Opinion
D075169
07-09-2020
THE PEOPLE, Plaintiff and Respondent, v. DIONICIO CRESPIN TORREZ, JR., Defendant and Appellant.
David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene Sevidal, Andrew Mestman and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN370830) APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Kearney, Judge. Affirmed. David M. McKinney, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene Sevidal, Andrew Mestman and James M. Toohey, Deputy Attorneys General, for Plaintiff and Respondent.
This case arises from a tragic killing in Escondido, in which a gang member shot across the street at members of rival gang, inadvertently killing a passing motorist who was struck in the head by one of the bullets. Based on those facts, a jury found Dionicio Crespin Torrez, Jr. guilty of one count of first degree murder (Pen. Code, § 187, subd. (a)); one count of attempted murder (§§ 187, subd. (a), 664), which was found to be willful, deliberate, and premeditated (§ 189); and two counts of shooting at an occupied vehicle (§ 246). With respect to the murder count, the attempted murder count, and one of the counts of shooting at an occupied vehicle, it was alleged, and the jury found, that Torrez personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (d)), and that a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (d).) With respect to all of the counts, it was alleged, and the jury found, that Torrez committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), with the additional finding for the murder count that Torrez intentionally killed while he was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)). The trial court sentenced Torrez to prison for a term of life without the possibility of parole, and a consecutive term of 35 years to life.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Torrez contends (1) the trial court erred by allowing the admission of evidence that the victim was on her way home from church when she was killed; (2) the trial court erred in not ordering the People to provide immunity to a witness who invoked the Fifth Amendment in refusing to testify; (3) insufficient evidence supports the jury's finding that Torrez killed with premeditation and deliberation; and (4) the trial court erred by reopening closing argument, at the jury's request, to help it resolve an impasse on the first degree murder count. We conclude that Torrez's arguments lack merit, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Torrez was a member of the Diablos criminal street gang and lived in the Pepperwood apartment complex in Escondido, which was in territory controlled by the Diablos gang. A witness described Torrez as the leader for the Diablos gang in the Pepperwood complex. The Westside criminal street gang was the main rival to the Diablos gang in Escondido. In the past, Torrez had been assaulted and stabbed by Westside gang members.
Around 9:00 p.m. on March 7, 2017, a resident of the Pepperwood apartments observed Westside gang members spray painting graffiti in the complex (an activity commonly referred to as "tagging"), and she called Torrez to alert him.
"Tagging is the term for marking walls and surfaces with graffiti. (In re Angel R. (2008) 163 Cal.App.4th 905, 913, fn. 6.) The resident, M.A., who witnessed the tagging, testified that she did not call Torrez about it, but her cell phone records show a phone call to Torrez at the relevant time, and in one interview with police she stated that she was on the phone with Torrez when she saw the tagging taking place.
According to the testimony of Jose, a minor who lived in the complex and associated with the Diablos gang, he was with several other people on the porch of Torrez's apartment on the night of March 7, 2017. When Jose emerged from using the restroom, most everyone was gone from the porch. Jose left the porch and found someone who told him that Westside gang members were at the apartment complex. Jose then saw Torrez running toward the front of the complex toward fleeing Westside gang members. Jose ran to catch up to Torrez, with the intention of assisting Torrez in any fight that might take place. Jose saw two Westside gang members crossing the street to run toward a waiting car. Torrez then took out a gun and shot several times across the street at the Westside gang members. As the fleeing Westside gang members reached their car and drove away, Torrez loudly yelled the name of the Diablos gang.
To protect his privacy, we refer to Jose by his first name, and we intend no disrespect by doing so.
Twelve cartridge cases were found on the ground at the Pepperwood complex, all of which were from the same gun, indicating that a single gun at that location fired at least 12 shots at the fleeing Westside gang members. None of the physical evidence at the scene suggested that the fleeing Westside gang members fired any shots back towards the Pepperwood complex.
The casings and bullets from the shooting were from the same gun that Torrez had used to fire shots on New Year's Eve, as shown by a comparison from casings that a resident of the Pepperwood complex collected after the New Year's Eve incident and provided to the police.
One of the shots fired across the street entered a passing car and hit the driver in the head, killing her. Through a stipulation agreed upon by the parties, the jury was informed that the victim, Catherine Kennedy, was driving home from church when she was shot. The jury also heard evidence from a detective that only a few minutes before the shooting, Kennedy made a purchase at a Walmart that was near the Pepperwood complex.
Several days after the shooting, Torrez fled to Northern California where he was arrested. In a third amended information, Torrez was charged with one count of murder (§ 187, subd. (a)), one count of attempted murder (§§ 187, subd. (a), 664), and two counts of shooting at an occupied vehicle (§ 246). For the murder count, it was further alleged that Torrez committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that he intentionally and personally discharged a firearm that caused great bodily injury and death to another person (§ 12022.53, subd. (d)), that a principal personally and intentionally discharged a firearm that caused great bodily injury and death to another person (§ 12022.53, subds. (d), (e)(1)), and that he intentionally killed the victim while he was an active participant in a criminal street gang (§ 190.2, subd. (a)(22)). For the attempted murder count, it was further alleged that the offense was willful, deliberate, and premeditated (§ 189), that Torrez committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that Torrez personally and intentionally discharged a firearm (§ 12022.53, subd. (c)), and that a principal personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (e)(1)). For both counts alleging shooting at an occupied vehicle, it was further alleged that Torrez committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)), that he intentionally and personally discharged a firearm that caused great bodily injury and death (§ 12022.53, subd. (d)), and that a principal personally discharged a firearm that caused great bodily injury and death (§ 12022.53, subds. (d), (e)(1)).
Jose was also identified as involved in the shooting, and he eventually made an admission to committing second degree murder as an aider and abettor and agreed to cooperate in Torrez's prosecution, in exchange for all proceedings against him occurring in the juvenile court system.
On the verdict forms, one of the counts alleging shooting an occupied vehicle did not include any firearm allegations.
At trial, defense counsel presented a defense based on the theory that the People had not proven that Torrez, rather than Jose, was the shooter. At the heart of this theory was a blurry security camera video, taken from a significant distance at night, which shows the shooting. Based on the muzzle flashes in the video, a detective who reviewed the video agreed that it appears that the second person to move into the camera frame is the person who committed the shooting. Relying on Jose's testimony that he ran to catch up with Torrez, and Jose's statement that he thinks he was the second person to arrive at the shooting, defense counsel argued that Jose was the shooter, not Torrez.
During deliberations, the jury sent notes informing the court that it was having difficulty reaching a verdict on first degree murder, and that it would like clarification on the concept of provocation and the distinction between first degree and second degree murder. The trial court provided further clarification, and it also read CALCRIM No. 3551, which gave general guidelines to the jury in continuing its deliberations. At the prosecutor's request, and over defense counsel's objection, the trial court amended CALCRIM No. 3551 by supplementing the sentence stating that the jury should let the court know if it could "do anything to help you further, such as give additional instructions or clarify instructions," to include the phrase "or permit the attorneys to make additional closing argument on that point."
The jury then sent a note stating that it would like further argument on the following areas with respect to first degree murder: "[] That the defendant carefully weighed the considerations for and against his choice[;] [¶] [] Evidence supporting premeditation[;] [¶] [] Role of provocation[.]" Defense counsel once again objected to reopening closing argument and filed a written motion, which (1) requested that the court reconsider its decision to reopen closing argument, (2) moved for a mistrial, and (3) sought a stay of proceedings to file a writ on the issue. The trial court denied the relief sought by defense counsel and permitted counsel to give additional closing argument for a total of 20 minutes per party on the points specified by the jury.
Counsel proceeded to give additional closing argument. Shortly after the prosecutor began her additional closing argument, defense counsel objected on the ground that the prosecutor had misstated the law when describing provocation and how it related to the concept of premeditation and deliberation. After conferring with counsel and consulting case law, the trial court sustained the objection because "some of the comments made by [the prosecutor] could be constructed as altering the law required." The trial court instructed the jury that it was striking the prior argument and directing the prosecutor to start over, with the admonition that "it's the law that I give to you that counts and not what one of the counsel say."
