Opinion
D074918
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. SHYREHL JOSEPH WESLEY, Defendant and Appellant.
Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN375372) APPEAL from a judgment of the Superior Court of San Diego County, Richard R. Monroy, Judge. Affirmed. Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Shyrehl Joseph Wesley of the first degree murder (Pen. Code, § 187, subd. (a)) of his friend, D'Angelo Charon; possession of a firearm by a felon (§ 29800, subd. (a)(1)); and owning or possessing ammunition or a firearm while prohibited (§ 30305, subd. (a)(1)). The jury also found true a firearm allegation that Wesley personally discharged a firearm causing death (§ 12022.53, subd. (d)). Before sentencing, Wesley admitted allegations that he had a prior felony conviction for which he served a prison term (§§ 667.5, subd. (b), 668), and that the prior felony qualified as both a serious felony (§§ 667, subd. (a)(1), 668, 1192.7, subd. (c)) and a prior "strike" under the Three Strikes Law (§§ 667, subd. (b)-(i), 668, 1170.12). At sentencing, the trial court imposed a total prison term of 80 years to life.
Subsequent undesignated statutory references are to the Penal Code.
Wesley now appeals on various grounds. First, he challenges several evidentiary rulings made by the trial court, arguing the court prejudicially erred by (1) allowing the prosecutor to refer to his prior offense as a "felony theft offense involving force and violence"; (2) allowing the prosecutor to question him about two prior uncharged incidents of violence; (3) admitting evidence suggesting he was a member of a criminal gang; and (4) admitting images showing Wesley firing an assault rifle at a shooting range months before the crime. Wesley also challenges the court's failure to provide a self-defense instruction to the jury and contends that prosecutorial misconduct precipitated various of the errors he alleges. Wesley next asserts the trial court's bias against him and the cumulative effect of all of the errors violated his rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution. Finally, Wesley argues that the trial court erred by imposing various fines, fees, and assessments without first determining his ability to pay.
We reject Wesley's appellate contentions and affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL BACKGROUND
Additional background information is set forth in the Discussion section of this opinion as it relates to Wesley's various claims.
A. Prosecution Case
The prosecution's key witness during the trial was Sheffah Chevis, Wesley's girlfriend, who was 18 years old when the crime occurred. Chevis was present when Charon was killed and initially told police investigators that Wesley shot Charon in self-defense. However, while awaiting her own trial for murder, Chevis's defense attorney negotiated a plea agreement with the District Attorney in exchange for her testimony. Chevis recanted the story she told the police in the days after the killing, and instead claimed that Wesley had premeditated the murder.
Wesley, who was 20 at the time of the crime, was the same age as Chevis's older brother Kniel and was close friends with Kniel when they were younger. Wesley first met Chevis when she was just 10 or 11 years old. Kniel and Wesley were no longer close when Chevis and Wesley started a romantic relationship in December 2016. Because Chevis did not think Kniel or her family would approve of the relationship, she kept it a secret. With just one exception, Chevis also kept the relationship from her friends.
Chevis had never had a serious boyfriend before Wesley, and testified at trial that she fell head over heels in love. Chevis had been a high-achieving student and involved member of her school community until she began her relationship with Wesley at the beginning of her final semester of high school. Once involved with Wesley, Chevis withdrew from her friends and abandoned plans to go to community college in Los Angeles where her father lived.
At trial, Chevis testified that she first saw what she believed was the murder weapon in the early hours of the morning on a day in late June 2017. Chevis spent the night at Wesley's house, which she described as an apartment behind his family home, when she woke up around 3:00 a.m. to see another woman standing over her and Wesley. Wesley grabbed the woman and dragged her outside. According to Chevis, Wesley held the woman and demanded that Chevis hit her in the face. Chevis complied and Wesley let the woman go. Wesley told Chevis the woman was a former girlfriend, turned stalker. After the altercation, Wesley pulled out the gun and told Chevis that if the woman returned, he would "blow this bitch's head off." Chevis did not know where the gun came from. After the incident, Wesley kept the weapon hidden under his bed.
Chevis testified she saw the weapon again on July 5, 2017. Chevis was with Wesley at his apartment when Wesley pulled out the gun while telling her Charon had killed another man the night before by poisoning him. Wesley showed Chevis a photo of himself, Charon, and another older man. Chevis did not recognize the older man and Wesley identified him as the poisoning victim. According to Chevis, Wesley told her he felt "[Charon] was out to get him next" and "if he took out that guy now he's going to take out [Wesley]." Wesley told Chevis that Charon was planning to kill Wesley, so Wesley had to kill Charon first. Chevis testified that Wesley spent the entire night fixated on Charon. Wesley also asked Chevis to search online for places to commit murder with a gun.
On July 10, 2017, after Chevis returned from a trip to Los Angeles to work with her father, she and Wesley got into a heated argument. After the argument, Chevis told her sister and Kniel about her relationship with Wesley. Kniel was angry, but Chevis convinced him not to confront Wesley. Chevis told her brother that she had seen Wesley's gun and she was afraid that Wesley would shoot Kniel if he confronted Wesley. Chevis also told Kniel about Wesley's plan to kill Charon.
The next day, July 11, 2017, Chevis agreed to meet Wesley before a job interview she had scheduled for 3:30 p.m. Chevis testified that she planned to end her relationship with Wesley then go to the interview. Instead, she drove to the interview with Wesley in his car. On the drive, Wesley called Charon and told Charon he was busy and couldn't hang out. After Chevis's job interview, Wesley asked her to drive him to the hospital so he could be seen by a doctor about his sore foot—Chevis testified Wesley kicked her car during their earlier fight hurting his foot, but that he was faking a serious injury to avoid work. While the couple were in the examination room, Wesley asked her to party with him that evening and again told her that he planned to kill Charon. At the hospital, Wesley asked Chevis to take a disposable mask and gloves.
After leaving the hospital, the couple drove to Wesley's apartment where Chevis cleaned out her car. At Wesley's direction, she emptied the trunk. Wesley retrieved the gun from his bedroom. The pair then went back outside and Wesley got a pair of shoes that he said "don't have soles" out of his car. Wesley left his cell phone in the passenger seat of his own car and put the shoes into the trunk of Chevis's car. Chevis and Wesley then drove to Charon's house and picked him up.
Chevis drove them to a liquor store, and Wesley and Charon went inside. Chevis testified that Wesley ran out of the store, got in the car, and then said he shouldn't have gone in because there were security cameras. Meanwhile, Charon purchased liquor from the store. They left and went to another store where Charon bought soda to drink with the liquor. They parked in Charon and Wesley's neighborhood, where they drank and smoked marijuana. They drove to Jack-in-the-Box and got some food, then drove to Ocean Beach. They continued drinking and smoking at the beach.
Video surveillance footage from the store shows Wesley hurriedly leaving as Charon makes the purchase.
In the early hours of the morning on July 12, 2017, they left Ocean Beach and Chevis begin driving back toward Wesley's neighborhood, heading east on Interstate 8. Charon was very intoxicated and passed out in the backseat of the car. Wesley then told Chevis to drive away from his neighborhood, north on Interstate 15. Wesley took a black jacket he had under his seat, which he had wrapped the gun, gloves and mask in, and put on the jacket and mask. Chevis continued north on Interstate 15 until Wesley told her to take an exit in Vista and directed her away from the freeway. They exited the freeway at about 3:00 a.m. During trial, Chevis diagramed the path Wesley directed her to drive until she parked at the location where Charon was killed.
Once parked, Wesley got out of the car, opened the trunk and changed into the shoes he placed there earlier. Wesley then walked to the driver side of the car and told Chevis he was going to shoot Charon while he was asleep in the backseat of the car. Chevis told him not to do that, then got out of the car and walked a few steps away. Wesley changed his plan, instead hitting Charon over the head with a ceramic vase that was in the car. Chevis heard Wesley "crack" Charon, who was still laying across the back seat of the car, a few times. Chevis testified Charon was startled awake and said "what the fuck?" Wesley pointed the gun at Charon and ordered him to get out of the car and walk across the street.
Chevis returned to the car. Sitting in the driver's seat she could hear the men argue. Wesley repeatedly accused Charon of "sneak dissing," which Chevis explained meant disrespecting him. Chevis heard Charon pleading for an explanation, apologizing, and begging for his life. Chevis then heard several shots. Chevis got out of the car, and Wesley frantically told her to drive away and jumped into the car's trunk. Chevis closed the trunk with Wesley inside and the doors that had been left open. Somewhere in the process, Chevis lost a red acrylic fingernail.
Chevis put Wesley's address into her phone's GPS map and started driving to his house. Wesley was yelling at her through the trunk, and when she told him she was driving to his house, he yelled not to go to his house and to drive to her house instead. She changed the address to her own on her phone's map and drove there.
