Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. BA286179 William C. Ryan, Judge.
Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Travon Willis appeals from the judgment entered following a joint jury trial with his co-defendant, Khaaliq Binns, in which appellant was convicted of first degree murder with firearm-use and gang enhancement findings. Appellant claims instructional error and ineffective assistance of counsel require reversal of his conviction. We affirm.
Binns was also convicted, but did not appeal.
FACTS
Darren “Dayday” Elliott was fatally shot in the early evening of June 9, 2005, inside an apartment from which he sold drugs. The police found Elliott dead on the kitchen floor with multiple bullet wounds. Elliott had a plastic bag of marijuana in one hand and a loaded 9-millimeter semi-automatic handgun tucked inside his waistband. He had $677 in cash on his person. The police found another loaded handgun, a shotgun, and a bulletproof vest in an open storage area near the entry door. A backpack, a scale, and $80 were on the kitchen counter. The backpack contained plastic bags holding ecstasy pills. A briefcase in the kitchen contained several loaded magazines for semi-automatic handguns and additional ammunition. The police recovered four expended.357 caliber casings from the kitchen sink. All were fired from the same gun. None of the ammunition, guns, or magazines found in Elliott’s apartment were.357 caliber. The police never found the.357 caliber gun. An autopsy determined that the cause of death was four, “through and through” gunshot wounds, including shots to the right side of Elliott’s head, his right arm, his right thigh, and his neck.
Unless otherwise noted, all further unspecified date references pertain to 2005.
Elliott occupied apartments 4 and 7 in the same building, but apartment 4 played no significant role in the events giving rise to the charged offense.
Elliott’s friend, Marquis Addy, testified that on June 9 he spent most of the day with Elliott and a man he knew only as Dee. Most of the day they drove around in Elliott’s van. They went back to Elliott’s apartment building twice. The second time was at about 6:50 p.m. Elliott had received a phone call and was going to meet “White Boy” at the apartment. Addy and Dee remained in Elliott’s parked van while Elliott went upstairs to the apartment. After Addy heard some gunshots he and Dee got out of the van and ran up to Elliott’s apartment, where they found him “shot up” in the kitchen. Addy told neighbors to call 911 and left with Dee in Elliott’s van to alert Elliott’s mother. They took with them a leather jacket from the closet to give to Elliott’s son, but did not touch anything else.
Elliott’s apartment building had four video cameras that recorded a photograph every two seconds. Detective Stanley Evans testified he examined three hours’ worth of video from each of the apartment building’s cameras, beginning about two and one-half hours before the shooting and ending about 30 minutes afterwards. The footage depicted the walkway in front of the door to Elliott’s apartment, the courtyard and stairway, and parking area. The prosecutor and defense counsel repeatedly played portions of the video at trial.
While the video played, Addy identified Elliott getting out of his van in the parking lot, walking on the walkway and entering his apartment, and returning to the van. The video later showed “White Boy” climbing the stairs, Elliott parking his van and getting out, Elliott entering his apartment with “White Boy,” and “White Boy” leaving the apartment. In the next portion of the video, the door of Elliott’s apartment opened, Elliott stepped out of the door, and two men Addy did not recognize walked into Elliott’s apartment. Next, the video showed two men running along the walkway as the door of Elliott’s van opened and Dee and Addy got out of the van and ran toward the building. Addy testified this depicted him running toward the building after hearing the gunshots. The video showed Dee and Addy entering Elliott’s apartment, stepping outside with mobile phones as they tried to call 911, telling a neighbor to call 911, leaving the apartment with the leather jacket, and driving quickly away in Elliott’s van. The next portion showed the police arriving at the apartment. Detective Evans testified that appellant and Khaaliq Binns were the two men who entered the apartment with Elliott, then ran away as Addy and Dee approached. He further testified that appellant and Binns went to the door of Elliott’s apartment twice, with the first instance occurring about 45 minutes to one hour before the second instance.
Robert Smith testified that he visited Elliott’s apartment on June 9 to “get some weed.” He claimed not to remember anything else about seeing Elliott that day or about statements he made to the police. He also refused to identify himself in the surveillance camera video. At the preliminary hearing, however, he identified himself in the video and said that when he left the apartment, Elliott was alone. Smith told Detective Evans he went to Elliott’s apartment on June 9 and on his way down the stairs he passed two men, one of whom he recognized as a 118th Street East Coast Crip gang member named Khalif or Khaaliq who went by “Loc” or “Lof.”
Smith identified the man from a photograph Detective Evans showed him. However, the record does not reflect the identity of the person in the photograph.
On June 9 James Garrison was working in a recording studio in a building adjacent to Elliott’s apartment building. At around 6:50 p.m. Garrison saw Elliott out on the walkway outside the apartment doors talking and beckoning to people in the parking lot. Two African American men went inside Elliott’s apartment. Garrison heard gunshots and saw the two men run down the walkway and the stairs. Someone else then ran up the stairs, then went back downstairs and drove away in Elliott’s van. Garrison watched a portion of the surveillance camera video at trial and testified that it showed the two men arriving, being greeted by Elliott, and following Elliott into his apartment. It then showed that “after the gunshots are fired or heard, they run immediately out on the balcony and take off and coming [sic] down the front staircase.” Before trial Garrison selected appellant’s photograph from a six-pack array of photographs. At trial, Garrison identified appellant and Binns as the men he saw go inside Elliott’s apartment and then run away after the gunshots on June 9.
