cal.App.5th 472, 482-483.)
Defendant testified, at the October 9 hearing, that Alvarez said he did not care how defendant testified; in closing argument, he was going to say defendant might have done it, but he was on drugs and so doped up that he did not remember doing it. According to defendant, he believed Alvarez was suggesting he testify falsely. Alvarez categorically denied ever asking defendant to, or insinuating that he should, commit perjury or lie about any aspect of the case. The trial court "totally and completely rejected" the claim Alvarez advised defendant to lie.
Defendant asserts we should apply the de novo standard of review to his autonomy claims. As the question involved appears to us to be a mixed one of law and fact, we agree. (See, e.g., People v. Ault, supra, 33 Cal.4th at pp. 1264-1265 & fn. 8; People v. Cromer (2001) 24 Cal.4th 889, 894.) Even so, we accept the trial court's factual findings and credibility determinations where, as here, they are supported by substantial evidence. (See, e.g., People v. Peoples, supra, 62 Cal.4th at p. 776; People v. Thompson, supra, 49 Cal.4th at pp. 111-112.)
b. Invading defendant's right to remain silent
Defendant next contends Alvarez invaded defendant's right to remain silent by relying only upon defendant to lay the foundation for introducing Alicia's recording. Defendant says he did not have to relinquish his right to remain silent in order that the recording could be admitted.
McCoy lists the decision whether to testify in one's own behalf as a decision reserved for the client. (McCoy, supra, 584 U.S. at p. ___ .) Defendant cites to nothing in the record that suggests he objected to testifying. Whether Alvarez could have but failed to seek admission of the evidence by another means, or, as defendant alleges, "inappropriately" rested the defense case when defendant failed to appear, are matters for resolution under an ineffective assistance of counsel claim, not McCoy. Even if we were to conclude Alvarez erred (which we do not), Alvarez did not fail to abide by, or override, his client's objective. (See McCoy, supra, 584 U.S. at pp. ___-___ [138 S.Ct. at pp. 1508-1509].)
c. Depriving defendant of right to put on defense without testifying
Defendant further contends Alvarez committed structural error by depriving him of his autonomy to put on a defense without defendant testifying. He complains that Alvarez rested the defense case without calling any witnesses, and says he was deprived of a fair trial because substantial evidence existed, but was not heard by the jury, to establish that his confession was involuntary, to impeach Y.G.'s credibility, and concerning defendant's state of mind that the encounter was consensual.
In each instance, defendant's complaint is founded on a failure to call witnesses, obtain evidence, present evidence in a manner that did not depend on defendant's testimony, or make certain claims or arguments. It is nothing more than a rehash of defendant's assertion that Alvarez's performance was deficient. As McCoy makes clear, "Trial management is the lawyer's province: Counsel provides his or her assistance by making decisions such as 'what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.' [Citation.]" (McCoy, supra, 584 U.S. at p. ___ .) If counsel's assistance in this regard is deficient, the claim traditionally has been one of ineffective assistance of counsel, not violation of autonomy. (See, e.g., People v. Thomas (1992) 2 Cal.4th 489, 531 [failure to argue theory more strenuously]; People v. Burnett (2003) 110 Cal.App.4th 868, 885 [making promises about defense evidence in opening statement, then failing to deliver].) To extend McCoy to encompass such claims would have the effect of obliterating most, if not all, of the high court's ineffective-assistance-of-counsel jurisprudence. Yet McCoy makes clear that "[t]o gain redress for attorney error, a defendant ordinarily must show prejudice. [Citation.]" (McCoy, supra, 584 U.S. at p. ___ .)
Defendant has failed to establish that Alvarez "usurp[ed] control of an issue within [defendant's] sole prerogative." (McCoy, supra, 584 U.S. at p. ___ [138 S.Ct. at p. 1511.) His claim of structural error fails.
VIII
CUMULATIVE ERROR
Defendant contends that the cumulative effect of errors deprived him of a fair trial. As we have explained, however, most of the alleged errors are either not cognizable on appeal or did not amount to error. To the extent there are instances in which we have assumed error, we have concluded it was not prejudicial. We do not find reversible error by considering the claims cumulatively, and we conclude defendant received a fair trial. (See People v. Chism (2014) 58 Cal.4th 1266, 1309; People v. Stewart (2004) 33 Cal.4th 425, 521-522.)
DISPOSITION
The judgment is affirmed.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
LEVY, J.