Once at her house, Chevis let Wesley out of the trunk and Wesley grabbed everything in the car, including the gun, and shoved it into a bag Chevis had in the car. Wesley also found Charon's cell phone in the backseat of the car. Wesley told Chevis to take the bag into her house and to bring him a pair of Kniel's shorts. Chevis entered her house and saw her mother on the couch. Her mother woke, but was groggy and did not confront Chevis. Chevis quickly grabbed a pair of her brother's shorts from the laundry room, dropped the bag with the gun and other evidence on her bedroom floor, and then exited the house and gave the shorts to Wesley.
Chevis then drove to Wesley's house. Once there, around 5:00 a.m., Wesley told Chevis that he thought his parole officer was outside and directed Chevis not to stop. Chevis then realized her car was almost out of gas, but that she left her payment card at her house. According to Chevis, Wesley was angry she did not have her card, and threatened her life, stating "don't make me turn devil on you and kill you next." Chevis then drove to a nearby gas station and used Wesley's payment card to purchase gas. They left the gas station and drove to Mission Bay Park where Wesley crushed Charon's cell phone and threw it into the bay. The pair then returned to Wesley's house, where at about 6:00 a.m. a neighbor's security camera captured Wesley removing his socks and putting them in Chevis's car, Wesley and Chevis embracing and kissing, and then Chevis leaving alone. Chevis returned home and went to sleep.
Meanwhile, around 5:20 a.m., a quarry worker on his way to work noticed Charon laying on the side of a remote section of Twin Oaks Valley Road in Vista. Charon appeared dead; he was not wearing a shirt, he was very bloody, and his body was straddling the curb, partially leaning up against a fence. The quarry worker called 911. The San Diego County Sheriff's Department responded to the call and initiated an investigation. Sheriff's deputies found two .40 caliber shell casings near Charon's right foot, blood droplets, a Jack-in-the-Box wrapper, a blue hat with an L.A. Dodger logo, and a red acrylic fingernail nearby. Charon had a California identification card and time-stamped receipts from the liquor store in his pocket.
After parting with Chevis, Wesley told his family that Charon was missing, and that he believed that the Mexican cartel had captured or possibly killed Charon. Wesley called Charon's cousin, Anthony Harris, and told him the same story. Harris was a close family friend and had dated Wesley's older sister. Later in the day, Wesley sent a text message to Harris that said: "Like WTF is Vista. That's all Mexicans. They got a gang called Vista Home Boys and some mafia ties." A second message to Harris stated "I feel like [Charon] did a play with the cartel or Mexican mafia and got fronted some byrstal and ended up in debt because that's the only thing he ever kept away from me that he fucked around on the low to so I feel like it could have been that because why would [Charon] be in Vista. I know he didn't take no bus out there or nobody dropped him off. So it's like it's sounding like a kidnapping."
Harris drove to Wesley's home that afternoon, where Wesley again repeated the story that Charon was mixed up with the Mexican cartel. Wesley's sister contacted hospitals and jails throughout the day to try to locate Charon. Wesley told his family and friends that he tried calling Charon but could not reach him, once even calling Charon in front of his sister. Wesley's sister told police investigators that Wesley had told her at one point during the day that he received an accidental call from Charon and he could hear Charon pleading for help and men speaking Spanish in the background. Wesley's sister turned on the news and saw a report about a body being discovered in Vista. She recognized Charon's blue L.A. Dodger baseball cap in the footage and called the police.
Wesley used his phone to conduct an internet search at 11:01 a.m. for "Quality car rental." In a second search at 11:02 a.m., he inquired about "Quality car connection." Wesley conducted additional searches at 11:49 for "Vista homicide," and 11:50 a.m. for "man's body found on side of Vista road" and "homicide investigation near Vista."
Chevis, meanwhile, woke up around noon and called her close friend, Kaitlyn. Chevis had previously told Kaitlyn about Wesley's plan, and when Chevis called Kaitlyn on July 12, 2017, Chevis told her friend that Wesley had committed the murder. Chevis and Kniel then took her car to the carwash. Around 4:00 p.m., Chevis's mother, who ran a daycare at their home, said a parent picking up their child saw an undercover police officer looking at Chevis's car. Unbeknownst to Chevis, the police investigating Charon's death had visited the liquor store identified by the receipt on Charon's body. Video surveillance footage from the store showed the two men inside and Chevis's car in the parking lot. After her mother's comment, Chevis called Wesley who accused her of causing the police to suspect her involvement.
Chevis was terrified and confided in Kniel about the murder, asking him to help her. Kniel cleaned the murder weapon with alcohol swabs, and then at about 9:00 p.m. he and Chevis took cleaning supplies from their mother's daycare to clean Chevis's car. As they headed to the car, they were approached by police with guns drawn. Chevis was arrested. Kniel told the police the gun was in Chevis's bedroom and that he had cleaned the gun to protect his sister. The police took possession of the weapon and a forensics specialist determined that spent bullet casings found at the scene of the murder were fired by the gun. The police also took Chevis's car for analysis and found a pair of Adidas shoes, gray sweatpants with blood on the leg that appeared to be the same pants Wesley had on in the liquor store video, a blue sweatshirt that matched what Charon had on in the liquor store video, two latex gloves turned inside out, batting gloves, a ceramic vase with a crack in it, and a set of keys. There was blood inside the rear passenger handle near where Charon was seated, and blood on the metal doorframe.
After her arrest, Chevis was taken to the sheriff's station. The intake officer noticed that one of Chevis's red acrylic fingernails was broken off. Chevis was interviewed and initially told the investigating officers that Wesley and Charon got into a fight and that Wesley shot Charon in self-defense. She told the officers she had never seen the gun before the fight and that she did not see the actual shooting. At trial, Chevis testified that she lied in her initial interviews to protect Wesley.
After several hours of surveillance at Wesley's house, around 10:30 p.m., sheriff deputies observed Wesley leave and arrested him. Wesley was taken to the sheriff's station and interviewed. He denied knowing Chevis or being with Chevis and Charon the night before, even though the interviewing officers showed him still photographs of him with Charon in the liquor store from the store's surveillance video. Wesley told the officers that his friend took him to the hospital for an ankle injury on July 11, where he stayed until 11:00 p.m. and then went home, where he stayed throughout the night.
Chevis and Wesley were placed in adjacent holding cells and video of their interactions through the glass separating them was played for the jury. During her testimony, Chevis described the interaction for the jury. She said Wesley was telling her not to tell the truth and to cover for him, that he asked her if she got rid of the evidence, and that she told him she was arrested before she could dispose of the gun.
The district attorney charged both Chevis and Wesley with murder. After Chevis's preliminary hearing, Chevis agreed to speak with the prosecutor in exchange for immunity for her statements. After this initial interview, Chevis entered into a plea agreement with the district attorney's office in which she agreed to testify against Wesley at trial. In exchange for her testimony, the district attorney allowed Chevis to plead guilty to voluntary manslaughter and stipulated to a sentencing range of the middle term of six years in prison or the upper term of 11 years, to be decided by the trial judge after Wesley's trial. B. Defense Case
Wesley took the stand in his own defense and provided a different version of events than the one described by Chevis. He testified that after partying together at his house and then at Sunset Cliffs in Ocean Beach, he, Chevis, and Charon decided to drive to North Hollywood by way of Interstate 15 to see Charon's cousin, Harris. Wesley stated that around 4:00 a.m., Chevis, who was driving, said she was too tired to go on. They were in Vista, where Chevis took the nearest exit and eventually parked in a deserted area, avoiding homes and businesses. The three continued to party, drink, and smoke marijuana. Chevis rolled a blunt, they hotboxed the car, and "passed the drink around." Wesley testified that all three were heavily intoxicated.
Wesley testified that prior to his death, Charon had been selling drugs and needed money as a result. Wesley offered to ask for money from his child's mother, Javonna Estes, to help Charon. To get the money, Wesley told Estes that his own life was in danger. According to Wesley, while he was parked and partying with Charon and Chevis off the exit in Vista, Charon questioned Wesley about the money and insulted Estes. Wesley and Charon then started arguing, and Charon, who was sitting in the backseat of the car, hit Wesley, seated in the front passenger seat, in the back of his head. Wesley returned the punch, and Charon started bleeding from his face. Charon then got out of the car and continued to antagonize Wesley.
According to Wesley, the two men started brawling. Charon reached for a gun in his waistband, and Wesley knocked the gun from his hand. Wesley testified that Charon tripped on a curb and landed on a nearby gate, and then Wesley heard gun shots. Wesley then saw that Charon was shot and heard Chevis yell, "let's go, let's go, let's go!" Wesley jumped into the passenger seat of the car, and Chevis drove them away from the scene to Wesley's house. When they arrived around 5:00 a.m., Wesley went inside and asked his sister for a cigarette. Chevis then returned to his house about an hour later when a neighbor's security camera captured the pair kissing. Wesley testified he told Chevis he could never see her again, which led to a final moment of affection.