The argument comprises 21 lines of text in the reporter's transcript.
Later, the court stated that it believed the prosecutor's comments "were borderline" and it was "not one hundred percent sure they crossed the line" or that "there was any error."
Counsel resumed their additional closing arguments, but defense counsel chose to give a relatively brief argument, explaining that it was his position that Torrez did not shoot the gun, and thus further argument on the concept of provocation and premeditation and deliberation would be "a legal fiction."
Defense counsel declined to present argument on the issue of provocation and premeditation and deliberation, even though, as the trial court observed in response to defense counsel's objection to reopening closing argument, "[t]heoretically, this could be an issue under aiding and abetting," regardless of whether Torrez was the shooter. Indeed, the jury was instructed that Torrez's guilt for first degree murder could be based on an aiding and abetting theory, and the prosecutor argued that theory in closing argument. The instruction that Torrez could be found guilty of first degree murder under an aiding and abetting theory was legally correct under the applicable law at the time of trial, as well as under the subsequent statutory amendment to section 189. (People v. Chiu (2014) 59 Cal.4th 155, 159, 166-167 (Chiu) [an aider and abettor may be convicted of first degree premeditated murder under direct aiding and abetting principles, as "[a]n aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent" and thus "acts with the mens rea required for first degree murder."]; § 189, subd. (e)(2) [a participant may be liable for first degree murder when "[t]he person was not the actual killer, but with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested or assisted the actual killer in the commission of murder in the first degree."].) The jury's verdict shows that it ultimately found that Torrez was the shooter, not an aider and abettor, as it made a true finding that he personally and intentionally discharged a firearm (§ 12022.53, subds. (c), (d)).
The jury returned a verdict of guilt on all counts, and it made true findings on all of the additional allegations in each of the counts. The trial court imposed a sentence of life without the possibility of parole, along with a consecutive term of 35 years to life.
II.
DISCUSSION
A. The Trial Court Did Not Err by Allowing the Admission of Evidence That Kennedy Was Driving Home From Church When She Was Shot
We first consider Torrez's contention that the trial court erred during motions in limine by ruling that the People could present evidence that Kennedy was driving home from church when she was shot. Torrez specifically contends that the evidentiary ruling was improper under Evidence Code section 352, as there was a risk of undue prejudice from the evidence, which lacked any probative value.
In evaluating this argument, we first review the relevant procedural background. During motions in limine, the prosecutor proposed an exhibit showing Kennedy's path of travel from her church to Walmart, and then past the scene of the shooting at the Pepperwood apartment complex toward the direction of her home. The prosecutor intended to use the exhibit during the testimony of Kennedy's husband. Defense counsel objected to the exhibit and to any evidence showing that Kennedy was coming from church, stating "I'm going to be moving to exclude where she was coming from. I don't think it's relevant. I think it's highly prejudicial, especially when you have a lady who is religious and coming from Bible study and all of a sudden her life is ended." Defense counsel also objected that the testimony that Kennedy was coming from church would be prejudicial because it would be elicited during the testimony of a grieving husband.
The trial court ruled that the People were entitled to present evidence of where Kennedy was coming from through the map the People proposed to use during the testimony of Kennedy's husband, but that to lessen any prejudice, the prosecutor should not "belabor" the point. As the court explained, "It would be relevant to whether or not this was self-defense, whether or not this was mutual combat, whether or not this was just a person who happened to be in the wrong place at the wrong time. I do think they're entitled to that." The trial court ruled, "I think, in a sense, they do have to prove it through circumstantial evidence, given the fact that she was alone in the car when she was shot. . . . I agree not having people from the bible study or whatever it was they were doing at that location. That would be, under [Evidence Code section] 352, more prejudicial than probative. But for purposes of showing what her path was, what she was doing right before she was killed, I think it is relevant, and it is circumstantial evidence of the circumstances under which she was shot, [o]f any reasonable inferences you can draw with regards to her conduct and what fault is attributed to her for this situation occurring, if any. [¶] So the actual court's exhibit 6 just has the four yellow pins on the map with the headings Kennedy home, crime scene, Walmart, St. Timothy's. It doesn't have anything more prejudicial. It doesn't show a bible or doves or anything of that nature. I do think the people are entitled to show through circumstantial evidence that she was an innocent victim in this situation. I think this is relevant to that. But under 352, I don't think they need to belabor it."
After the trial court's ruling, but prior to trial, defense counsel proposed to the prosecutor that evidence of why Kennedy was driving past the scene of the shooting be presented through a stipulation rather than through the testimony of Kennedy's husband. Defense counsel explained, "I think it's going to be a very emotional moment for everybody, hearing Mr. Kennedy grieving on the stand. I'm willing to stipulate that Ms. Kennedy was at church. Typically, she goes home a different route, but for her going to Walmart first, took this other route that typically she doesn't take." Defense counsel proposed the stipulation "given the fact that we're here to ensure that Mr. Torrez gets a fair trial, given the fact that this is not an issue in dispute, and knowing that it's going to be very emotional for everybody to see Mr. Kennedy grieve on the stand . . . . And I think that's just going to be too emotional for everybody, and it's just going to elicit a response from the jury. And everybody is going to be very sympathetic. Everybody in this courtroom is going to feel that way." Defense counsel then specifically asked whether, in light of the People's "interest to ensure that Mr. Torrez has a fair trial," the prosecutor "would be willing to accept the defense's stipulation." The prosecutor replied that she would consider it.
Thereafter, defense counsel and the prosecutor reached a stipulation under which the jury would be told of certain details concerning Kennedy, including that she "was driving home from church" when she was killed in front of the Pepperwood apartment complex. As a result of the stipulation, Kennedy's husband was not called as a witness at trial. Specifically, the stipulation that was read to the jury stated, in relevant part, "the individual killed as a result of the shooting on March 7, 2017, in the front of the Pepperwood Apartment Complex was 55-year-old Catherine Marie Kennedy, who was driving home from church." The parties also stipulated to displaying a photograph of Kennedy to the jury, along with the People's exhibit showing the locations that Kennedy travelled on the night of the shooting.
On appeal, Torrez now challenges the trial court's original ruling allowing the prosecutor to elicit evidence that Kennedy was on her way home from church when she was shot. The People contend that Torrez's appellate challenge lacks merit for two reasons: (1) by subsequently stipulating to the admission of the fact that Kennedy was on her way home from church, Torrez has forfeited his argument that the trial court's original ruling on the admission of that fact into evidence was error; and (2) even assuming the argument is not forfeited, the trial court properly ruled that the evidence was admissible to show that Kennedy was an innocent bystander who was not involved in the situation that gave rise to the shooting. As we will explain, we will not rely on the forfeiture doctrine here because our Supreme Court has expressly declined to indicate how it applies in a situation like this. Instead, we reject Torrez's argument because we conclude that the trial court did not abuse its discretion in rejecting Torrez's challenge to the admission of the evidence pursuant to Evidence Code section 352.
1. Forfeiture
We first consider the People's contention that, by stipulating to the admission of the fact that Kennedy was on her way home from church, Torrez forfeited his ability to challenge the trial court's ruling allowing the admission of that evidence.
"[W]hen a party enters into a voluntary stipulation, he generally is precluded from taking an appeal claiming defects in the stipulation." (People v. Gurule (2002) 28 Cal.4th 557, 623 (Gurule).) However, this general rule comes into conflict with the principle that " '[a]n attorney who submits to the authority of an erroneous, adverse ruling after making appropriate objections or motions, does not waive the error in the ruling by proceeding in accordance therewith and endeavoring to make the best of a bad situation for which he was not responsible.' " (People v. Calio (1986) 42 Cal.3d 639, 643.)