Sylvia Smyles lived in the same building as Elliott. At around 6:50 p.m. on June 9 she saw appellant and Binns knock on the door of apartment 4. She then heard Elliott say, “Come here, man. Over here, man.” Smyles saw appellant and Binns enter apartment 7. Almost immediately after they went inside, Smyles heard two or three “pow” sounds and saw appellant and Binns run down the stairs. She then saw Elliott’s friend “Head” get out of Elliott’s van and run up the stairs.
On August 7 Detective Steve Rubino caused appellant and Binns to be placed together in a jail cell that contained a hidden recording device. An edited recording of the ensuing conversation between the co-defendants was played at trial, and jurors were provided with a transcript. Near the start of that conversation, Binns said that the detectives told him appellant made a statement against him. Appellant replied that the detectives told him that Binns made a statement against him. Appellant then surmised that the police were trying to turn them against one another. Appellant said the detectives also told him that Binns had written a letter “to the hood” saying that if appellant did not “go to jail for this,” Binns would “tell” that appellant shot the person. Binns replied, “All you had to do is be quiet. They had nothing on us, 'cuz.” Appellant responded that he did not tell the detectives anything and agreed, “They ain’t got nothing on us....” Binns continued to insist that the detectives told him that appellant was “trying to put it all on” him, and he purported to read aloud from a document in which appellant purportedly stated that he and Binns entered Elliott’s apartment together so that Binns could “buy some weed,” Binns walked in the kitchen while appellant watched television, appellant heard several gunshots and saw Elliott on the ground, Binns ran out and told appellant to come with him, and Binns later warned appellant not to say anything about what happened. Binns told appellant, “My public defender even said, if you wouldn’t have made a statement they would have let us go, 'cause they didn’t have nothing, man.” Appellant said that the detectives told him that Binns told them that appellant “and him got into an argument over some weed and [appellant] shot him.” Appellant added that his attorney had said the only reason they were holding him was the statement that Binns made. Binns said, “They would have let me go if I would blame it all on you,...” Appellant replied, “They wouldn’t never gonna let you go 'cause you were there,...”
Recording the conversation presented no violation of appellant’s or Binns’s constitutional rights. (See, e.g., People v. Hines (1997) 15 Cal.4th 997, 1043 [surreptitiously recording conversation between accomplices in jail did not violate Fourth, Fifth, or Sixth amendment].)
Binns asked what appellant actually said to the detectives, and appellant replied that he told them that he and Binns went to the apartment to “buy some weed,” that there was someone in the bathroom, and “[a]s we was coming out -- as we bought the weed, we was coming out, and we heard some gunshots and we both ran out [of] the place,...” Binns responded that he also told the detectives there was someone else in Elliott’s apartment. Binns reiterated that the detectives told him that appellant and Spider were blaming him for the offense. Appellant remarked that “my lawyer said, the camera don’t even show me good. How can they say that was me?” Binns told appellant that the police report also indicated that some people arrived in a white van, went into the apartment, and starting moving things out of it. Binns suggested those people might have been the ones who killed Elliott. Binns and appellant repeatedly agreed they needed to get their stories straight and tell their attorneys that the detectives got their statements wrong or added things to them. Binns suggested various other stories, such as Elliott was already dead when they went into his apartment or someone else was in the apartment.
Appellant declared, “[N]o matter what,... I ain’t did nothing.... You ain’t do nothing.” Appellant later reiterated, “We ain’t do nothing.” Binns repeatedly remarked that the police did not have the gun. Binns noted that the people who took things out of the apartment “really made it look, like, crazy when they pulled up and started taking shit out the house, homie. 'Cause there had to be some time, fool, after -- after we left there had to some time for them to pull up and then got to remove shit out out the house, and the police aren’t there yet. That’s what I’m saying. He could have been -- for all I care he was dead already when I came in. But I didn’t tell them that, though. [¶] I told them there was a fool already in there and he was squabbling, he got into a argument with Daedae and they was wrestling in the kitchen, 'cuz, popped him. While I was waiting on to buy my weed. But I already gave Daedae my money for my weed and then he came out of another room.”
Appellant also warned Binns that his attorney said the police were attempting to “[g]et our cases split up. So we won’t even see each other no more.” Appellant also said, “All they trying to do is get somebody to tell, 'cuz. They can’t -- ain’t nobody can tell on nothing, 'cause we ain’t did nothing.” Binns remarked that it was not plausible that appellant made the statement the police said he made because “you incriminating -- you mean telling on yourself, 'cuz.” Appellant later agreed, “In order for me to tell on you I got to tell on me.” Binns said the same was true for his purported statement: “Even if -- even if I say you the one that did the shooting. Why would I say that, 'cuz, be on camera running out to you, 'cuz, -- to the car, homie. That’s telling on myself.” At the end of the conversation, Binns resolved to tell his attorney that Elliott was already dead when they went into his apartment. Appellant cautioned, “You can’t say he was dead. 'Cause they got it in the report that he let us in.” Binns responded, “Oh, yeah, yeah. Oh, shit.” He suggested they say they ran out because they heard a car alarm.