Chevis then drove away and Wesley went back inside. Wesley testified he could not bring himself to tell his family the truth, that Chevis had killed Charon, because Charon was like a family member. Instead, he told his mother and other family members that Charon was missing and that Wesley thought he was mixed up with the Mexican cartel in Vista. Wesley then encouraged his sister to call the police and tell them that Charon had gone missing. Wesley testified he called Harris and told him the same story. During trial, Wesley said that at the time he was arrested he was "highly intoxicated" and lied to the police to protect Chevis.
Several character witnesses also testified on Wesley's behalf. His wife, who Wesley married while he was previously incarcerated and who he had separated from while he was still in prison, testified Wesley had never been violent, rude or demeaning towards her during their relationship. Another former girlfriend, who dated Wesley from January to May 2017, testified that she had known Wesley and Charon for years, and that once when she picked up Charon he was carrying a gun in the waistband of his pants. She also said she was the woman who Chevis testified came into Wesley's bedroom in the early morning hours in late June. Contrary to Chevis's version of events, the woman testified that Wesley was not involved in the physical altercation between her and Chevis. Rather, Chevis attacked her and later also attacked her on social media.
The woman also testified that Wesley always treated her well, though she was not aware that he was having a relationship with Chevis at the same time they were dating. The woman did know that Wesley was married and separated, and that Wesley had recently been in a relationship with Estes and that Estes was pregnant with his child.
Finally, the defense called Wesley's youngest brother, Raesean Wesley, as a witness on his behalf. Raesean refuted Chevis's testimony concerning Wesley's purported motive for killing Charon as revenge for the death of his friend, Bobby Anderson. Raesean testified that he had never heard Wesley say that Charon was responsible for Anderson's death. Rather before Charon's murder, Wesley was aware that the cause of Anderson's death was a fentanyl overdose. C. Rebuttal, Verdict and Sentencing
After Wesley's testimony that Chevis was the shooter, the district attorney recalled Chevis and one of the investigating detectives, George Crysler, to the stand. Chevis denied she was the shooter and repeated that she had no experience handling a gun. Crysler described the recording of a phone call Chevis made to Raesean from jail on July 14, 2017. Crysler testified that during the call, Chevis told Raesean that she went along with Wesley's request to put all of the evidence in her car because he threatened her life if she didn't comply. Chevis also asked Raesean if he knew about Wesley's other relationships and told Raesean that if she had known, she never would have started dating Wesley and been in this situation. Chevis asked Raesean if he knew about the death of someone close to their family. Raesean said he wasn't aware of any death, and Chevis responded that Wesley was a psychopath because then there was no motive for him to kill Charon.
After the conclusion of evidence and closing arguments, the jury returned its verdict, convicting Wesley on all counts: First degree murder (§ 187, subd. (a)); possession of a firearm by a felon (§ 29800, subd. (a)(1)); owning/possessing ammunition/firearm as a person prohibited (§ 30305, subd. (a)(1)); and personal discharge of a firearm that caused great bodily injury and death (§ 12022.53, subd. (d)). Thereafter, Wesley waived his right to a jury trial on the prior conviction allegations and admitted them.
The court sentenced Wesley to prison for a term of 80 years to life, consisting of 25 years to life for first degree murder, doubled for the prior strike; 25 years to life for the firearm allegation, to run consecutively to the term imposed for the murder conviction, plus a consecutive term of five years for Wesley's prior serious felony conviction. The court stayed the sentence on the other charges and Wesley's prior prison term true finding under section 654. The court also imposed a court operations assessment of $120 (Pen. Code, § 1465.8), a criminal conviction assessment of $90 (Gov. Code, § 70373), a booking fee of $154 (Gov. Code, § 29550), and a $10,000 restitution fine (Pen. Code, § 1202.4, subd. (b)).
DISCUSSION
I
Evidence of Prior Felony Conviction
Wesley first argues that the court prejudicially erred by allowing the prosecutor to refer to his prior conviction as a felony theft offense involving force or violence. The Attorney General responds that the terminology was sanitized and not unduly prejudicial, and properly admitted to address Wesley's credibility after he took the stand in his own defense. We agree with the Attorney General and conclude the evidence was properly admitted. A. Additional Background
Prior to trial, Wesley moved to sever the charges of felon in possession of a firearm and possession of a firearm by a person prohibited so that his prior felony conviction would not be placed before the jury. The people moved to admit records of Wesley's prior felony to prove those charges, to show intent, and to impeach Wesley if he testified.
At a pretrial conference, the trial court denied Wesley's motion, leading to the consideration of the prior felony evidence. The court rejected the prosecution's argument that documentation of Wesley's prior conviction could be admitted under Evidence Code section 1101, subdivision (b) as evidence of his intent to commit murder. The parties agreed to prepare a stipulation that Wesley had been convicted of a felony that satisfied that element of the firearm possession charges. The court ruled that the prior conviction could be used to impeach Wesley's testimony and left open the question of how the offense would be characterized during trial, suggesting that the parties should reach an agreement.
During his direct examination, Wesley's attorney defensively raised the fact that Wesley was a convicted felon. Defense counsel asked, "When you were a teenager, did you get into some type of trouble?" Wesley responded that he made a mistake when he was 17 and pleaded guilty to take responsibility for the crime he admittedly committed. After the conclusion of the direct examination, in which Wesley asserted Chevis was the shooter, the prosecution moved to admit evidence concerning the underlying facts of the prior crime. The prosecutor argued Wesley characterized the prior offense "as a felony [that Wesley] was magnanimous enough to admit," when the truth was that the crime was a violent theft of a gun store and Wesley was caught red handed fleeing from the police.
The probation report submitted for Wesley's sentencing describes the offense, stating that Wesley and two other men robbed a gun store in El Cajon at gun point. They were apprehended while fleeing from the scene in a car. Stolen weapons, face masks, a revolver, and a replica gun were found in the car and the men admitted to the arresting police that they committed the crime.
The court agreed with the prosecutor that the characterization of the crime by Wesley was inaccurate and stated its tentative decision was to allow the underlying facts to impeach Wesley. The court noted that Wesley's credibility was critical, especially since he was for the first time accusing Chevis of killing Charon. Defense counsel argued vehemently that it was improper for the court to revisit its in limine ruling, which he contended precluded any evidence of the details of the crime. After considering the parties' arguments, the court ruled that the prosecution could inquire whether Wesley had "been convicted of a felony [theft offense] involving force and violence." The court rejected the prosecution's request to impeach Wesley's credibility with all of the facts underlying the offense. The court also noted defense counsel's mischaracterization of its prior ruling, clarifying that it ruled the prosecution would be allowed to impeach Wesley's credibility with the prior conviction.
The entire discussion and ruling occurred outside the presence of the jury.
During cross-examination, the subject of Wesley's prior conviction came up as a result of Wesley's own testimony. In response to the prosecutor's question whether Wesley ever "obtained a firearm from anyone," Wesley responded that in his "prior conviction as a juvenile, I was in a case [that] I had to do with that." The prosecutor then asked Wesley if that "was a felony in which you made a threat of force or violence upon another individual?" Wesley responded he did not think he "made a threat" but that the "other is true." The prosecutor followed with "let me rephrase. It was a felony in which you used force or violence on another individual?" Wesley responded, "I never touched the individual. But, I mean, if you want to say force or violence." No further questions about the prior offense were posed. B. Legal Standards
Character evidence, also described as evidence of propensity to engage in a type of conduct, is generally inadmissible to prove a person's conduct on a specified occasion. (Evid. Code, § 1101, subd. (a); People v. Villatoro (2012) 54 Cal.4th 1152, 1159 (Villatoro).) This general rule against admitting propensity evidence to prove conduct, however, "does not prohibit admission of specific acts of misconduct to establish a material fact like intent, common design or plan, or identity (§ 1101, subd. (b)), and does not affect the admissibility of evidence regarding the credibility of a witness (id., subd. (c))." (Villatoro, at p. 1159.)
A witness's credibility, including that of a defendant who elects to testify, may be impeached by evidence of a prior felony conviction which "necessarily involves moral turpitude, even if the immoral trait is one other than dishonesty." (People v. Castro (1985) 38 Cal.3d 301, 306 (Castro); People v. Feaster (2002) 102 Cal.App.4th 1084, 1091.) Moral turpitude is defined as the " 'readiness to do evil,' " and does not depend on dishonesty being an element of the crime. (Castro, at pp. 314-315; Feaster, at p. 1091.)
"California courts have repeatedly held that prior convictions for burglary, robbery, and other various theft-related crimes are probative on the issue of the defendant's credibility. [Citations.]" (People v. Mendoza (2000) 78 Cal.App.4th 918, 925.) "[I]t is beyond dispute that robbery necessarily involves moral turpitude or the ' "readiness to do evil," ' and evinces a character trait which can reasonably be characterized as ' "immoral." ' [Citation.]" (People v. Stewart (1985) 171 Cal.App.3d 59, 64.)