Illustrating the principle that defense counsel is entitled to make the best of a ruling he or she believes to be erroneous is People v. Riggs (2008) 44 Cal.4th 248 (Riggs). In that case, the trial court overruled the defense counsel's objection, on admissibility grounds, to the People playing certain portions of a video while examining a witness. (Id. at p. 289.) Defense counsel responded to the People's playing of portions of the video during their case in chief by later playing the entire video during the defense's opening statement. (Ibid.) Our Supreme Court concluded that defendant had not forfeited his right to challenge the trial court's ruling on the admissibility of the portion of the video the People played, even though defense counsel had later played the entire video. As Riggs explained, "[w]e will assume . . . that defendant's decision to [play the video] was an instance of a party making the best of an allegedly erroneous ruling, and therefore does not bar his claim on appeal." (Id. at p. 289.)
However, Riggs did not concern a subsequent stipulation by defense counsel regarding certain facts that the trial court had ruled admissible over defense counsel's objection, and it accordingly did not address how to resolve the issue presented here, namely whether a defendant's stipulation to certain facts forfeits the defendant's ability to challenge on appeal an earlier ruling by the trial court overruling the defendant's objection to the admission of that evidence. That issue was squarely presented in Gurule, supra, 28 Cal.4th at pp. 622-624, but, as we will explain, our Supreme Court declined to resolve the issue, calling it a "close question." (Id. at p. 623.)
In Gurule, a murder case, the prosecution proposed to call the victim's mother to the stand to testify to certain facts about her son, some of which would be presented in a manner that was "high inflammatory." (Gurule, supra, 28 Cal.4th at p. 622.) "The trial court tentatively ruled that such evidence would be admissible. The parties then, after much negotiation, agreed to a stipulation that covered most of the facts to which [the victim's mother] would have testified." (Id. at p. 623) On appeal, the defendant challenged the trial court's evidentiary ruling allowing the testimony from the victim's mother, contending that "he was coerced into entering into a disadvantageous stipulation by the trial court's erroneous evidentiary ruling." (Ibid.) Defendant argued that although "the stipulation was better for the defense than [the mother's] live testimony, it 'did not begin to cure the prejudice arising from the court's erroneous ruling.' " (Ibid.) Arguing forfeiture, the People contended that "because defendant entered into the stipulation, he necessarily agreed to it and therefore cannot appeal on that ground." (Ibid.)
In addressing the People's forfeiture argument, our Supreme Court explained, "[w]e face here the collision of two legal principles. On the one hand, respondent is correct that when a party enters into a voluntary stipulation, he generally is precluded from taking an appeal claiming defects in the stipulation." (Gurule, supra, 28 Cal.4th at p. 623.) On the other hand, "[t]he trial court's erroneous ruling placed defense counsel in a dilemma: object, allow [the mother] to testify and possibly inflame the passions and prejudices of the jury, and then raise the error on appeal, or attempt to ameliorate the prejudice flowing from the court's ruling by stipulating to the most damaging facts." (Ibid.) Our Supreme Court declined to address how to resolve the collision of the two legal principles. Instead, it stated, "[w]hether defendant preserved for appeal the correctness of the trial court's tentative evidentiary ruling is a close question. We need not resolve the question, however, for assuming the issue is properly before us, we find the trial court's error was harmless." (Ibid.)
Accordingly, it is not clear from the applicable Supreme Court authority whether Torrez forfeited his ability to challenge the trial court's evidentiary ruling on appeal by later stipulating to the facts at issue. Taking the approach chosen by our Supreme Court in Gurule, supra, 28 Cal.4th at page 623, we will assume without deciding that Torrez's appellate challenge to the evidentiary ruling is properly before us, and we will proceed to consider the merits.
2. Exclusion of the Evidence Was Not Required by Evidence Code Section 352
Torrez contends that the trial court abused its discretion by overruling his objection, under Evidence Code section 352, to evidence that the People proposed to present through the testimony of Kennedy's husband. Specifically, the trial court ruled that it would allow testimony from Kennedy's husband about Kennedy's path of travel on the night of the shooting, including the fact that she was driving home from church and was near the Pepperwood complex because she stopped at Walmart on the way home.
Pursuant to Evidence Code section 352, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) " 'Evidence is substantially more prejudicial than probative . . . [only] if, broadly stated, it poses an intolerable "risk to the fairness of the proceedings or the reliability of the outcome" ' " (People v. Tran (2011) 51 Cal.4th 1040, 1047.) In applying section 352, the trial court enjoys "broad discretion," and " '[a] trial court's discretionary ruling under . . . section 352 will not be disturbed on appeal absent an abuse of discretion.' " (People v. Clark (2016) 63 Cal.4th 522, 586.)
Torrez focuses his argument on what he perceives to be the lack of probative value of the evidence that Kennedy was on her way home from church when she was shot. As Torrez understands the trial court's ruling, it admitted evidence Kennedy was coming from church because that evidence showed that Kennedy did not provoke the shooting and that Torrez did not shoot Kennedy in self-defense. Taking issue with the trial court's reasoning, Torrez argues that it is irrelevant whether Kennedy provoked the shooting or caused Torrez to act in self-defense, as the People were proceeding under a theory of transferred intent to establish the state of mind required for a murder conviction. Under the theory of transferred intent, the jury was instructed with CALCRIM No. 562 that "[i]f the defendant intended to kill one person, but by mistake or accident killed someone else instead, then the crime, if any, is the same as if the intended person had been killed." Torrez argues, "because the People's theory of guilt was transferred intent, provocation and self-defense had relevance solely as to the intended victims, namely the Westside gang members, not as to Mrs. Kennedy, to whom the shooter's intent was transferred."
We agree with Torrez that the issue of whether Kennedy provoked the shooting or whether Torrez was acting in self-defense against her has no relevance in the context of this case because the People proceeded on a theory of transferred intent. Thus, we have no quarrel with Torrez's contention that the evidence was not relevant if admitted solely to show lack of provocation or to disprove that Torrez might have acted in self-defense. Nevertheless, we reject Torrez's challenge to the admission of the evidence under Evidence Code section 352 because we believe that Kennedy's status as an innocent passerby is relevant for a more fundamental reason in this case, which the trial court also identified as part of its evidentiary ruling. Specifically, the evidence that Kennedy was driving past the Pepperwood complex after attending church and stopping at Walmart was relevant because it established the fundamental fact that Kennedy was an innocent and uninvolved passerby who had no connection to the gang dispute playing out at the Pepperwood complex. The trial court stated, "I do think the people are entitled to show through circumstantial evidence that she was an innocent victim in this situation," and it observed that the evidence was relevant to show "whether or not this was just a person who happened to be in the wrong place at the wrong time."
In evaluating whether the evidence should have been excluded under Evidence Code section 352, we are not bound by the trial court's reasoning as to why the evidence had probative value. " ' "[W]e review the ruling, not the court's reasoning and, if the ruling was correct on any ground, we affirm." ' " (People v. Cowan (2010) 50 Cal.4th 401, 473, fn. 25.)
The fact that Kennedy was an innocent passerby was squarely relevant because, if the People were to proceed on a theory of transferred intent in this case, they had to prove the fundamental fact that Kennedy was merely an innocent victim and that the real targets of the shooting were the fleeing Westside gang members. Only after establishing the fundamental fact that Kennedy had no connection to the dispute at the Pepperwood complex would the People's reliance on the theory of transferred intent make sense. Once that fact was established, the People could focus solely on Torrez's intent in firing a gun at the Westside gang members to establish that Torrez was guilty of murder in killing Kennedy. As the trial court reasonably observed, because no one was in the car with Kennedy to explain that she was driving in front of the Pepperwood complex by chance, rather than by design, when the shooting occurred, the explanation of why Kennedy was at that location would necessarily depend on circumstantial evidence. Here, the relevant circumstantial evidence reasonably included testimony from Kennedy's husband that Kennedy had been at church and had then stopped at Walmart, after which she was driving home when she was shot. We therefore reject Torrez's contention that the evidence lacked any probative value.