In other portions of the conversation, appellant and Binns discussed whether other gang members, specifically members of the Q102 set of the East Coast Crips gang, were upset about Elliott’s murder. Appellant said he had seen Twin. Binns asked if Twin said anything about Elliott’s murder. Appellant replied, “He was, like, 'cuz, they talked to Baby G.... Baby G was just like, do what all you gonna do.” Binns countered, “Who said that? I already told you Baby G, nigger, gave the green light, nigger, that’s on the real, homie. I mean, it ain’t -- I don’t give a fuck what 'cuz talking about. But 'cuz Baby G talking -- I been told you 'cuz was scared of us, homie. What did he say Baby G said, though?” Appellant replied, “Do what you all want to do to them niggers.” Binns asked, “That’s what he told who? Twin?” Appellant replied, “Yeah.”
Officer Roger Fontes, the prosecution’s gang expert, testified that Binns had personally admitted his membership in the 118th Street set of the East Coast Crips gang to Fontes. On the basis of this admission, a gang tattoo, and papers and photographs recovered from Binns’s home, Fontes opined that Binns was a member of the 118th Street set of the East Coast Crips gang in June 2005. Fontes had heard that Binns used three monikers, including “Young Loff.” Less than one month before Elliott’s murder, appellant admitted his membership in the 118th Street set of the East Coast Crips gang to Fontes. Fontes was aware that appellant used the monikers “Tre,” “Juicy,” and “Rosco.” Fontes was aware that a leader of the 118th Street set of the East Coast Crips gang named James Brown used the moniker “Baby G.” Fontes had heard that Binns and Brown had a mutual relative. Fontes knew that Elliott was a member of the Q102 set of the East Coast Crips gang. The 118th Street and Q102 sets were generally friendly and interacted.
In response to a hypothetical question mirroring the facts of this case --including statements by the perpetrators that Q102 members were “tripping” about the murder and that “Baby G gave the green light,” Fontes opined the hypothetical murder would have been committed at the direction of a gang and with the specific intent to promote, further, or assist in criminal conduct by gang members. He further opined that lower-ranking members of the gang would not feel free to decline a “green light,” i.e., an order to kill someone. After hearing the tape of the recorded conversation between appellant and Binns, Fontes formed the opinion that Elliott was a high-ranking member of the Q102 set of the East Coast Crips gang. If Baby G ordered Elliott’s murder, it could have led to a “war” between the Q102 and 118th Street sets, but Fontes was not aware of any hostilities between the two sets at the time of the murder. Fontes did not believe the references to Baby G and a “green light” in the recorded jail conversation could be correctly interpreted as meaning that the “green light” was on appellant and Binns.
The jury convicted appellant of first degree murder and found that in the commission of the crime a principal personally and intentionally discharged a firearm, causing death. (Pen. Code, § 12022.53, subd. (b)-(e).) The jury also found that the crime was committed for the benefit of a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A). The court sentenced appellant to 50 years to life in prison.
Unless otherwise noted, all further unspecified statutory references pertain to the Penal Code.
DISCUSSION
1. Ineffective assistance of counsel: failure to object to admission of appellant’s recorded statement to Binns re Binns telling police that appellant shot Elliott
Nearly a year before trial, the prosecutor filed a written motion seeking to admit at trial specified portions of the surreptitiously recorded conversation between the co-defendants. Binns apparently filed a motion in limine to exclude portions of the conversation in which he said he would accept 10 years if he were offered such a disposition for the charged crime and referred to an “imminent murder” and an uncharged robbery. At the hearing on the prosecution’s and Binns’s motions, appellant asserted no objections of his own to any aspect of the recorded conversation, but simply joined in Binns’s objection. The trial court granted Binns’s motion with respect to other crimes, but denied it with respect to a potential disposition. The court otherwise permitted the prosecutor to introduce all portions of the recording addressed in her original motion. The recording was played at trial without objection.
The motion in limine is not part of the appellate record.
Two days after the prosecutor played the recording, the court addressed the prosecutor’s request to instruct the jury on adoptive admissions. The prosecutor explained that some of the statements in the recorded conversation constituted adoptive admissions. Counsel for Binns argued there were no adoptive admissions because appellant and Binns were “basically accusing each other of talking to the police.” Asked for an example of the adoptive admissions, the prosecutor responded, “[T]hey’re saying, ‘You said I shot him. You said I shot him,’ and neither of them is going, ‘You know full well I didn’t shoot him.’ They just continue on to try to explain away the events.” Counsel for Binns argued the statements were just denials and arguments, not admissions. Counsel for appellant made a single contribution to the discussion, noting, “[T]he basic tenor is to deny, not to adopt.” The court overruled the defense objection and instructed the jury on adoptive admissions using CALCRIM No. 357.
Appellant contends his attorney should have asserted hearsay and Confrontation Clause objections to “Binns [sic] statements to the detectives that appellant committed the shooting” “before they were admitted in evidence or moved to strike them when he objected to the prosecution’s theory of admissibility.”
As a preliminary matter, we note that appellant did not object to the prosecution’s theory of admissibility of the recording. As far as the record reveals, appellant merely joined in Binns’s objection to a portion of the recording in which Binns and/or appellant discussed a possible disposition of the charge. It appears appellant may be referring to co-defendant’s challenge to the subsequent discussion of the propriety of instructing upon adoptive admissions. Assuming, for the sake of argument, that appellant joined in that objection to the instruction, it did not constitute a retroactive objection to the admission of the recording several days earlier. A timely and specific objection on the particular ground now asserted on appeal is required to preserve the issue for appeal. (People v. Hill (1992) 3 Cal.4th 959, 994-995 overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046; People v. Thomas (1992) 2 Cal.4th 489, 520.) The recording was admitted without appellant objecting on either of the grounds of inadmissibility asserted on appeal. He thereby forfeited his right to appeal on either ground.