The admission of a prior felony conviction of moral turpitude to impeach a defendant's trial testimony is subject to the court's exercise of discretion under Evidence Code section 352. (People v. Green (1995) 34 Cal.App.4th 165, 182.) In addition, a trial court may exercise its discretion to sanitize the descriptions of prior convictions where the nature of the unsanitized prior convictions would be more prejudicial than probative of the witness's credibility. (Castro, supra, 38 Cal.3d at pp. 305-306, 319; People v. Massey (1987) 192 Cal.App.3d 819, 825.) The trial court's rulings are reviewed for abuse of discretion, that is, whether the court exceeded the bounds of reason. (People v. Clair (1992) 2 Cal.4th 629, 655.) C. Analysis
On appeal, Wesley characterizes the court's ruling as revenge for his testimony that Charon attacked him and that Chevis killed Charon to save Wesley's life. Wesley focuses on the argument his counsel made during trial, which insinuated that the court's decision was based on Wesley's revelation during trial that Chevis was the shooter, and not the court's determination that the prior offense could be used to impeach Wesley's credibility. During the discussion about allowing the prior felony, Wesley's counsel asserted the court's decision to allow the prosecutor to question Wesley about the nature of his prior offense "was that if my client open[ed] his mouth and discussed anyone other than himself [as the shooter] on the stand [the prior conviction] was going to come in?"
The court rejected this characterization of its ruling, but did express its surprise at the previously undisclosed defense theory, stating: "I have to evaluate the totality of his information that he provided. The totality of the questions that you elicited from him. The nature in which he meandered through things disparaging people who can't even testify here in court because their voice has been silenced. That is part of the evaluation. You make your decisions. He makes his decisions. And it's not fair for the jury to evaluate much of the information that was one-sidedly provided against the person who no longer walks among us—from your client's own mouth."
The court made clear though that its ruling was based on allowing the prosecution to impeach Wesley's credibility, which was unquestionably important in the case. The court initiated its ruling by stating that the admission of the prior conviction was reasonable because Wesley arguably "left the jury with a false sense of what it was that took place at the time of the actual murder and . . . the facts of the underlying prior would help the jury understand better an assessment of the credibility of all the witnesses who have testified, which is always at stake." The court correctly noted the evidence "has to do with his truthfulness and credibility, which is always the assessment for the jury to make." Significantly, after a short break before Wesley's testimony resumed, the court pulled back from its initial decision to allow specific details of the prior offense, settling on allowing the prosecutor to ask only if Wesley had "been convicted of a felony [theft offense] involving force and violence."
Wesley argues that the trial court changed its ruling during trial and that the use of the word "violence" was so prejudicial that allowing the circumscribed questions was an abuse of discretion. To support this contention, he relies on People v. Hall (2018) 23 Cal.App.5th 576 (Hall). The circumstances in Hall, which led to reversal on appeal after the court allowed the prosecutor to ask detailed questions of the defendant about a prior misdemeanor conviction, are far different from the narrow, sanitized questions allowed here. The defendant in Hall was charged with the stabbing murder of an acquaintance and, like Wesley, proclaimed his innocence throughout the investigation and trial. (Id. at pp. 582-584.) During his initial interview after being taken into police custody, the defendant lied to the investigating officers about knowing the victim. The defendant also professed to be a nonviolent person, telling the officers, among other similar statements, "I don't like people that's into violence and I ain't got no violent record at all." (Id. at p. 582.)
Prior to the jury trial, the trial court ruled that the prosecution would be permitted to question the defendant about two prior felony convictions for robbery if he took the stand. (Hall, supra, 23 Cal.App.5th at p. 586.) However, the court ruled that a prior guilty plea for misdemeanor possession of a concealed knife could not be used to challenge the defendant's credibility unless the defendant testified in line with his statements to the police in his initial interview that he did not have a propensity for violence. (Id. at p. 587.) The trial court concluded that because the facts underlying that offense—which involved a knife of similar size to that used in the murder and threats of violence by the defendant, were similar to those of the crime at hand—the potential for prejudice substantially outweighed any usefulness of the evidence to impeach the defendant. (Id. at p. 590.)
The defendant took the stand and was questioned about his false statement to the police that he did not know the victim. The defendant stated he lied to the police because he was afraid of retribution by other people who were present the night of the murder. (Hall, supra, 23 Cal.App.5th at p. 587.) After the defendant's testimony, the prosecutor moved again to admit evidence of the prior misdemeanor conviction. The court reversed its earlier ruling, finding that the defendant had opened the door to the evidence by testifying that he was "deterred by fear" from the telling the truth. (Hall, at p. 589.) The trial court interpreted the phrase as implying that the defendant was a "peaceful, nonaggressive person," i.e., a nonviolent individual, and agreed the statement opened the door to the underlying facts of the prior misdemeanor conviction. (Ibid.)
The Court of Appeal rejected this interpretation of the defendant's testimony, concluding the trial court had both mischaracterized its prior ruling precluding the evidence as nonfinal, and misconstrued the defendant's testimony as asserting he was peaceful. The appellate court held that the court's initial ruling that the evidence was highly prejudicial and should be excluded under Evidence Code section 352 was correct. (Hall, supra, 23 Cal.App.5th at p. 591.) Further, contrary to the trial court's midtrial ruling, the defendant's explanation for his untruthfulness to the police, that he was deterred by fear, were not the same statements that the trial court determined would open the door for the prior misdemeanor conviction to be admitted. Rather, the defense had carefully avoided such testimony. Thus, the court abused its discretion by reversing course and allowing the prosecution to introduce the conviction to show the defendant's propensity for violence. In addition, although the defendant's credibility was at issue, no new information was elicited during trial that supported the trial court's decision to reverse its earlier ruling that the conviction was highly prejudicial and properly excluded under [Evidence Code] section 352. (Ibid.)
The court explained that the "[d]efendant's character for violence was not relevant to any legitimate issue at trial, and he did not put his character for peacefulness at issue. In general, evidence of a defendant's character or a trait of his character—that is, his propensity or disposition to engage in a certain type of conduct—is not admissible to prove his conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) However, when a defendant offers evidence of his good character 'to prove his conduct in conformity with such character or trait of character,' the prosecution may offer evidence to rebut it. (Evid. Code, § 1102, subds. (a), (b).) . . . But in this case, defendant did not introduce evidence putting his character for peacefulness in issue. That evidence was introduced by the prosecution in its case-in-chief by way of defendant's taped statement to police. . . . Evidence Code section 1102 prevents the prosecution from knocking down a straw man of its own making." (Hall, supra, 23 Cal.App.5th at pp. 591-592.)
Unlike Hall, in this case the court did not make a final ruling that the prior conviction could not be admitted. To the contrary, the court ruled clearly that the prior conviction could be used to impeach Wesley's testimony, leaving open only the question of how the offense would be characterized during trial. The court did not reverse a prior conclusion under Evidence Code section 352. The record shows the court's final decision, to allow the prosecutor to ask Wesley if he had pleaded guilty to a "violent theft offense," involved carefully weighing the risk of prejudice of admitting the crime against the value of the testimony to assess Wesley's credibility. The court's determination to allow the questions did not fall outside the bounds of reason and was not an abuse of its wide discretion.
We also note that the prosecution explained to the jury during closing argument that the existence of the felony conviction could be used to assess Wesley's credibility, but did not suggest it could be used to infer that because he committed a prior offense he also killed Charon.
II
Prior Uncharged Acts of Violence
Wesley next asserts that the court prejudicially erred by allowing the prosecutor to question him about two additional prior acts of violence for which he was never charged. Specifically, Wesley contends that the prosecution circumvented the rule that prohibits propensity evidence by posing questions to Wesley about a drive-by shooting he was alleged to have been involved in and a group beating of another prisoner that occurred while Wesley awaited trial. Wesley also asserts the questions were improper because the prosecution failed to provide any evidentiary foundation for them. The Attorney General responds that like Wesley's prior conviction, the two uncharged offenses were proper areas of questioning to allow the jury to assess Wesley's credibility. We agree. A. Additional Background
As with Wesley's felony conviction, the prosecution filed a motion in limine before trial seeking to admit two prior uncharged acts of misconduct by Wesley; a drive-by shooting and an inmate beating. The prosecutor's trial brief asserted the acts were relevant to impeach Wesley if he took the stand and outlined some details of the underlying events. The brief alleged that on June 6, 2014, Wesley and a codefendant in the case resulting in the prior felony conviction, Mckeyon Menefee, committed a drive-by shooting on Wightman Street in San Diego. According to Menefee, Wesley fired multiple rounds at a group of people in retaliation for being shot at on a previous occasion. The brief asserted Wesley also participated in the beating of another jail inmate while awaiting trial in this case. According to the prosecution, the victim identified Wesley as one of four inmates who attacked him, resulting in a 2- or 3-inch forehead laceration that required 6 stitches, and a fractured nose. As to both incidents, the prosecutor represented to the court that charges were not filed because of problems with witness cooperation.