Although Torrez focuses on establishing that the evidence lacks probative value, he also discusses the issue of undue prejudice. " ' "The 'prejudice' referred to in . . . section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, 'prejudicial' is not synonymous with 'damaging.' " [Citation.]'. . . . [E]vidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors' emotional reaction." (People v. Scott (2011) 52 Cal.4th 452, 491.)
As we understand Torrez's argument, it would cause undue prejudice for the jury to learn that Kennedy was driving home from church because jurors would have their emotions inflamed upon learning that a church-going person, who had just attended a church meeting, was killed by a gang known as the "Diablos," which translates to "Devils." We are not persuaded by Torrez's argument. In our assessment, the fact that Kennedy was an innocent passerby who was senselessly shot while on the way home is already a very tragic and sympathy-inducing fact pattern. The fact that Kennedy was driving home from church rather than from some other activity does not, in our view, significantly add to the emotional reaction that most jurors would experience upon learning than an innocent victim had been killed. Moreover, the fact that the name of the gang involved here means "Devils" and Kennedy was coming from church is an interesting coincidence, but it does not suggest that the gang members intentionally target church members in their shootings, and it does not make the shooting any more tragic than it already is. Moreover, the trial court took care in its ruling to minimize whatever prejudice might occur from Kennedy's husband testifying about her having been at church by ruling that the People should not belabor the point that Kennedy was coming from church when presenting the map of Kennedy's path of travel during the testimony of Kennedy's husband.
Specifically, Torrez argues that "the inflammatory nature of the evidence cannot be overstated given that a completely innocent woman, coming home one evening from church, was shot by the purported head of a criminal street gang called the 'Diablos.' "
In addition to arguing that the trial court erred under the applicable rules of evidence by admitting evidence that Kennedy was driving home from church, Torrez also contends that the trial court's evidentiary ruling violated his constitutional right to due process because it rendered the trial fundamentally unfair. Because we conclude that the evidence was properly admitted under state-law evidentiary rules, we also reject the constitutional argument. "The 'routine application of state evidentiary law does not implicate [a] defendant's constitutional rights' " (People v. Hovarter (2008) 44 Cal.4th 983, 1010.)
In sum, we conclude that the trial court did not abuse its discretion in overruling Torrez's objection under Evidence Code section 352 and permitting the People to present evidence, through the testimony of Kennedy's husband, that Kennedy was driving past the Pepperwood complex because she was returning home after attending church and stopping at Walmart. B. The Trial Court Did Not Err by Declining to Order the People to Provide Immunity to A.R. to Protect Torrez's Right to Due Process
Torrez next contends that the trial court erred because it declined to order the People to provide immunity to a minor witness, A.R., whom the defense wanted to call to testify at trial to impeach Jose, but who asserted his Fifth Amendment right not to testify.
As background to this issue, A.R. was a minor who lived at the Pepperwood complex and who was friends with Jose. A.R. gave statements to the police and to a defense investigator describing what he witnessed on the night of the shooting. According to those statements, A.R. was outside in the parking lot in the back of the Pepperwood complex smoking marijuana when he saw Jose either walking or running. A.R. then went toward the middle of the complex to see what was happening, either immediately before or after he heard shots. A.R. did not see Torrez that night. According to A.R., prior to being outside in the back of the apartment complex, he was home trying to fall asleep.
A.R. told the police that he saw Jose running; he told the defense investigator that he saw Jose walking.
A.R. told the police he went to the middle of the complex before he heard shots; he told the defense investigator he went to the middle of the complex after he heard shots.
In contrast to A.R.'s statements, Jose testified that A.R. was at Torrez's apartment on the night of the shooting. According to Jose, when he came out of the restroom, the only person left at the apartment was A.R., who was rolling a marijuana cigarette and said he didn't know where everyone went. Jose did not remember seeing A.R. at any point later that evening.
Prior to trial, it became clear that although the defense intended to call A.R. as a witness, A.R. intended to invoke his Fifth Amendment privilege against self-incrimination. The prosecutor stated on the record that the People did not intend to grant immunity to A.R. so that he could testify. Defense counsel therefore filed a motion titled "Motion Requesting that the Government Grant Immunity to Defense Witness, [A.R.]." The motion argued, "[A.R.] completely contradicts Jose's testimony. [A.R.] denies being at the apartment prior to the shooting. [A.R.] denies see[ing] Mr. Torrez on the night of the shooting. If believed, [A.R.'s] testimony would call into question Jose's credibility in which he denies being the shooter. Depriving the jury of [A.R.'s] testimony would distort the fact-finding process resulting in a violation of Mr. Torrez's due process to a fair trial."
At the hearing on the motion, defense counsel explained that it was his position that the court should "make a finding that the failure to grant[] immunity to [A.R.] by the government essentially amounts to prosecutorial error" and would deprive Torrez of his right to present a defense and his right to a fair trial. The trial court denied relief, explaining both that it believed it did not have the authority to make such an order, and that, in any event, relief was not warranted under the relevant case law describing the circumstances in which a prosecutor's refusal to grant immunity to a defense witness constitutes prosecutorial misconduct.
As Torrez frames his argument on appeal, the trial court erred in not ordering the prosecution to grant immunity to A.R. Torrez contends that "prosecutorial immunity can be compelled as a requirement of due process if the prosecutor's refusal to grant immunity for a defense witness amounts to prosecutorial misconduct."
In support of this principle, Torrez cites People v. Masters (2016) 62 Cal.4th 1019 (Masters).) In Masters our Supreme Court held that "California courts have no authority to confer [judicial] use immunity on witnesses." (Id. at p. 1051.) Because " 'the power to confer immunity is granted by statute to the executive' " giving the court power to order immunity would "impermissibly interfere[] with the executive branch's prosecutorial discretion." (Id. at pp. 1050-1051.)
As Masters specified, the type of immunity at issue here is use immunity, as contrasted with transactional immunity. (Masters, supra, 62 Cal.4th at p. 1051.) " 'Transactional immunity protects the witness against all later prosecutions relating to matters about which [the witness] testifies.' [Citation] Use immunity, on the other hand, 'protects a witness only against the actual use of [the witness's] compelled testimony, as well as the use of evidence derived therefrom.' " (People v. Kennedy (2005) 36 Cal.4th 595, 613.)
Although Masters made it clear that a trial court may not grant immunity to a defense witness, Masters identified federal case law holding that a prosecutor commits misconduct and violates a defendant's due process rights in certain circumstances when the prosecutor refuses defense counsel's request to grant immunity to a defense witness who would otherwise invoke his or her Fifth Amendment right not to testify. (Masters, supra, 62 Cal.4th at pp. 1051-1052.) Specifically, while generally acknowledging California's long-standing definition of prosecutorial misconduct, Masters cited the federal Third Circuit's test set forth in Government of Virgin Islands v. Smith (3d Cir. 1980) 615 F.2d 964, 972 (Smith) and United States v. Quinn (3d Cir. 2013) 728 F.3d 243, 262 (Quinn), for determining whether prosecutorial misconduct has occurred in the context of a prosecutor refusing to grant use immunity to a defense witness. The five factors outlined in the Third Circuit case law are "whether '[1] [witness immunity was] properly sought in the district court; [2] the defense witness [is] available to testify; [3] the proffered testimony [is] clearly exculpatory; [4] the testimony [is] essential; and [5] there [are] no strong governmental interests which countervail against a grant of immunity.' " (Masters, at pp. 1051-1052.) Masters did not expressly endorse or adopt the Third Circuit test, but it applied the test for the sake of its analysis in evaluating and rejecting the defendant's prosecutorial misconduct argument. As Masters stated, "if we were to assume that [the Third Circuit cases] state the appropriate test for evaluating a constitutional claim arising from the denial of witness immunity," the defendant had failed to satisfy that test. (Id. at p. 1052.)