A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. (In re Jones (1996) 13 Cal.4th 552, 561.) Appellant must overcome presumptions that counsel was effective and that the challenged action might be considered sound trial strategy. (Ibid.) In order to prevail on an ineffective assistance of counsel claim on appeal, the record must affirmatively disclose the lack of a rational tactical purpose for the challenged act or omission. (People v. Majors (1998) 18 Cal.4th 385, 403.)
Deciding whether to object or to make a particular argument, motion, or request is inherently tactical, and counsel’s failure to do so will seldom constitute deficient performance. (People v. Samayoa (1997) 15 Cal.4th 795, 848; People v. Kelly (1992) 1 Cal.4th 495, 540; People v. Price (1991) 1 Cal.4th 324, 387.) “Tactical errors are generally not deemed reversible, and counsel’s decision-making must be evaluated in the context of the available facts. [Citation.] To the extent the record on appeal fails to disclose why counsel acted or failed to act in the manner challenged, we will affirm the judgment ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation....’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 333, fns. omitted.)
An out-of-court statement that is offered to prove the truth of the matter stated therein constitutes hearsay and is inadmissible absent an applicable exception. (Evid. Code, § 1200.) However, “[a]n out-of-court statement is properly admitted if a nonhearsay purpose for admitting the statement is identified, and the nonhearsay purpose is relevant to an issue in dispute.” (People v. Turner (1994) 8 Cal.4th 137, 189 overruled on another ground in People v. Griffin (2004) 33 Cal.4th 536.)
The statement in controversy is the following statement by appellant to Binns, “[T]hey tell me you said, me and him got into an argument over some weed and I shot him.”
The statement in issue actually constitutes multiple levels of out-of-court statements. None of the levels, however, were introduced for a hearsay purpose. The top or first level is the statement by appellant to Binns that police told him some particular thing. The truth of the stated matter—that the police told appellant something—was irrelevant to any issue in the case. The statement was not introduced to prove this irrelevant matter. It was instead introduced as an integral part of a conversation between appellant and Binns that reflected their consciousness of guilt regarding Elliott’s murder. Statements admitted to show a defendant’s consciousness of guilt are admitted for a nonhearsay purpose. (People v. Kimble (1988) 44 Cal.3d 480, 496.) In the statement in issue and the preceding statements by Binns, appellant and Binns each accused the other of implicating him in the murder. They discussed the evidence the police did and did not have against them, vowed to “get their stories straight,” gradually worked out the details of their mutual exculpatory tale, and declared their intention to impart their new explanation to their attorneys and the police to free themselves from suspicion. Counsel for Binns expressly acknowledged this nonhearsay purpose during the pre-trial hearing on the prosecutor’s motion seeking to introduce the recorded conversation.
The second level in the statement in issue is a statement by the police telling appellant that Binns told them something. The prosecutor did not introduce this statement to prove that Binns told the police something, but instead introduced it to show appellant’s consciousness of guilt. The third level in the statement is a statement by Binns telling the police that appellant argued with the victim and shot him. This was also introduced to show consciousness of guilt, not to prove that appellant argued with or shot the victim. Although a report that appellant shot Elliott was highly relevant, the prosecutor did not introduce the statement to prove appellant fired the shots, as illustrated by the prosecutor’s failure to argue that the statement in controversy showed that appellant was the person who actually shot Elliott. The prosecutor instead argued that she did not know which of the co-defendants was the shooter, and relied upon the recorded conversation as proof of consciousness of guilt.
Introduction of the multi-level statement did not violate appellant’s right of confrontation because the Confrontation Clause does not restrict the introduction of out-of-court statements for nonhearsay purposes. (Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9 [124 S.Ct. 1354]; People v. Cage (2007) 40 Cal.4th 965, 975, fn. 6 (Cage).) Moreover, the Confrontation Clause applies only to out-of-court statements that are testimonial in nature, i.e., evidence in which a declarant makes a “‘“solemn declaration or affirmation... for the purpose of establishing or proving some fact.”’” (Davis v. Washington (2006) 547 U.S. 813, 824 [126 S.Ct. 2266]; Cage, supra, 40 Cal.4th at p. 981.) In Cage, the court set forth several factors pertinent to the determination of whether a statement is testimonial in nature: “First,... statements that are testimonial... are out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial. Second, though a statement need not be sworn under oath to be testimonial, it must have occurred under circumstances that imparted, to some degree, the formality and solemnity characteristic of testimony. Third, the statement must have been given and taken primarily for the purpose ascribed to testimony -- to establish or prove some past fact for possible use in a criminal trial. Fourth, the primary purpose for which a statement was given and taken is to be determined ‘objectively,’ considering all the circumstances that might reasonably bear on the intent of the participants in the conversation. Fifth, sufficient formality and solemnity are present when, in a nonemergency situation, one responds to questioning by law enforcement officials, where deliberate falsehoods might be criminal offenses. Sixth, statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial.” (Cage, supra, 40 Cal.4th at p. 984.)
None of the statements in the recording were out-of-court analogs of testimony. Appellant and Binns were not responding to questioning by law enforcement officials. They were friends or associates who had a casual conversation they obviously considered to be private. Their willingness to discuss their case and attempt to concoct exculpatory stories demonstrates they had no expectation their statements would be used prosecutorially. Indeed, the conversation as a whole clearly shows that the primary purpose of their statements to one another was not to establish past facts for use in a criminal prosecution, but to fabricate a false mutual story to attempt to escape criminal liability for Elliott’s murder. Therefore, neither the statement in controversy nor anything else in the recording can be deemed testimonial. (See, People v. Jefferson (2008) 158 Cal.App.4th 830, 842-844 [surreptitious recording of co-defendants conversing in jail was not testimonial in character].)