At the hearing on the motions, the prosecutor asserted he had a good faith basis to inquire about the incidents if they became relevant for impeachment purposes. Wesley's counsel objected on the grounds the prior acts were never charged, were remote, and were also based on hearsay. Defense counsel asserted that Menefee's statements were unreliable because he gave them to try and help his brother, another suspect in the crime. Wesley's counsel also asserted he had a witness who lived on the same cell block as Wesley, who would deny Wesley's participation in the beating. The trial court reserved its ruling and stated it would evaluate the prosecution's request in light of Wesley's testimony during trial.
After Wesley's direct examination, the prosecutor renewed his motion to impeach Wesley with the two prior bad acts. Following the lengthy discussion concerning the admissibility of Wesley's prior felony conviction, the prosecutor asked if the trial court would allow him to raise the two prior uncharged acts. The trial court acknowledged the defense objection to the evidence and ruled that under the totality of the evidence, the prior uncharged acts were "fair game."
On cross-examination, the prosecutor asked Wesley whether he and Menefee "committed a drive-by shooting on Wightman Street in San Diego?" Wesley responded the allegation was not true and that he was "never charged with that crime." Wesley responded that he didn't recall if he was targeted in a previous shooting or if he was close to Menefee, who he described as "an older male I barely knew at the time," stating he "met Menefee through Facebook" and that he "was a rapper just like me. . . . I have no ties to this man." The prosecutor ticked through several facts about the drive-by obtained from Menefee and Wesley denied each allegation.
The prosecutor then asked Wesley if he considered himself "a person who would commit a crime of violence with a handgun," to which Wesley responded "no." The prosecutor then asked if he considered himself "a violent individual?" Wesley responded, "to me, as far as my knowledge, no. But that goes on to what anybody else thinks. I mean, people have different opinions." The prosecutor moved to a series of 12 detailed questions about the inmate beating he alleged was perpetrated in part by Wesley. Wesley repeatedly denied any involvement, and responded to the prosecutor's questions by asking if video surveillance footage of the incident existed. B. Legal Standard
As noted in the prior section, the restriction "on the use of evidence of specific instances of prior misconduct" contained in Evidence Code section 1101, subdivision (a) "do[es] not apply to evidence offered to support or attack the credibility of a witness." (People v. Kennedy (2005) 36 Cal.4th 595, 620, disapproved on other grounds by People v. Williams (2010) 49 Cal.4th 405; Evid. Code, § 1101, subd. (c).) In addition to felony convictions, "[a] witness may be impeached with any prior conduct involving moral turpitude whether or not it resulted in a felony conviction, subject to the trial court's exercise of discretion under Evidence Code section 352." (People v. Clark (2011) 52 Cal.4th 856, 931 (Clark).) "When a defense witness gives character testimony, the prosecutor may inquire of the witness whether he or she has heard of acts or conduct by the defendant inconsistent with that testimony, so long as the prosecutor has a good faith belief that such acts or conduct actually took place." (People v. Barnett (1998) 17 Cal.4th 1044, 1170 (Barnett).)
These rules extend to a testifying defendant, who has no right to cloak himself in a false aura of credibility. (Evid. Code, § 1101, subd. (c); see e.g., People v. Chavez (2000) 84 Cal.App.4th 25, 28.) "When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them." (People v. Cooper (1991) 53 Cal.3d 771, 822.)
"Additional considerations[, however,] apply when the proffered impeachment evidence is misconduct other than a prior conviction. This is because such misconduct generally is less probative of immoral character or dishonesty and may involve problems involving proof, unfair surprise, and the evaluation of moral turpitude. [Citation.] As we have advised, 'courts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value.' [Citation.]" (Clark, supra, 52 Cal.4th at pp. 931-932.) In such situations, "the latitude [Evid. Code] section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." (People v. Wheeler (1992) 4 Cal.4th 284, 296.) A reviewing court ordinarily will uphold the trial court's exercise of discretion under Evidence Code section 352. (Clark, at p. 932.) C. Analysis
Although he concedes the prosecutor's questions concerning the two alleged prior bad acts were not evidence, Wesley argues (1) the questions were barred by Evidence Code section 1101, subdivision (a), (2) the questions were unduly prejudicial under Evidence Code section 352, (3) that the prosecution lacked an adequate foundation to ask the questions, and (4) that the questions were tantamount to evidence and violated Wesley's constitutional right to confront the witnesses against him.
As an initial matter, Wesley's assertion that the questions were barred by Evidence Code section 1101, subdivision (a) is plainly wrong. The prosecution sought to introduce the evidence concerning these two prior acts for the purpose of challenging Wesley's credibility, not as propensity evidence. By his testimony, Wesley's credibility became an important consideration for the jury. Just as the prior felony conviction was appropriately considered by the court as a method of impeachment, so were these two prior uncharged offenses. (See, e.g. People v. Cooper (1991) 53 Cal.3d 771, 822 ["Although a defendant cannot be compelled to be a witness against himself, if he takes the stand and makes a general denial of the crime with which he is charged, the permissible scope of cross-examination is 'very wide.' "].)
With respect to Wesley's assertion that the trial court abused its discretion by concluding the evidence was more probative than prejudicial under Evidence Code section 352, the question is a closer one. As discussed, "[w]hen determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify." (Clark, supra, 52 Cal.4th at p. 931.) " '[C]ourts may and should consider with particular care whether the admission of such evidence might involve undue time, confusion, or prejudice which outweighs its probative value." (Id. at p. 932.) "Because the court's discretion to admit or exclude impeachment evidence 'is as broad as necessary to deal with the great variety of factual situations in which the issue arises' [citation], a reviewing court ordinarily will uphold the trial court's exercise of discretion." (Ibid.)
Before trial, the court was presented with arguments in favor and against permitting evidence about the two uncharged incidents during litigation of the prosecution's motion in limine. The court rejected the prosecutor's argument that the evidence was admissible under section 1101, subdivision (b) to show intent. However, the trial court reserved its judgment on determining the admissibility of the acts for purposes of impeaching Wesley if he took the stand.
Once Wesley took the stand, the prosecution renewed its request to question him about the prior conviction and these two prior bad acts in order to impeach Wesley's credibility. The court and the parties primarily argued over the prior conviction, during which the court expressed its clear understanding of the probative value of the evidence, its potential for harm, and its responsibility to weigh the competing criteria. We cannot say that the court's decision to allow the questions, which took a relatively brief amount of time, exceeded the bounds of reason. Allowing the prosecutor to explore whether Wesley participated in these crimes was directly relevant to his credibility. Further, the questioning that occurred was not excessive. Wesley has not shown the court abused its discretion by allowing the prosecution to question him about this alleged misconduct.
We also reject Wesley's contention that the questions violated his right of confrontation under the Sixth Amendment to the U.S. Constitution. As the Attorney General points out, Wesley did not object to the testimony on this ground in the trial court and has, thus, forfeited his challenge on appeal. (People v. Visciotti (1992) 2 Cal.4th 1, 51-52 (Visciotti) [absent an objection, even if the prosecutor's questions were improper, "the failure to object bars reversal on that ground"].) Wesley's related claim that the prosecutor's questions amounted to improper "vouching" of facts insinuated by the questions is similarly forfeited.
Even if the confrontation clause argument had not been forfeited, we would not reverse. Leading questions "are not improper when asked in good faith of a presumptively hostile witness on cross-examination." (Visciotti, supra, 2 Cal.4th at p. 52.) Despite Wesley's denial of their truth, and contrary to his assertion on appeal that the questions lacked an adequate foundation, the prosecutor represented that his questions were based on information, including police reports and witness statements, that were disclosed to the defense. Wesley did not attempt to refute the alleged prior bad acts with any additional evidence and the prosecutor's assertion was sufficient foundation for the questions. (See Barnett, supra, 17 Cal.4th at p. 1170.) Accordingly, leading questions concerning both incidents were proper and did not violate Wesley's right to confrontation.
In his opening brief, Wesley asserts that no credible evidence existed concerning the alleged misconduct. However, during the discussion in which the prosecutor asserted he had disclosed the documents that contained the relevant factual information, Wesley's defense counsel did not dispute this fact.
Further, the jury was specifically instructed that "nothing the attorneys say is evidence. In their opening statements and during closing arguments, the attorneys discuss the case, but their remarks are not evidence. Their questions are not evidence. Only the witnesses' answers are evidence. The attorneys' questions are significant only if they helped you to understand the witnesses' answers. Do not assume that something is true just because one of the attorneys asked a question that suggested it was true." This instruction mitigated any prejudice resulting from the questions.