"In California, the law regarding prosecutorial misconduct is settled: 'When a prosecutor's intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated. Prosecutorial misconduct that falls short of rendering the trial fundamentally unfair may still constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to persuade the trial court or the jury.' " (Masters, supra, 62 Cal.4th at p. 1052.)
Masters also discussed the remedy that applies when a prosecutor commits misconduct in the context of defense witness use immunity. "When the prosecutor is found have committed misconduct by withholding immunity, the remedy is to set aside the conviction and permit a new trial, at which the prosecutor can be ordered 'to grant statutory use immunity,' so that the witness can testify, or else face 'a judgment of acquittal.' " (Masters, supra, 62 Cal.4th at p. 1051.) Thus, according to Masters, the relief available to Torrez in the trial court if he could show prosecutorial misconduct would be an order requiring that the prosecutor must either grant use immunity to A.R. or face a judgment of acquittal.
In arguing to the trial court that the prosecutor had committed misconduct by not granting use immunity to A.R., Torrez relied upon the Third Circuit test discussed and applied in Masters. However, he also relied upon an alternative test set forth by the Ninth Circuit Court of Appeals, which our Supreme Court in Masters neither acknowledged nor applied. (Masters, supra, 62 Cal.4th at pp. 1049-1053.) Under the Ninth Circuit test, a prosecutor commits misconduct by not granting use immunity to a defense witness if the defendant shows that: "(1) the defense witness's testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness's testimony, but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial." (United States v. Straub (9th Cir. 2008) 538 F.3d 1147, 1162 (Straub).)
In ruling on Torrez's motion, the trial court applied both the Third Circuit test and the Ninth Circuit test, and it concluded that the prosecutor had not committed misconduct under either test by failing to grant use immunity to A.R. On appeal, Torrez again relies on both the Third Circuit and the Ninth Circuit tests, arguing that under either of them the prosecutor committed misconduct in not granting use immunity to A.R. "We review the trial court's rulings on prosecutorial misconduct for abuse of discretion." (People v. Peoples (2016) 62 Cal.4th 718, 792-793.)
1. The Third Circuit Test
A prosecutor commits misconduct under the Third Circuit test if the defendant can establish (1) the defendant sought to obtain witness use immunity in the trial court; (2) the witness is available to testify; (3) " 'the proffered testimony [is] clearly exculpatory;' " (4) " 'the testimony [is] essential;' " and (5) " 'there [are] no strong governmental interests which countervail against a grant of immunity.' " (Masters, supra, 62 Cal.4th at pp. 1051-1052.) Here, as we will explain, Torrez cannot satisfy the Third Circuit test because A.R.'s proffered testimony was not "clearly exculpatory." (Ibid.)
"In this context, clearly exculpatory means that the witness's testimony 'would exonerate or free [the defendant] of guilt or blame.' (Quinn, supra, 728 F.3d at p. 262.) 'Testimony that is "at best speculative," [citation] "severely impeached" by the witness's prior inconsistent statement(s), [citation] ambiguous on its face, [citation], or "even if believed, would not in itself exonerate [the defendant]," [citation], is not clearly exculpatory.' (Ibid.) Testimony is not clearly exculpatory when it relates only to the credibility of the government's witnesses. (Smith, supra, 615 F.2d at p. 972 . . . .)" (People v. Hull (2019) 31 Cal.App.5th 1003, 1024 (Hull), italics added.)
According to Torrez's own description of the relevance of A.R.'s testimony, the testimony was important because it would impugn Jose's credibility: "Torrez'[s] entire defense was that it was Jose, not he (Torrez) who shot and killed Ms. Kennedy and that Jose was fingering him in order to avoid a life prison term. It was thus critical to Torrez'[s] defense to impugn Jose's credibility, for Torrez'[s] defense depended on showing Jose was lying out of self-interest. To this end, the defense desired to call [A.R.] to testify, for his testimony would contradict a significant portion of Jose's testimony." (Italics added.) As Torrez argues, "It was paramount . . . that the defense challenge Jose's credibility wherever and however possible. [A.R.] provided one means of doing so, because his testimony would have directly contradicted a major component of Jose's testimony." Torrez's theory is that A.R.'s testimony would impugn Jose's credibility because of an inconsistency in their descriptions of the night of the shooting. Specifically, A.R's account differs from Jose's account because Jose stated that A.R. was at Torrez's apartment on the night of the shooting, whereas A.R. did not claim to be at Torrez's apartment, but instead stated that he was first at home trying to sleep and then was outside in a parking lot at the back of the apartment complex smoking marijuana. Had A.R. testified, Torrez would have pointed to the disagreement between Jose and A.R. about where A.R. was located on the night of the shooting to raise a doubt in the minds of the jurors about whether they could believe any part of Jose's testimony describing the relevant events.
At the trial court hearing on Torrez's motion requesting that the government grant immunity to A.R., defense counsel represented that A.R. was sitting directly in front of Torrez's apartment and would have seen anyone coming in or out, but did not see Torrez, thus contradicting Jose's claim that he was in Torrez's apartment with Torrez. However, the factual basis for defense counsel's statement is not clear. Neither of the interview reports that defense counsel attached to the motion indicate that A.R. had a view of people coming out of Torrez's apartment. Instead, A.R. stated that he was in the back of the apartment complex, facing a school, and smoking marijuana at the relevant time. Although A.R stated that he did not see Torrez on the night of the shooting, he did not say he was watching people exit Torrez's apartment.
However, as we have explained, the fact that proffered testimony would impugn the credibility of a prosecution witness is not sufficient to make the proffered testimony clearly exculpatory. (Hull, supra, 31 Cal.App.5th at p. 1024.) Therefore, A.R.'s proffered testimony does not qualify as clearly exculpatory because it relates only to Jose's credibility. Further, other than impugning Jose's testimony, A.R.'s proffered testimony is not exculpatory in any other manner. A.R. did not see the shooting and he had no information about whether, as Torrez claimed, it was Jose rather than Torrez who shot the gun.
Because we conclude that A.R.'s proffered testimony was not clearly exculpatory, we need not, and do not, discuss the other factors in the Third Circuit test. (See Hull, supra, 31 Cal.App.5th at p. 1028 [because "[d]efendant failed to a make any showing that [the witness'] trial testimony was both clearly exculpatory and essential" the court had no need to address the fifth factor in the Third Circuit test]; Quinn, supra, 728 F.3d at p. 263 [because the defendant did not show the defense witness's testimony was clearly exculpatory, "we do not need to consider whether [that] testimony was essential or whether the Government had a strong countervailing interest for refusing to grant . . . immunity"].)
2. The Ninth Circuit Test
The Ninth Circuit test is satisfied if the defense witness's testimony was relevant and either the prosecutor acted with the intention to distort the fact finding process (which Torrez does not claim to be the case here), or "the prosecution granted immunity to a government witness in order to obtain that witness's testimony[,] but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial." (Straub, supra, 538 F.3d at p. 1162.) As Masters did not cite the Ninth Circuit test, it is unclear whether our Supreme Court would find it to be applicable to analyzing prosecutorial misconduct under California law. However, because Torrez has raised the issue, and the trial court also addressed it, we will assume the applicability of the Ninth Circuit test for the sake of argument and will discuss whether Torrez has established prosecutorial misconduct under that test.
The portion of the Ninth Circuit test upon which Torrez relies requires a showing that "the prosecution granted immunity to a government witness in order to obtain that witness's testimony[,] but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness[.]" (Straub, supra, 538 F.3d at p. 1162.) As the trial court correctly pointed out, Torrez cannot establish prosecutorial misconduct under the Ninth Circuit test because A.R.'s proffered testimony would not have directly contradicted the testimony of a government witness to whom the prosecution granted immunity. The only witness who testified with immunity in this case was M.A., but there is no contention that A.R.'s proffered testimony would contradict M.A.'s testimony. Jose did not testify pursuant to a grant of immunity. Instead, he testified pursuant to a plea agreement, under which he admitted his involvement in the shooting in exchange for an agreement that his proceedings would occur in the juvenile court system.