Accordingly, appellant has demonstrated neither deficient performance nor prejudice. Neither the hearsay nor confrontation objections were valid bases for excluding the challenged statement. Moreover, the record does not affirmatively disclose the lack of a rational tactical purpose for counsel’s failure to object on the suggested grounds. Indeed, the record reveals reasons counsel may have chosen not to oppose the admission of the recording. The recording contained numerous denials by appellant that he was involved in Elliott’s murder. At no point in the portion of the recording played by the prosecution did appellant expressly or implicitly admit that he played any role in the murder other than accompanying Binns. Introduction of the recording placed appellant’s denials before the jury without the necessity and risk of calling appellant to testify. On the other hand, Binns repeatedly formulated new exculpatory versions of the event and chastized appellant for giving the police evidence, saying, “All you had to do is be quiet. They had nothing on us, 'cuz.” Thus, appellant’s attorney may have concluded that the recording emphasized Binns’s guilt, and correspondingly de-emphasized appellant’s role, thereby creating a possibility, however small, that the jury would have a reasonable doubt whether appellant acted as an accomplice in the murder.
2. Instructional error: conspiracy instruction
The prosecutor asked the trial court to instruct with CALCRIM No. 416, pertaining to criminal liability based upon an uncharged conspiracy. She believed appellant and Binns must have had an advance agreement to kill Elliott. She identified the overt acts as going to Elliott’s apartment twice and bringing guns with them. Appellant opposed giving the instruction on the ground no evidence supported a conspiracy and the prosecutor had not charged or previously mentioned a conspiracy. The prosecutor explained that the People’s theory had always been that Elliott’s murder was “a hit, which by its nature is a conspiracy.” The court overruled the objection and gave the instruction.
The prosecutor argued the surveillance video showed both appellant and Binns holding their waistbands with one hand as they approached and left Elliott’s apartment. We have reviewed the video and find it inconclusive on this point.
The court instructed as follows: “The People have presented evidence of a conspiracy. A member of a conspiracy is criminally responsible for the acts or statements of any other member of the conspiracy done to help accomplish the goal of the conspiracy.
In part, the prosecution’s conspiracy theory was based upon portions of the following segments from the surreptitiously recorded jail conversation between appellant and Binns:
Binns: The hood ain’t gotta nothing to do with it. It just some Q102 niggers, homie. You all done already ran across a couple of niggers, man.
Willis: Yeah. From where?
Binns: I saw Little Brownie.
Willis: What did he talk about?
Binns: I saw Big P.K., Little P.K.
Willis: What they talking about?
Binns: I don’t give a fuck what they talking about, nigger, as long as they ain’t trying to trip.
…
Willis: Nigger, like, everybody against us right now, 'cuz. The whole (inaudible). I was up there, nigger, on 3000 floor right before I went to SuperMax, nigger.
Binns: With who?
Willis: That nigger Twin from Q102. All them nigger.
Binns: What’d he say – what’d he was saying to you?
Willis: He wasn’t saying nothing to me, cuz.
Binns: They weren’t trippin’, huh?
Willis: No.
…
Binns: You was in a cell with Twin?
Willis: Na. He a trustee.
Binns: What did he say to you, though?
Willis: Nothing. 'Cuz -- oh, 'cuz had came to court with us too. Me, him, Little Shawn.
Binns: He know what happened, though? He know what you’re in here for?
Willis: Na.
Binns: He don’t know you in here on Daedae (phonetic) murder?
Willis: No.
Binns: What did he say, though, about what happened? Or he didn’t mention nothing about murder?
Willis: About the murder?
Binns: Yeah.
Willis: Yeah.
Binns: What’d he say?
Willis: He was, like, 'cuz, they talked to Baby G.
Binns: Yeah.
Willis: Baby G was just like, do what all you gonna do.
Binns: Who said that? I already told you Baby G, nigger, gave the green light, nigger, that’s on the real, homie. I mean, it ain’t -- I don't give a fuck what 'cuz talking about. But ‘cuz Baby G talking -- I been told you 'cuz was scared of us, homie. What did he say Baby G said, though?
Binns’s attorney argued the word on the tape was “scandalous” not “scared of us.” The prosecutor agreed it might say “scandalous,” and that “scandalous” made more sense.
Willis: Do what you all want to do to them niggers.
Binns: That’s what he told who? Twin?
Willis: Yeah.
Binns: Yeah. Okay.
Willis: But the whole time Twin didn’t know who he was talking to, you see.
Binns: Nigger, Baby G, homie -- I already told you 'cuz was saying that, homie. Then you say the detectives came and hollered at you about 'cuz?
Willis: Uh-huh.
Binns: What’d they say?
Willis: Huh?
Binns: What’d they say?
Willis: They was just asking me 'cuz, do I know what happened and all that, shit. I told them, no.
Binns: Well when Baby G name pop up, though?
Willis: I guess, -- I guess, somebody seen 'cuz do it or something, you feel me?
Binns: That’s what they said?
Willis: No. They was just -- they was like, 'cause they heard him. And 'cuz may have some bad blood with each other.