Wesley's reliance on Douglas v. Alabama (1965) 380 U.S. 415 (Douglas) and People v. Murillo (2014) 231 Cal.App.4th 448 (Murillo) is misplaced. Both cases involved questions to percipient witnesses in criminal trials, not direct questions posed to the defendant himself concerning his own conduct. In Douglas, the defendant and another man, Loyd, were charged with assault with intent to commit murder. (Douglas, at p. 416.) Loyd confessed to the crime and was convicted first at a separate trial. (Ibid.) Because Loyd was appealing his conviction, under the advice of his counsel, Loyd, citing his Fifth Amendment rights, refused to answer any questions when called as a witness at the defendant's trial. (Ibid.) The questions included the prosecutor reading Loyd's signed confession implicating the defendant. (Id. at pp. 416-417.) The U.S. Supreme Court held that the tactic constituted a violation of the defendant's right to confront the witnesses against him under the Sixth Amendment. (Id. at p. 419.)
Similarly, in Murillo, a percipient witness, who had identified the defendant during the police investigation as the shooter in a drive-by that killed two people, refused to answer any questions during the defendant's trial. (Murillo, supra, 231 Cal.App.4th at pp. 451-452.) The prosecutor was permitted, over the defense's objections, to ask the witness over 100 leading questions about his prior identification of the defendant. (Ibid.) Citing Douglas, the Court of Appeal held that the questioning was a violation of the defendant's Sixth Amendment right to confront the witnesses against him. (Id. at pp. 456-458.) These cases are not dispositive of the issues here, which do not implicate Wesley's Sixth Amendment rights and where Wesley himself had the ability to (and did) refute each question posed by the prosecutor concerning the prior acts.
Finally, even if it was an abuse of discretion for the court to allow these questions, we conclude the error was harmless. As the Attorney General notes, the questions cover just three pages of the transcript, while Wesley's testimony spans over 150 pages. Although the allegations that Wesley had previously participated in a drive-by shooting and inmate beating are serious, Wesley straightforwardly denied them. In addition, the testimony supporting the jury's conviction was substantial. Chevis testified as to the motive, planning, and conduct both the night of the killing and in the day that followed. Other physical evidence, witness testimony, and police reports from the time of the arrests gave additional credibility to Chevis's version of events. Specifically, the cracked vase found in Chevis's car, Chevis's testimony that she had no experience firing a gun and evidence showing Wesley did, Wesley's changing of shoes and clothes, the story Wesley concocted about Charon's involvement with the Mexican cartel that he told several family members, and the video footage from Chevis's and Wesley's jail cells showing Wesley threatening Chevis to keep quiet. Given this evidence, we cannot say it is reasonably probable the verdict would have been favorable to the defendant without these questions. (See People v. Livingston (2012) 53 Cal.4th 1145, 1163 [Citing People v. Watson (1956) 46 Cal.2d 818, 836].)
III
Evidence Suggestive of Gang Affiliation
Wesley next argues that the court erred by allowing the prosecutor to question him about his text messages in which he replaced every "C" with a "K," suggesting gang affiliation, and after ruling in limine that gang evidence was precluded. The Attorney General responds that the evidence at issue was properly admitted because it did not concern Wesley's gang affiliation. Rather, the evidence was required to explain the admissible text messages, and was relevant to Wesley's affinity for gang culture and his desire to act like a gangster. A. Additional Background
Before trial, Wesley's defense counsel filed a motion in limine to exclude "any gang evidence." At the pretrial hearing, the prosecutor agreed that this was not a gang case, but asserted that Wesley "did some things though that seemed to be loosely associated . . . with gang-type behavior relevant to this case." The prosecutor pointed to text messages that were proposed exhibits in which Wesley replaced the letter "C" with "K" in his writings. The prosecutor noted this was a common practice for Blood gang members because they are rivals of the Crips, and requested the ability to question Wesley about the spelling. The court stated it would not allow that line of questioning, but would permit the prosecution to raise it again if "we meander into some unforeseen area that you think entitles you to get into something . . . ."
After Wesley's direct testimony, the prosecutor raised the issue again, outside the jury's presence. The prosecutor argued that the spelling in Wesley's text messages was relevant to show that Wesley wanted to be like a gang member, that he "wants to be tough," and that "when he's disrespected by [Charon], he will kill him," and "when he's disrespected by his girlfriend, he would do certain things to her or be controlling." The prosecutor argued it was not "gang evidence," but evidence of Wesley trying to "be tough" and "to be a gangster." The prosecutor also asserted that the spelling was relevant to impeachment based on his prior conviction, which was committed with documented members of the Kutt-Throat gang.
Over Wesley's counsel's objection to the proposed questions, the trial court ruled the prosecutor could inquire about the spelling in Wesley's text messages and about certain representations that he made about his tattoos, but could not get into any discussion about the Kutt-Throat gang. On cross-examination, Wesley testified his "MMM" tattoo meant money, music, and motivation. He denied that it meant murder, money, and mafia. When asked about the spelling he used in his text messages, substituting "K" for "C," Wesley said that he did that for no particular reason.
The prosecutor then directed Wesley's attention to a text message that he sent to Harris after Charon's death on July 12 at 2:27 p.m., where he consistently removed reference to the letter "C" and replaced it with another letter. The prosecutor asked Wesley if he used the letter "K" "because that's a common thing done in Blood gang culture" and "because Blood gang members hate the Crips and Crips is spelled with a "C." In response, Wesley stated "That is not true. That is just a way that I text, just like how I put capitals and lower case. It's not having to do with gang related. I'm not a documented gang member. I'm not in any gang relation." The prosecutor then asked Wesley, "Isn't it true that you want to be like a gangster?" Wesley responded, "No, I don't want to be like a gangster." When asked again if "it just coincidentally happens to be that in all your text messages, you replace the letter "C" with the a "K," Wesley responded, "I've been texting like that since I was 15 years old.
In closing argument, the prosecutor asserted Wesley replaced the letter "C" in his texts with other letters, which he remarked "is an odd thing to do," given how inconvenient it would be to replace the letter "C." In his closing rebuttal argument, the prosecutor referred to Wesley as a "wannabe gangster rapper . . . trying to display the street lifestyle," and as wanting nothing more than having "the street credibility of being a person who was able to kill someone else and get away with it." B. Legal Standard and Analysis
"Only relevant evidence is admissible [citations], and all relevant evidence is admissible unless excluded under the federal or California Constitution or by statute. [Citations.]" (People v. Heard (2003) 31 Cal.4th 946, 973 (Heard), quoting People v. Scheid (1997) 16 Cal.4th 1, 13; Evid. Code, §§ 350, 351.) Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "The test of relevance is whether the evidence tends ' "logically, naturally, and by reasonable inference" to establish material facts . . . .' " (Heard, at p. 973.) "The trial court has broad discretion in determining the relevance of evidence." (Ibid.; People v. Crittenden (1994) 9 Cal.4th 83, 132.)
Even if evidence is relevant, it is not admissible unless its probative value outweighs the "probability that its admission would create a substantial danger of undue prejudice." (Heard, supra, 31 Cal.4th at p. 972; Evid. Code, § 352.) "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code 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." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.) This court reviews the trial court's ruling on the admissibility of evidence for an abuse of discretion. (Heard, at p. 972; People v. Rowland (1992) 4 Cal.4th 238, 264.)
Wesley asserts that the prosecutor's questions and testimony were irrelevant and highly prejudicial because they insinuated that Wesley was a gang member. As an initial matter, contrary to Wesley's assertion, the evidence was relevant to the prosecutor's theory of the case, i.e., that Wesley was a want-to-be gangster who killed his friend for disrespecting him. During his closing argument, the prosecution related the spelling and other evidence to its theory that Wesley was infatuated with the gang lifestyle and wanted the credibility that would come with being able to commit and get away with such a crime. Further, the prosecutor's line of questioning was patently relevant to explaining the text messages containing the unusual spelling, the admission of which Wesley did not object to and does not challenge on appeal.
Thus, what remains of Wesley's argument is his assertion that the trial court's determination that the evidence was admissible under Evidence Code section 352 was an abuse of discretion. The questions and testimony did suggest that Wesley was interested in gang culture and wanted to be seen as a gangster, and this connotation was undoubtedly prejudicial to him. However, the answers to the questions posed by the prosecution about his text messages were relevant to understanding the texts and probative of both Wesley's state of mind and the prosecutor's theory that the murder was motivated by Wesley feeling disrespected by Charon. The record shows the court understood its responsibility to weigh the prejudicial effect of the proposed evidence against its probative value. We conclude its determination to allow the questions and resulting testimony was not an abuse of the court's discretion.
IV
Judicial Bias
Wesley next contends that the court's evidentiary rulings show an improper bias against him, which resulted in a fundamentally unfair trial. He asserts his constitutional due process rights were violated because the court changed rulings made before trial that in every instance favored the prosecution, and it did so only because it was "displeased that appellant would deny the crime." The Attorney General responds that this argument was forfeited because it was not raised below, and even if it is properly considered by this court the claim lacks merit. We agree on both counts.