At the request of the People, the trial court ordered M.A. to testify pursuant to section 1324, which provides that when a witness is ordered under that section to testify to incriminating information, "no testimony or other information compelled under the order or any information directly or indirectly derived from the testimony or other information may be used against the witness in any criminal case." (§ 1324.)
Torrez acknowledges that Jose was not testifying pursuant to a grant of immunity. However, he claims that for the purpose of the Ninth Circuit test, we should treat a prosecution witness testifying pursuant to a plea agreement as the equivalent to a prosecution witness who has been granted immunity by the People. In support of his argument, Torrez points out that a plea bargain and a grant of immunity are similar because they are both sources of possible witness bias. (People v. Lawley (2002) 27 Cal.4th 102, 162 [in the case at issue, the jury would understand from the instructions that both "a plea bargain or grant of immunity may be considered as evidence of interest or bias in assessing the credibility of prosecution witnesses"].) He also cites case law observing that, for certain purposes, a plea agreement and a grant of immunity by the prosecution are equivalent. However, as we will explain, the case law cited by Torrez is inapposite because it equates a plea agreement with a grant of immunity in situations that are wholly unrelated to the issue of prosecutorial misconduct as discussed by the Ninth Circuit in Straub.
The principal California case that Torrez cites is People v. Manson (1976) 61 Cal.App.3d 102, but it is not relevant here. In Manson, the defendant argued that the trial court prejudicially erred by not ruling on the immunity status of the main witness for the prosecution, who was also a co-conspirator, prior to the completion of her testimony. (Id. at p. 134.) The defendant contended that the pending immunity request gave the witness an incentive to testify in a manner that pleased the prosecution, as the request might otherwise be withdrawn. (Ibid.) Manson found no merit to the argument, explaining that our Supreme Court had rejected a similar argument in the context of a plea agreement benefitting the prosecution witness, who was also an accomplice, when the sentencing of the witness was postponed until after the witness's testimony, and thus might give the witness an incentive to please the prosecution. (Id. at pp. 134-135, citing People v. Lyons (1958) 50 Cal.2d 245, 265.) Manson stated, "We are of the opinion that no meaningful distinction exists between testimony obtained as the result of a grant of immunity and testimony obtained as the result of a plea bargain. Both 'furnish the defendant with a powerful weapon for attacking the credibility of the inherently suspect witnesses . . . .' " [Citation] Neither is necessarily unfair as a matter of law." (Manson, at pp. 134-135.) When read in context, Manson equated testimony given pursuant to a grant of immunity to testimony given pursuant to a plea bargain because both situations called into question the witness's credibility. That discussion has no bearing on whether a grant of immunity and a plea agreement should be equated when determining whether a prosecutor has committed misconduct by refusing to grant immunity to a defense witness.
Torrez also cites a string of federal cases to support his argument that a grant of immunity to a prosecution witness should be treated the same as a plea agreement. However, that case law also has no bearing on the prosecutorial misconduct issue presented here. (Powers v. Coe (2d Cir. 1984) 728 F.2d 97, 103-104 [for purposes of deciding whether certain prosecutorial actions entitle a prosecutor to absolute immunity from liability for federal civil rights law violations, or only qualified immunity, the prosecutor's act of entering into an agreement not to prosecute someone is closely analogous to the act of entering into a plea bargain with someone, which gives rise to absolute immunity]; United States v. Greene (8th Cir. 1993) 995 F.2d 793, 798 [for purposes of analyzing the defendant's argument that it was error to exclude evidence that he rejected a proposed plea agreement, the court explained with respect to the question of admissibility, "[w]e do not see a relevant distinction between plea agreements and immunity agreements except, perhaps, as to the weight that jurors might give to them"]; Arkebauer v. Kiley (7th Cir. 1993) 985 F.2d 1351, 1355 [in a federal civil rights action to enjoin a state prosecution, when discussing whether the government was estopped from prosecuting the plaintiff based on a prior immunity agreement, the court cited a case from another federal circuit, which "reasoned that assurances of immunity from prosecution in return for the informant's testimony were the functional equivalent of a plea bargain and that failure of the state to abide by the agreement was a per se bad faith prosecution"].)
In sum, the Ninth Circuit was clear in Straub, supra, 538 F.3d at page 1162, that prosecutorial misconduct may be shown when the People offer use immunity to a prosecution witness but withhold it from a defense witness who will directly contradict that prosecution witness. Neither Straub nor any of the cases cited by Torrez suggests that the same rule applies when the People refuse to grant immunity to a defense witness who will contradict the testimony of a prosecution witness who has entered into a plea agreement. Torrez has presented us with no reason to conclude that the Ninth Circuit would expand its test to include such a circumstance. Accordingly, we conclude that the Ninth Circuit test is not satisfied here because A.R.'s testimony was not offered to directly contradict a witness to whom the prosecution had granted immunity, but instead to contradict a witness who was testifying pursuant to a plea agreement.
Further, Torrez fails to satisfy the Ninth Circuit test because it applies only when the prosecution has refused to grant immunity to a defense witness "with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial." (Straub, supra, 538 F.3d at p. 1162, italics added.) As we have explained in connection with our analysis under the Third Circuit test, A.R.'s testimony was only minimally relevant to Torrez's defense. Although A.R.'s proffered testimony might have cast some doubt on Jose's credibility because A.R. and Jose disagreed on whether A.R. was at Torrez's apartment on the night of the shooting, the detail on which Jose and A.R. disagree had nothing to do with the shooting itself and concerned only a peripheral detail in Jose's testimony. Accordingly, A.R.'s proffered testimony was not central to Torrez's defense, which was based on the theory that it was Jose, not Torrez, who committed the shooting. In light of the minimal relevance of A.R.'s proffered testimony to the question of Torrez's guilt, the trial court was well within its discretion to conclude that the prosecutor's refusal to grant immunity to A.R. to enable him to testify did not so distort the fact-finding process that Torrez was denied his right to due process. C. Torrez's Contention That Insufficient Evidence Supports a Finding That He Acted With Premeditation and Deliberation
We next consider Torrez's contention that insufficient evidence supports the jury's finding that he acted with premeditation and deliberation in committing murder, and thus should not have been found guilty of first degree murder.
1. Substantial Evidence Supports a Finding of Premeditation and Deliberation
"In assessing the sufficiency of the evidence supporting a jury's finding of premeditated and deliberate murder, a reviewing court considers the entire record in the light most favorable to the judgment below to determine whether it contains substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. . . . When the circumstances reasonably justify the jury's findings, a reviewing court's opinion that the circumstances might also be reasonably reconciled with contrary findings does not warrant reversal of the judgment." (People v. Mendoza (2011) 52 Cal.4th 1056, 1068-1069, citations omitted (Mendoza).)
" ' "A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course of action; 'premeditation' means thought over in advance. [Citations.]" . . . " 'Premeditation and deliberation can occur in a brief interval. "The test is not time, but reflection. 'Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.' " ' [Citation.]" (Mendoza, supra, 52 Cal.4th at p. 1069, citations omitted.)
In accordance with these principles, the jury was instructed with CALCRIM No. 521, in relevant part:
"The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the acts that caused death.
"The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time."
As our Supreme Court has explained, "In People v. Anderson (1968) 70 Cal.2d 15, we identified three types of evidence—evidence of planning activity, preexisting motive, and manner of killing—that assist in reviewing the sufficiency of the evidence supporting findings of premeditation and deliberation. . . . . We have made clear, however, that ' "Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation and deliberation." ' " (Mendoza, supra, 52 Cal.4th at p. 1069, citation omitted.) The Anderson " 'guidelines are descriptive and neither normative nor exhaustive, and . . . reviewing courts need not accord them any particular weight.' " (People v. Rivera (2019) 7 Cal.5th 306, 324.)