Binns: Yeah.
…
Binns: That nigger, Spider, a cold nigger though, homie.
Willis: He is.
Binns: I’m saying if they on me so much about 'cuz, why they ain’t went to go get 'cuz yet ?
Willis: Exactly. They tell you they got 20,000 more for him, too.
…
Willis: Oh. They seen him on the streets; right? Spider wouldn’t be-- they ain’t questioned 'cuz. 'Cause how could they have questioned him and they trying to say that -- that we did this. We ain’t do nothing, my nigger.
And then try -- but they try to tell me, 'cuz, “Baby Benz already told us how much you all got paid. You might as well just tell us how much money you get.” Money for what?
Binns: Oh, my God. Why would I tell on myself?
Willis: I didn’t get no money for nothing. I’m broke and I’ve been broke and I’m still broke. I didn’t get money for nothing.
In argument, the prosecutor offered the following “interpretation” of the above-quoted portions of the recording: “So here’s the People’s interpretation of this conversation sort of put into more normal English without all the expletives. So, first, Twin, a Q102 gang member, spoke to Baby G, an 118, and Twin says something in the nature of about Dayday’s murder, we’re not very happy about those guys killing Dayday. And Baby G says, ‘I don’t care if you like it. You can do what you want to do to them guys who shot Dayday. It’s not my problem.’ [¶] And then Willis spoke to Twin in jail, and Twin apparently did not know that Willis was charged with Elliott’s murder, and Twin says to Willis, ‘I talked to Baby G about whoever killed Dayday. Baby G said do what you all want to do to them.’ [¶] And Willis is – he’s sitting here realizing that Twin doesn’t know who he’s talking to. That’s what he told Mr. Binns; right? He doesn’t know he is one of the people who did it. He doesn’t know who he’s talking to. [¶] And then Mr. Willis went and spoke to Mr. Binns, and he says Twin is tripping about Dayday’s murder. He talked to Baby G, but Twin didn’t know who he was talking to. He didn’t know he was the one who did it. And Binns said, ‘But I told you Baby G is the one that gave the green light. I don’t care what Twin is taking [sic] about. Baby G said to do it. And now he’s laying us out, and Baby G is scandalous,’ and that’s why I have to say scandalous does make more sense in that context than scared of us.”
Appellant contends the evidence did not support the conspiracy instruction. He argues the only reasonable interpretation of the above-quoted portions of the recording is “that Baby G... put a ‘hit’ or a ‘green light’ on the defendants, not on Elliott.” He explains, “Twin and Elliott were both members of Q102. The audiotape shows that Twin spoke to Baby G after Elliott was killed, not that Baby G talked to the defendants before the shooting. Moreover, Baby G told Twin, ‘Do what you all want to them niggers.’... Elliott was a single person and the defendants were two. Thus, the audiotape shows that Baby G told Twin that he had no objection to gang members taking action against the defendants after Elliott was shot.”
The above-quoted portions of the conversation between appellant and Binns are reasonably susceptible of both of the competing interpretations given them by the parties. The use of slang and pronouns, along with uncertainty about a few of the actual words spoken contribute to the ambiguity. In short, the recording created a factual issue for the jury as to whether appellant and Binns were discussing Baby G putting a “green light” on them, on Elliott, or, as the prosecution theorized, both. The testimony of the prosecution’s gang expert supported the theory that Baby G put a “green light” on Elliott. The prosecution’s interpretation was both supported by evidence and reasonable.
“[A] trial court in a criminal case is required -- with or without a request -- to give correct jury instructions on the general principles of law relevant to issues raised by the evidence.” (People v. Mutuma (2006) 144 Cal.App.4th 635, 640.)
A conspiracy may be found where two or more people agree to commit a crime, they specifically intend both to agree and to commit the crime, and one of them performs an overt act in furtherance of their agreement. (People v. Austin (1994) 23 Cal.App.4th 1596, 1603, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856.) The agreement may be proved by circumstantial evidence, without showing a meeting or an express or formal agreement. (People v. Zamora (1976) 18 Cal.3d 538, 559.) The agreement may be inferred from the defendants’ conduct in mutually carrying out an illegal purpose, the nature of the acts committed, the relationship of the parties, and the interests of the alleged conspirators. (People v. Superior Court (Quinteros) (1993) 13 Cal.App.4th 12, 20.) An inference of a conspiracy may also be supported by, though not exclusively based on, the defendants’ membership in the same gang. (Ibid.) “[E]vidence of conspiracy may be admitted even if the defendant is not charged with the crime of conspiracy.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1134 (Rodrigues).)
“Once there is proof of the existence of the conspiracy there is no error in instructing the jury on the law of conspiracy.” (Rodrigues, supra, 8 Cal.4th at p. 1134 .) “To determine whether there was sufficient proof of a conspiracy in this case, we apply the following rules. ‘Although the existence of the conspiracy must be shown by independent proof [citation], the showing need only be prima facie evidence of the conspiracy. [Citation.] The prima facie showing may be circumstantial [citation], and may be by means of any competent evidence which tends to show that a conspiracy existed. [Citation.]’ (People v. Jourdain [(1980) 111 Cal.App.3d 396,] 405.) Furthermore, the independent proof required to establish the existence of a conspiracy may consist of uncorroborated accomplice testimony. (People v. Price (1991) 1 Cal.4th 324, 444; People v. Cooks (1983) 141 Cal.App.3d 224, 312.)” (Rodrigues, supra, 8 Cal.4th at p. 1134 .) “Evidence is sufficient to prove a conspiracy to commit a crime ‘if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy.’ [Citations.]” (Id. at p. 1135.)