"As a general rule, judicial misconduct claims are not preserved for appellate review if no objections were made on those grounds at trial. [Citations.]" (People v. Sturm (2006) 37 Cal.4th 1218, 1237 (Sturm).) A " '[d]efendant's failure to object at trial [about alleged judicial misconduct,] particularly where . . . such action would have permitted the court to clarify any possible misunderstanding resulting from the comments, bars his claim of error on appeal.' [Citation.]" (People v. Sanders (1995) 11 Cal.4th 475, 531.) "However, a defendant's failure to object does not preclude review 'when an objection and an admonition could not cure the prejudice caused by' such misconduct, or when objecting would be futile." (Sturm, at p. 1237.)
As the Attorney General notes, Wesley does not point to any specific rulings by the trial court in his opening brief. The reply brief identifies the challenge as stemming from statements the court made during trial before it ruled on the admissibility of Wesley's prior conviction and the uncharged bad acts. During the argument over admissibility of this evidence outside the presence of the jury, the court expressed frustration with Wesley's surprise testimony that Charon attacked Wesley first and that Chevis shot Charon to protect Wesley.
Specifically, after the prosecution again sought to impeach Wesley with this evidence, the court indicated its intention to allow the prior felony conviction for impeachment purposes. Wesley's defense counsel questioned the tentative decision, asking the court to explain "how it thinks it's reasonable" to allow the evidence. As noted, the court responded that it believed Wesley had "left the jury with a false sense of what it was that took place at the time of the actual murder. And I think that the facts of the underlying prior would help the jury [have a] better assessment of the credibility of all the witnesses who have testified, which is always at stake." The court continued, "just as you tried to characterize Ms. Chevis in a certain light, which is your right and your duty, the people have an ability to respond now that [Wesley] has taken the stand and chosen to characterize other individuals in a certain light and himself in a certain light, I think it leaves the jury with a misconception of who the witnesses all are from their own individual perspective."
Wesley's counsel continued to assert the prior was irrelevant and highly prejudicial, but also accused the court of allowing the testimony simply because Wesley "open[ed] his mouth and discussed anyone other than himself [as the shooter] on the stand . . . ." The court rejected the accusation, instead explaining that Wesley's testimony opened the door to impeachment because his credibility was an important issue for the jury's consideration, particularly in light of his previously unknown testimony that Charon was the instigator of the altercation and that Chevis was the killer. Defense counsel repeatedly asserted that the court was unfairly penalizing Wesley for his testimony. The court steadfastly disputed the claim, instead asserting its role was to evaluate the "totality of his information that [Wesley] provided." The court did note that Wesley had "disparage[d] people who can't even testify here in court because their voice has been silenced. . . . And it's not fair for the jury to evaluate much of the information that was one-sidedly provided against the person who no longer walks among us—from your client's own mouth."
This argument between the defense counsel and the court does show the court's frustration with Wesley's testimony. However, Wesley never raised any concern that the court was biased against him during the trial. This fact bars his challenge on appeal. (See People v. Snow (2003) 30 Cal.4th 43, 78 [Failure of defense counsel "to object to, or seek a jury admonition regarding, any of the instances of alleged judicial intemperance" waives the issue on appeal.].) Even if we were to consider the challenge, we do not agree the record shows the bias Wesley alleges, nor is there any indication that the court's frustration impacted its rulings. Rather, the court's statements show that it conducted its analysis of the admissibility of the prior conviction and uncharged acts under the proper standards. Critically, after initially indicating it was inclined to allow the prosecutor to question Wesley about the underlying facts of his conviction, the court pulled back from that position and allowed only the sanitized characterization of the conviction as a violent felony theft offense.
As discussed in section I, Wesley mischaracterizes the court's pretrial position of the prior conviction and uncharged offenses as a ruling the evidence was inadmissible. At the conference on the parties' in limine motions, the court explicitly left open the possibility that the evidence could be used for impeachment purposes.
Finally, none of the court's comments expressing frustration with Wesley's testimony were made in front of the jury. Wesley's assertion that, like the jury, the judge should not "form an opinion or reach a conclusion until the case is finally submitted to them," is not well taken. Here, the court said nothing to suggest to the jury or otherwise that it had formed an opinion about Wesley's guilt. It indicated only that it was appropriate for Wesley's credibility to be impeached by the prosecution. Wesley has not shown judicial bias.
V
Firearm Use and Possession Evidence
Wesley argues that the court prejudicially erred by allowing into evidence images of him at a shooting range firing an AK47 gun. The Attorney General responds that the evidence was properly admitted, and even if the court's ruling was made in error, the error was not prejudicial. A. Additional Background
In limine, the defense moved to exclude any pictures of Wesley holding a gun as unduly prejudicial under Evidence Code section 352. At the pretrial conference on the parties' motions in limine, the trial court and the parties discussed People's Exhibit No. 217, a "video capture" of Wesley at a shooting range with an AK47 assault rifle. The prosecutor proffered that the incident took place on April 22, 2017, a few months before Charon's shooting death. Wesley's counsel objected to the evidence as irrelevant because the gun was not the murder weapon and Wesley was not charged for that instance of possession.
The prosecutor argued the evidence was relevant to show Wesley had access to firearms, and that "he has knowledge of firearms and that he has used firearms before." He asserted that under the prosecution's theory, the picture was "circumstantial evidence that the jury can use to infer the truthfulness of the claim that [Wesley] possessed the gun on July 12 when [Chevis] testifies that he, in fact, did." The trial court agreed with the prosecution's theory of admissibility. Wesley's counsel then argued the court should exclude the picture under Evidence Code section 352 because it was highly prejudicial. The court overruled the objections, allowing the picture to be admitted.
During trial, outside the jury's presence, defense counsel renewed his objection to the image of Wesley firing an AK47, again arguing the evidence was irrelevant and highly prejudicial. In the alternative, Wesley's counsel requested the prosecution's questions about the evidence be limited and a jury instruction explaining the limited purpose for the evidence. The court indicated it would not change its ruling, but agreed over the prosecution's objection to give a limiting instruction.
Detective Crysler testified that during his search of Wesley's cell phone, he discovered an application called Pocketvideo and within the application found three videos of Wesley at a gun range firing the assault weapon. The videos were timestamped April 22, 2017. The still photo captured from a video, People's Exhibit No. 217, and three videos showing Wesley holding and firing the weapon were played for the jury. The court then provided a limited instruction to the jury, stating: "The [still] photo and the videos . . . were admitted as pieces of evidence for a limited purpose. That purpose is circumstantial evidence as it relates to [the firearm possession charges]. ¶ It is not the actual evidence that the People intend to present that Mr. Wesley was in possession of a weapon on the date alleged, but rather can be considered as circumstantial evidence of the fact that he was in possession in [those] counts on the date that is alleged." B. Legal Standard and Analysis
Wesley contends the pictures and videos were inadmissible character evidence, and that even if marginally probative of the claims, the evidence was highly prejudicial "given the mass shootings in schools, in San Bernardino, and in Las Vegas." We disagree and hold that the trial court did not abuse its discretion by allowing the evidence.
The standards by now are familiar. All relevant evidence is admissible unless excluded under federal or state law. (Heard, supra, 31 Cal.4th at p. 973; Evid. Code, §§ 350, 351.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "The test of relevance is whether the evidence tends ' "logically, naturally, and by reasonable inference" ' to establish material facts . . . ." (Heard, at p. 973.) "The trial court has broad discretion in determining the relevance of evidence." (Ibid.)
"[E]vidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) Nevertheless, "evidence that a person committed a crime, civil wrong, or other act" is admissible "when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, [or] absence of mistake or accident[)] . . . other than his or her disposition to commit such an act." (Evid. Code, § 1101, subd. (b).) An appellate court reviews the admission of evidence under Evidence Code section 1101 for an abuse of discretion. (People v. Memro (1995) 11 Cal.4th 786, 864.)
Finally, even if evidence is relevant, it is not admissible unless its probative value outweighs the "probability that its admission would create a substantial danger of undue prejudice." (Heard, supra, 31 Cal.4th at p. 972; Evid. Code, § 352.) This court reviews the trial court's ruling on the admissibility of evidence for an abuse of discretion. (Heard, at p. 972.)
We agree with the Attorney General that the evidence was relevant and appropriate circumstantial evidence of Wesley's unlawful possession of a firearm at the time of the murder, which was the basis for the two unlawful possession charges. The shooting range evidence was not introduced to show a criminal propensity, but rather to demonstrate that Wesley had access to and used firearms with knowledge of his felony conviction. The evidence also bolstered the credibility of Chevis, the key prosecution witness. As the prosecutor pointed out, Chevis's credibility was very much at issue, especially because she was the only percipient witness to the shooting (besides Wesley) and had entered a plea agreement with the prosecution. (See People v. Smith (2003) 30 Cal.4th 581, 613 [trial court properly admitted evidence that defendant owned guns not used in the murder because "[t]his evidence did not merely show that defendant was the sort of person who carries deadly weapons, but it was relevant to his state of mind when he shot [the victim]"]; People v. Jablonski (2006) 37 Cal.4th 774, 822 [trial court properly admitted evidence that defendant brought to the crime scene a stun gun and handcuffs not used in the murder because the items were relevant to premeditation].)