Torrez contends that based on the standards set forth above, and assuming, as the jury found, that Torrez was the shooter, insufficient evidence supported a finding that Torrez acted with premeditation and deliberation in shooting at the fleeing Westside gang members. According to Torrez, the evidence established that, after finding out that Westside gang members were tagging the apartment complex, he "immediately took [off] in pursuit of the intruders, rashly and spontaneously shooting at them as they ran off." Thus, according to Torrez, the only inference possible from the evidence was that he engaged in "a rash and impulsive act, without careful consideration or reflection," which was "ultimately committed because of provocation by young men who, in Torrez'[s] mind were mortal enemies." Torrez contends that "no evidence was presented . . . that he shot after carefully considering the pros and cons of doing so."
We reject Torrez's argument because it presents only one possible interpretation of the evidence. Although it is possible that Torrez acted rashly and impulsively, there was also ample evidence presented at trial from which the jury could reach an opposite conclusion, namely that he acted in a cold and calculated manner with careful consideration in shooting at the Westside gang members. Specifically, the jury could conclude that before shooting at the fleeing Westside gang members, Torrez deliberately and with premeditation formed an intent to kill, motivated by his desire to adhere to the rules followed by criminal street gangs when confronted with rival gang members actively engaged in acts of disrespect in that gang's territory. As explained by the gang expert who testified for the People at trial, there is an ongoing rivalry and turf war between the Westside gang and the Diablos gang. In the world of criminal street gangs, if one gang lets a rival gang come into the neighborhood and apply gang graffiti without taking action, the gang who failed to take action would be viewed as weak. If a gang member sees rival gang members actively doing a disrespectful act on that gang member's property, the reaction to that disrespectful act would typically be immediate. A gang member would be expected to handle the rivals encountered in that gang member's area with violence. Similarly, the defense's gang expert explained that, in gang culture, a gang member who discovers a rival gang tagging on that gang member's territory would be expected to engage in a confrontation that would "go down right there."
Based on the expected course of conduct in the world of criminal street gangs, it is reasonable for a juror to infer that, as the leader of the Diablos gang in the Pepperwood apartment complex, when Torrez was informed that Westside gang members were tagging the complex, he would decide upon the appropriate response. It would also be reasonable for a juror to infer that Torrez would conclude that in light of the applicable standards of conduct and the Diablos gang's interest in maintaining its reputation, he should take violent and immediate action against the Westside gang members by chasing after them and shooting at them to kill them. Of course, Torrez was required to act quickly to respond with violence to the Westside gang members, as they were fleeing from the complex, but the fact that Torrez had only a limited time period to respond does not mean that he necessarily acted without premeditation and deliberation about the course of action he should take in response to the situation. Moreover, the evidence at trial showed that Torrez had sufficient time to make a cold and calculated decision to kill. Because of the large and spread out nature of the Pepperwood apartment complex, Torrez had to run a considerable distance of 661 feet to reach the Westside gang members and shoot at them, allowing time for him to weigh the pros and cons of his intended course of action.
The gist of Torrez's argument is that because of the extreme hatred and rivalry between the Westside gang and the Diablos gang, the only logical inference is that Torrez acted rashly and impulsively when shooting at the Westside gang members rather than with premeditation and deliberation. A similar argument was considered and persuasively rejected by the court in People v. Rand (1995) 37 Cal.App.4th 999. In Rand, the defendant, a member of the Crips gang, shot and killed a man by the roadside whom he identified as a member of the rival Blood gang because of the color he wore. (Id. at p. 1001.) In arguing that insufficient evidence supported a first degree murder conviction, defendant argued that "because Crips and Bloods hate each other so much, '[a] Blood [or anyone else, for that matter] dressed in red is a provocation to a Crip, and is intended to be a provocation to a Crip.' Thus, 'for a Crip to shoot a Blood . . . is a proverbial 'kneejerk' reaction, just the opposite of a shooting done with premeditation and deliberation.' " (Ibid.) Rand rejected the argument, characterizing it as "nonsensical." (Ibid.) "A studied hatred and enmity, including a pre-planned, purposeful resolve to shoot anyone in a certain neighborhood wearing a certain color, evidences the most cold-blooded, most calculated, most culpable, kind of premeditation and deliberation." (Ibid.) In another gang case, People v. Martinez (2003) 113 Cal.App.4th 400, 413, there was sufficient evidence of premeditation and deliberation in an attempted murder case when the defendant pulled out a gun and started shooting at rival gang members who had just pulled into a gas station. As Martinez explained, the jury "could reasonably infer . . . that the motive for the shooting involved gang rivalry" and the defendant acted deliberately in aiming the gun and then firing it as the rival gang members fled. (Ibid.) Indeed, as our Supreme Court has acknowledged, "[p]remeditation can be established in the context of a gang shooting even though the time between the sighting of the victim and the actual shooting is very brief." (People v. Sanchez (2001) 26 Cal.4th 834, 849.) Accordingly, in Torrez's case, we conclude that even though there was an intense rivalry between the Westside and Diablos gangs, the existence of that rivalry did not preclude the jury from making the reasonable inference that Torrez made a cold, calculated and considered decision to shoot and kill the Westside gang members when he found out that they were on the premises tagging the Pepperwood apartment complex. Substantial evidence therefore supports the first degree murder verdict.
2. To the Extent Torrez Intends to Challenge Misstatements of Law That He Alleges Were Made During Closing Argument and the Trial Court's Denial of his Motion for a Mistrial, We Do Not Reach Those Issues
Before concluding our discussion of Torrez's challenge to the sufficiency of the evidence to support the jury's finding of premeditation and deliberation, we address two other points that Torrez raises throughout his briefing of that issue. Specifically, within Section III of Torrez's brief, which bears the heading "The Evidence Was Insufficient to Support the Jury's Conclusion that Torrez Killed with Premeditation and Deliberation" (bolding omitted & capitalization altered), Torrez includes a subsection which purports to set forth "The Factors that Enabled the Jury to Find the Murder Was Premeditated and Deliberate Where There Was in Fact No Meaningful Evidence to that Effect." (Bolding omitted.) Under that subsection, Torrez argues at length that during the prosecutor's additional closing argument, she repeatedly misstated the law regarding premeditation and deliberation. Among other things, Torrez argues that the prosecutor confused the issue of intent with the issue of premeditation, and that the sports analogies and yellow-light analogies the prosecutor used to illustrate the relevant concepts were misleading. In the same subsection of his brief, Torrez also takes issue with the trial court's order denying his motion for a mistrial, which was based on statements that the prosecutor made at the beginning of her supplemental closing argument, and which the trial court later struck from the record and ordered the jury to disregard based on defense counsel's objection. Torrez argues that despite the trial court's admonition, "the proverbial bell simply could not be unrung."
Torrez presents no separate argument heading seeking appellate relief for any prosecutorial misconduct that might have occurred as a result of the prosecutor's purported misstatement of law, and no separate argument heading challenging the trial court's denial of his motion for a mistrial. Indeed, Torrez ties the discussion to his attempt to seek reversal based on his challenge to the sufficiency of the evidence. Torrez explains that the reason he pointed out the misstatements of law in the prosecutor's closing argument, including the portion that was the subject of the motion for a mistrial, was to show "just how it was that the jury, without any evidence to that effect, nevertheless found [Torrez] had premeditated and deliberated such that [it] warranted a conviction of first degree murder." (Italics added.)
Because Torrez's challenges to the prosecutor's alleged misstatements of law and the trial court's ruling on the motion for a mistrial are not presented under separate argument headings from Torrez's challenge to the sufficiency of the evidence, we may properly decline to address those issues. (See Cal. Rules of Court, rule 8.204(a)(1) ["Each brief must: [¶] . . . [¶] (B) State each point under a separate heading or subheading summarizing the point, and support each point by argument"]; Winslett v. 1811 27th Avenue, LLC (2018) 26 Cal.App.5th 239, 248, fn. 6 ["Arguments not raised by a separate heading in an opening brief will be deemed waived."]; Alameida v. State Personnel Bd. (2004) 120 Cal.App.4th 46, 59 ["We may disregard arguments not properly presented under appropriate headings."]; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830, fn. 4 ["The failure to head an argument . . . constitutes a waiver"].)