The evidence before the trial court was sufficient to support instructing upon conspiracy as a theory of liability. Appellant and Binns were members of the same gang. They did not simply run into Elliott, but purposely went to Elliott’s apartment. Indeed, they went there twice – they returned 45 to 60 minutes after missing Elliott on their first attempt. During their brief stay in the apartment, one of the co-defendants shot Elliott four times. There was no evidence of an argument leading up to the shooting, and Elliott’s failure to draw the gun he carried in his waistband indicates that the shooting did not arise from a course of threats or escalating hostilities. Appellant and Binns then ran away, taking the murder weapon with them. They apparently did not take any of the ample, readily accessible money, drugs, and guns, thus demonstrating that robbery was not a motive and casting substantial doubt upon the possibility they went to the apartment to purchase drugs. Even without the recorded conversation, these facts would support a reasonable inference that appellant and Binns acted pursuant to a pre-existing plan to kill Elliott, which in turn assists in proving both conspiracy and aiding and abetting theories of liability. The recorded conversation strengthens the inference of a conspiracy with references to Baby G’s “green light,” payment to appellant and Binns, and the possible involvement of “Spider.”
Appellant was free to argue that his own interpretation of the “green light” portions of the conversation was more plausible, but he is incorrect in contending that the evidence was insufficient to support the court’s instruction.
3. Ineffective assistance of counsel: failure to object to admission of recorded statements pertaining to conspiracy
As noted in part 1, appellant did not object to the admission of any portion of his recorded conversation with Binns except references to a possible disposition. He thereby forfeited any claim that any portions of the conversation—including those pertaining to a “green light” given by Baby G—were inadmissible hearsay.
Appellant argues his trial attorney was ineffective for failing to interpose hearsay objections to the admission of those portions of the surreptitiously recorded conversation between appellant and Binns utilized to support the conspiracy theory. This contention was forfeited by appellant’s failure to brief the issue under a separate heading. (Cal. Rules of Court, rules 8.360(a) and 8.204(a)(1)(B); Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1504, fn. 2.) Appellant also forfeited his claim by failing to identify with any specificity the particular statement or statements within the lengthy recording to which counsel should have objected. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115; Culbertson v. R.D. Werner Co., Inc. (1987) 190 Cal.App.3d 704, 710.) To attempt to avert a future claim of ineffective assistance of appellate counsel, however, we nonetheless briefly address the contention with respect to Binns’s statement “Baby G... gave the green light.”
Given the prosecutor’s conspiracy theory, this statement was clearly admitted for the truth of the matter stated therein. It consists of two levels of out-of-court statements: Binns’s statement to appellant and an implied statement by Baby G through which he communicated the “green light.”
Binns’s statement to appellant was a statement by a party falling within the hearsay exception provided by Evidence Code section 1220. Although this is commonly called the “party admission” exception, “Evidence Code section 1220 covers all statements of a party, whether or not they might otherwise be characterized as admissions.” (People v. Horning (2004) 34 Cal.4th 871, 898, fn. 5.) The statement was thus admissible as to Binns under Evidence Code section 1220. Appellant could have, but did not, seek a limiting instruction regarding this admission.
Appellant also could have, but did not, object to admission of this and other portions of the recorded conversation as violating his confrontation rights. (Bruton v. United States (1968) 391 U.S. 123, 126-127, 88 S.Ct. 1620, and People v. Aranda (1965) 63 Cal.2d 518, 528-530 (Aranda).) His failure to so object forfeited this ground of exclusion. (People v. Hill (1992) 3 Cal.4th 959, 994, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046; People v. Stevens (2007) 41 Cal.4th 182, 198-199; People v. Mitcham (1992) 1 Cal.4th 1027, 1044.)
Baby G’s statement falls within the hearsay exception for a co-conspirator’s statement. (Evid. Code, § 1223.) This requires independent prima facie evidence of the existence of a conspiracy and independent evidence of the following three preliminary facts: (1) that the declarant was participating in the conspiracy at the time of the declaration; (2) that the declaration was in furtherance of the objective of that conspiracy; and (3) that at the time of the declaration, the party against whom the evidence is offered was participating—or would later participate—in the conspiracy. (Evid. Code, § 1223; People v. Leach (1975) 15 Cal.3d 419, 430, fn. 10.) None of these facts may be established by means of the statement itself, except insofar as its content reflects upon whether it was made in furtherance of the conspiracy. (Ibid.)
As addressed in the discussion of the propriety of instructing on conspiracy, there was prima facie evidence, apart from any statement made during the recorded conversation, of the existence of a conspiracy. Under the prosecution’s interpretation of the “green light” portions of the conversation, Baby G necessarily gave the “green light” to murder Elliott before anyone actually murdered Elliott. Thus, Baby G’s statement giving the “green light” was made while Baby G was participating in the conspiracy and before the objective of the conspiracy had been achieved. Baby G’s statement would clearly have been in furtherance of the objective of the conspiracy, in that his statement essentially set the conspiracy in motion. Finally, under the prosecution’s theory, appellant and Binns later participated in the conspiracy. Accordingly, Baby G’s statement met all of the requirements for admission under Evidence Code section 1223. The hearsay objection appellant contends his attorney should have made therefore has no merit. Appellant cannot show deficient performance, prejudice, or the absence of rational tactical purpose.