In his reply brief, Wesley relies on a recent case, People v. Reyes (2019) 35 Cal.App.5th 538 (Reyes) to support his contention that the evidence was not relevant to the charges. In Reyes, the Court of Appeal held that the trial court prejudicially erred by allowing a prior specific instance of the defendant's gun possession to be admitted to show knowledge of his gun possession in the charged offense. (Id. at pp. 551-552.) The defendant was arrested during a traffic stop of a codefendant's car when police noticed a gun and an extended magazine with at least 40 rounds in it, in a backpack on the passenger floorboard near the defendant's feet. The defendant was charged with receiving a large-capacity magazine and possession of a firearm by a felon. (Id at p. 541.) At trial, the court admitted evidence that six months earlier, the police found two guns with empty magazines in a nylon gun case on the rear passenger floorboard of the defendant's vehicle, which resulted in a firearms possession conviction. The Court of Appeal concluded this evidence was not relevant to the disputed issue of whether the defendant had knowledge that there were weapons in his codefendant's car because the earlier conviction did not involve a question of knowledge. (Id. at pp. 551-552.)
Here, the evidence was relevant directly to the disputed issues of Wesley's and Chevis's credibility and to demonstrate that Wesley had access to and used firearms with knowledge of his felony conviction. Contrary to Wesley's argument, Reyes does not support his contention that the evidence was irrelevant.
Like the questions about Wesley's fascination with gang culture, the picture and videos of Wesley at a shooting range were damaging to him. Wesley, however, has not shown that the prejudice substantially outweighed the probative value of the evidence. He asserts that the public's view of assault rifles is so negative that the image of him holding an AK47 would be viewed by the jury as proof he broke the law. This generalized argument is not sufficient to show an abuse of the court's wide discretion to make evidentiary rulings. (See Smith, supra, 30 Cal.4th at p. 612.) Accordingly, given the relevance of the evidence, the trial court's ruling was not error.
VI
Self Defense Jury Instruction
Wesley asserts the court erred by rejecting his trial counsel's request for a jury instruction on self-defense. Specifically, he claims the instruction was warranted because substantial evidence supported the theory that Wesley shot Charon in self-defense. A. Additional Background
At the instructional conference, the defense requested that the trial court give an instruction on self-defense based upon Chevis's initial account of the shooting to the police. At the conference, the court asked defense counsel if he would be arguing that the jury should believe Chevis's prior statement to the police over Wesley's own testimony. Wesley's counsel would not state what argument he planned to make before the jury, but said that since the jury had heard both theories, the instruction was required. The court rejected this argument, concluding the instruction on self-defense would "introduce confusion and not clarity." B. Legal Standard and Analysis
" '[T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case.' [Citation.] In addition, 'a defendant has a right to an instruction that pinpoints the theory of the defense [citations]; however, a trial judge must only give those instructions which are supported by substantial evidence. [Citations.] Further, a trial judge has the authority to refuse requested instructions on a defense theory for which there is no supporting evidence.' [Citation.] 'A party is not entitled to an instruction on a theory for which there is no supporting evidence.' " (People v. Roldan (2005) 35 Cal.4th 646, 715 (Roldan), disapproved on other grounds by People v. Doolin (2009) 45 Cal.4th 390.)
Here, as Wesley recognizes, there was only minimal evidence that Wesley acted in self-defense in the form of Chevis's initial statement to the police. At trial, during her testimony she entirely recanted that version of events, testifying she made the statement to protect Wesley. Wesley's own testimony did not support a theory of self-defense, since in his version of the events Chevis was the killer. Consequently, the jury was unlikely to infer that Wesley had acted in self-defense when he shot Charon. These factors supported the trial court's refusal to give the requested self-defense instruction. (Roldan, supra, 35 Cal.4th at p. 715 [trial court has the authority to refuse requested instructions on a defense theory for which "only minimal and insubstantial evidence" has been presented].)
As the Attorney General points out, she also claimed during the interview that she did not see the gun or the shooting.
However, we need not decide whether the instruction was required, " '[b]ecause a trial court's failure to instruct . . . is not prejudicial if, as here, the jury necessarily resolved the factual question adversely to the defendant under other instructions . . . .' " (Barnett, supra, 17 Cal.4th at p. 1155.) Here, by convicting Wesley of first degree murder, the jury determined Wesley acted willfully, deliberately and with premeditation. A finding that an individual has determined to kill by the exercise of preexisting reflection, is directly contrary to a belief in the necessity to defend against an immediate harm—an essential element of self-defense. Further, the jury rejected the lesser offense of second degree murder, again finding a state of facts which were necessarily inconsistent with those required for self-defense. In light of these conclusions, "the jury verdict would have been the same absent the [alleged] error." (Neder v. United States (1999) 527 U.S. 1, 2, 19, 26 (conc. opn. of Stevens, J.); People v. Seaton (2001) 26 Cal.4th 598, 664-665, 669 [no prejudice where jury under other instructions "necessarily rejected" the defense's theory]; Barnett, at p. 1156.)
VII
Prosecutorial Error
Wesley next argues that the prosecutor's questions concerning his spelling, his infatuation with gang culture, and the two prior uncharged acts constitute prosecutorial misconduct under the state and federal constitutions, mandating reversal of his convictions. Wesley further asserts, without any evidentiary basis, that the prosecutor fabricated his assertion to the trial court that he had a good faith basis to question Wesley about the uncharged conduct. We reject Wesley's arguments concerning prosecutorial error.
Under the federal Constitution, a prosecutor commits misconduct when his or her behavior comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Gionis (1995) 9 Cal.4th 1196, 1214 (Gionis).) If the prosecutor's conduct does not render a criminal trial fundamentally unfair under the federal standard, that conduct is prosecutorial misconduct under California law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Ochoa (1998) 19 Cal.4th 353, 427.)
"Generally, a reviewing court will not review a claim of misconduct in the absence of an objection and request for admonishment at trial. 'To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.' " (Gionis, supra, 9 Cal.4th at p. 1215.) The record here contains nothing to suggest an objection to the prosecutor's questions would have been futile, or that an admonition would not have cured any resulting prejudice. Had Wesley's trial counsel objected to the lines of inquiry he now asserts constituted prejudicial misconduct, a further record could have been made on the topic, or an admonition for the jury to disregard the questions could have been provided. Absent any objection, Wesley has forfeited the claim of prosecutorial error.
Even if appropriate objections had been made, however, Wesley's claim of prosecutorial misconduct is not meritorious. As discussed ante in the preceding sections, the prosecutor's questions were proper attempts to impeach Wesley's credibility after his direct testimony. The trial court ruled that an explanation for Wesley's writing style, his desire to be like a gangster, and prior charged and uncharged acts were admissible. Thus, the prosecutor's inquiry into these areas did not constitute misconduct. (People v. Foster (2010) 50 Cal.4th 1301, 1350; see also People v. Chatman (2006) 38 Cal.4th 344, 379-380 [" 'Although it is misconduct for a prosecutor intentionally to elicit inadmissible testimony [citation], merely eliciting evidence is not misconduct.' "].) The prosecution's conduct was not fundamentally unfair, nor did it involve the use of deceptive or reprehensible methods to attempt to persuade the jury. Wesley has not shown any prosecutorial misconduct, let alone prejudicial conduct to support reversal of his conviction.
In a similar vein, Wesley also contends that even if each asserted error alone was not prejudicial, the totality of errors supports reversal of his conviction. Having concluded there was no prejudicial error as to any of the issues raised by Wesley, we do not reach his claim of cumulative error. (People v. Richardson (2008) 43 Cal.4th 959, 1036.)
VIII
Imposition of Fines, Fees, and Assessments
Wesley's final argument on appeal concerns the imposition of various fines, fees, and assessments. Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), he argues the trial court erred because it failed to hold an ability to pay hearing before it imposed the court operations assessment of $120 (Pen. Code, § 1465.8), the criminal conviction assessment of $90 (Gov. Code, § 70373), the booking fee of $154 (Gov. Code, § 29550), and the restitution fine in the amount of $10,000 (Pen. Code, § 1202.4, subd. (b)), in violation of his due process rights.
We disagree. As to the $10,000 restitution fine, Wesley had the statutory right, and thus was obligated, to object to the imposition of that fine above the $300 statutory minimum. (§ 1202.4, subd. (c) [inability to pay may be considered when the restitution fine is increased above the minimum].) His failure to do so forfeits this claim of error on appeal. (See People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) With respect to the remaining $364 in fees and assessments, given the length of his prison sentence, Wesley will have the ability to pay these fees and assessments (as well as the $10,000 restitution fine) based on the wages he may earn in prison. (See People v. Hennessey (1995) 37 Cal.App.4th 1830, 1837 [ability to pay includes a defendant's ability to obtain prison wages]; § 2085.5 [outlining how a restitution fine balance may be collected from prison wages].) We thus find remand for an ability to pay hearing unnecessary.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J. WE CONCUR: HUFFMAN, J. AARON, J.