Further, Torrez cites no case law relevant to obtaining a reversal based on prosecutorial misconduct for misstating the law during closing argument or based on an erroneous ruling denying a motion for a mistrial. Torrez's failure to cite any relevant authority means that we may treat the issues as insufficiently developed to warrant further discussion and analysis. (People v. Stanley (1995) 10 Cal.4th 764, 793 [" '[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.' "]; Nickell v. Matlock (2012) 206 Cal.App.4th 934, 947 [conclusory assertions in a brief unsupported by citations to evidence or legal authority are forfeited]; Aviel v. Ng (2008) 161 Cal.App.4th 809, 821 [issue was forfeited "for want of cognizable legal argument"]; County of Butte v. Emergency Medical Services Authority (2010) 187 Cal.App.4th 1175, 1196, fn. 7 [where a "contention is not supported by citation to any legal authority," it "is thus forfeited as improperly presented"]; Nelson v. Avondale Homeowners Assn. (2009) 172 Cal.App.4th 857, 862 [when an appellant asserts a point " 'but fails to support it with reasoned argument and citations to authority, we treat the point as waived.' "].)
Accordingly, we do not address Torrez's contentions that the prosecutor misstated the law or that the trial court erred in failing to grant a mistrial during the prosecutor's additional closing argument. Those arguments are not properly presented and not properly developed as independent arguments for reversal of the judgment. D. The Trial Court Did Not Err by Granting the Jury's Request for Additional Closing Argument
Torrez's final contention is that the trial court abused its discretion and violated Torrez's right to due process and right to a trial by jury when it granted the jury's request to permit counsel to offer additional closing argument on certain issues specified by the jury, over the objection of defense counsel. Specifically, as we have explained, after the jury was informed by the trial court that it could request additional closing argument, the jury requested additional argument to address the following areas with respect to first degree murder: "[] That the defendant carefully weighed the considerations for and against his choice[;] [¶] [] Evidence supporting premeditation[;] [¶] [] Role of provocation[.]"
Torrez does not dispute that a trial court has discretion in appropriate circumstances to permit counsel to present additional closing argument to help the jury resolve an impasse in reaching a verdict. As he acknowledges, Rule 2.1036(b) of the California Rules of Court states that after a jury reports that it has reached an impasse in its deliberations,"[i]f the trial judge determines that further action might assist the jury in reaching a verdict, the judge may: [¶] (1) Give additional instructions; [¶] (2) Clarify previous instructions; [¶] (3) Permit attorneys to make additional closing arguments; or [¶] (4) Employ any combination of these measures." (Italics added.) Further, as Torrez recognizes, both People v. Salazar (2014) 227 Cal.App.4th 1078, 1088-1091 and People v. Young (2007) 156 Cal.App.4th 1165, 1171-1172 discuss and acknowledge a trial court's discretion to permit additional closing argument in light of a jury impasse. It is also undisputed that we apply an abuse of discretion standard of review when determining whether the trial court erred in allowing further closing argument. (Salazar, at p. 1088 [applying an abuse of discretion standard of review].)
Torrez contends that the trial court abused its discretion in permitting additional closing argument because in allowing additional argument on the areas of premeditation, deliberation and provocation, as requested by the jury, defense counsel "was being put in a position of arguing something that expressly contradicted the defense [he] had presented at trial." According to Torrez, the order allowing additional argument regarding premeditation, deliberation and provocation "forc[ed] defense counsel to either stand quiet or argue a position at odds with the defense presented and argued at trial." According to Torrez, the concepts of premeditation, deliberation and provocation were inapplicable to the defense's theory of the case because the defense contended that Jose, rather than Torrez, was the shooter. Torrez contends that, under the circumstances, the order allowing additional argument violated his right to due process and his right to a trial by jury by permitting further closing argument on issues at odds with Torrez's defense. Moreover, he argues that instead of permitting additional closing argument, the trial court should have addressed the jury's concerns by providing additional instruction on the legal concepts of premeditation, deliberation and provocation. As we will explain, Torrez's position lack merit.
We first observe that if the trial court had followed Torrez's suggested approach of providing additional instruction on the law as it relates to premeditation, deliberation and provocation rather than allowing further closing argument, the trial court would not have been addressing the jury's request and thus would not have assisted the jury in overcoming its impasse. In an earlier note, the jury had already asked for legal clarification on certain concepts relating to provocation, premeditation and deliberation, and the trial court had responded with a legal clarification, with which defense counsel concurred. Despite receiving that clarification, the jury's impasse continued, causing it to send the note at issue here, in which it requested additional closing argument on certain factual matters concerning premeditation, deliberation and provocation. Self-evidently when the jury asked for additional argument on the subject of (1) "the defendant carefully weigh[ing] the considerations for and against his choice," (2) "[e]vidence supporting premeditation," and (3) the "[r]ole of provocation," it was asking for argument concerning the application of the evidence to the governing legal standards. The jury's note cannot reasonably be interpreted as a request for further instruction from the trial court on the governing law, and the trial court was accordingly well within its discretion to respond to the note by permitting further argument rather than by providing further legal instruction.
Further, we do not agree with defense counsel that the trial court's order permitting additional closing argument on the issue of premeditation, deliberation and provocation forced defense counsel to either "stand quiet or to argue a position at odds with the defense presented and argued at trial." For one thing, as the trial court properly pointed out, even if, as defense counsel argued, Jose, rather than Torrez, was the shooter, the People were still pursuing a first degree murder conviction against Torrez on the theory that Torrez aided and abetted Jose in committing a first degree murder. Thus, even accepting defense counsel's argument that Jose, rather than Torrez, was the shooter, to escape liability for first degree murder under an aiding and abetting theory, defense counsel would still have to argue that Torrez was not guilty of aiding and abetting a first degree murder because neither Torrez nor Jose acted with premeditation and deliberation. (Chiu, supra, 59 Cal.4th 155, 159, 166-167 [an aider and abettor may be convicted of first degree premeditated murder under direct aiding and abetting principles, as "[a]n aider and abettor who knowingly and intentionally assists a confederate to kill someone could be found to have acted willfully, deliberately, and with premeditation, having formed his own culpable intent" and thus "acts with the mens rea required for first degree murder."].) Accordingly, it would have been consistent with the theory that Jose was the shooter, rather than Torrez, for defense counsel to discuss premeditation, deliberation and provocation when disputing Torrez's guilt under an aiding and abetting theory.
Moreover, even if, as Torrez claims, the concepts of premeditation, deliberation and provocation were not relevant to Torrez's theory of the case, defense counsel was not "being put in the position of either arguing a position incompatible with his client's defense our not arguing at all." As the trial court reasonably pointed out, "the court is not ordering the defense to argue anything. I'm not ordering you to argue that your client's the shooter or he's not the shooter. I'm not ordering that you change your theory of the case. As I have indicated before, you can tell the jury your client is not the shooter; so provocation is not relevant. You can tell the jury that your position is that your client is not the shooter, but the court has asked you to clarify some things, so you're going to do that. Or you don't have to argue at all. It's up to you." Indeed, as shown by the additional closing argument that defense counsel eventually delivered, he was not required to be silent or to deliver an argument inconsistent with the defense theory. Instead, defense counsel was able to use the additional argument to emphasize the People's burden of proof and the presumption of innocence and to reinforce his contention that it was Jose, not Torrez, who was the shooter, once again reviewing the evidence that suggested Jose committed the shooting.
In sum, we find no merit to Torrez's contention that the trial court abused its discretion or violated Torrez's constitutional rights by granting the jury's request for additional closing argument.
DISPOSITION
The judgment is affirmed.
IRION, J. WE CONCUR: BENKE, Acting P. J. DATO, J.