4. Instructional error: Failure to instruct with CALCRIM No. 418
Within the section of his brief pertaining to his claim that the trial court erred by instructing upon conspiracy, appellant argues the trial court erred by failing to instruct with CALCRIM No. 418 and, in the alternative, that his attorney was ineffective for failing to request this instruction. Appellant forfeited these contentions by failing to brief them under a separate heading. To attempt to avert a future claim of ineffective assistance of appellate counsel, however, we nonetheless briefly address the contentions.
CALCRIM No. 418 instructs the jury it may not consider a coconspirator’s out-of-court statement to prove the defendant’s guilt unless: (1) some evidence other than the statement itself proves the existence of a conspiracy to commit a crime at the time the statement was made; (2) the coconspirator was a member of and participated in the conspiracy at the time he or she made the statement; (3) the coconspirator made the statement to further the goal of the conspiracy; and (4) the statement was made before or while the defendant was participating in the conspiracy. The instruction thus essentially sets forth the requirements for admission of a co-conspirator’s statement. The use notes for CALCRIM No. 418 indicate that the instruction must be given sua sponte when statements have been admitted pursuant to Evidence Code section 1223.
Assuming, for the sake of argument, that the court erred by failing to instruct with CALCRIM No. 418, the error was nonetheless harmless. Instructional error that does not impair a federal constitutional right requires reversal only if it is reasonably probable that a properly instructed jury would have returned a verdict more favorable to the appellant. (People v. Rogers (2006) 39 Cal.4th 826, 875; People v. Watson (1956) 46 Cal.2d 818, 836.) If the jury adopted the prosecution’s interpretation of the “green light” statements and believed Baby G. actually authorized the murder of Elliott, the statement unquestionably met the requirements set forth in CALCRIM No. 418 for the reasons set forth in the preceding section. (People v. Prieto (2003) 30 Cal.4th 226, 251-252 [addressing failure to instruct with predecessor instruction, CALJIC No. 6.24].) If the jury did not believe Baby G was involved in a conspiracy to kill Elliott, the statements about Baby G giving the “green light” were essentially irrelevant to the charges, and it would not matter whether or not the jury considered the statements. Accordingly, it is not reasonably probable appellant would have obtained a more favorable verdict if the trial court had instructed with CALCRIM No. 418.
5. Instructional error: reasonable doubt instruction (CALCRIM Nos. 200 and 220)
Appellant contends that CALCRIM Nos. 200 and 220 “improperly led the jury to believe that the lack of evidence on a point was insufficient to find reasonable doubt of the charge.” This contention has been rejected in every reported decision in which it has been raised. (See, e.g., People v. Zavala (2008) 168 Cal.App.4th 772, 781; People v. Garelick (2008) 161 Cal.App.4th 1107, 1118-1119; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-1238; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510.) We agree with the analyses and conclusions set forth in those decisions. No juror would reasonably interpret the language in CALCRIM Nos. 200 and 220 as precluding consideration of the absence of evidence when determining whether the prosecution proved its case beyond a reasonable doubt. Rather, the instructions merely inform the jury it cannot consider matters outside of the evidence offered at trial.
6. Cumulative error
Appellant contends the cumulative effect of the claimed errors requires reversal. However, the only arguable error was the trial court’s failure to instruct with CALCRIM No. 418. Appellant’s cumulative error claim therefore simply reasserts his claim regarding that instruction, which we have rejected.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.
“To prove that a defendant was a member of a conspiracy in this case, the People must prove that:
“1. A defendant intended to agree and did agree with the other defendant to commit murder;
“2. At the time of the agreement, that defendant and the other alleged member of the conspiracy intended that one or more of them would commit murder;
“3. One of the defendant [sic] committed at least one of the following overt acts to accomplish that murder: obtain a gun and travel to the victim’s residence
“AND
“4. At least one of these overt act was committed in California.
“To decide whether a defendant committed these overt acts, consider all of the evidence presented about the acts.
“To decide whether a defendant and the other alleged member of the conspiracy intended to commit murder, please refer to the separate instructions that I will give you on that crime.
“The People must prove that the members of the alleged conspiracy had an agreement and intent to commit murder. The People do not have to prove that any of the members of the alleged conspiracy actually met or came to a detailed or formal agreement to commit that crime. An agreement may be inferred from conduct if you conclude that members of the alleged conspiracy acted with a common purpose to commit the crime.
“An overt act is an act by one or more of the members of the conspiracy that is done to help accomplish the agreed upon crime. The overt act must happen after the defendant has agreed to commit the crime. The overt act must be more than the act of agreeing or planning to commit the crime, but it does not have to be a criminal act itself.
“You must all agree that at least one overt act was committed in California by at least one alleged member of the conspiracy, but you do not have to all agree on which specific overt act or acts were committed or who committed the overt act or acts.
“You must decide as to each defendant whether he or she was a member of the alleged conspiracy.
“The People contend that the defendants conspired to commit murder. You may not find a defendant guilty under a conspiracy theory unless all of you agree that the People have proved that the defendant conspired to commit at least one of these crimes, and you all agree which crime he conspired to commit. You must also all agree on the degree of the crime.
“Someone who merely accompanies or associates with members of a conspiracy but who does not intend to commit the crime is not a member of the conspiracy.
“Evidence that a person did an act or made a statement that helped accomplish the goal of the conspiracy is not enough, by itself, to prove that the person was a member of the conspiracy.”