Opinion
F073663
10-22-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY DAJUAN YATES, Defendant and Appellant.
Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel Bernstein, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DF011989A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge. Paul Kleven, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel Bernstein, Amanda D. Cary and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant Anthony Dajuan Yates, a state prisoner, was caught by correctional staff with a bindle of marijuana. He was convicted by jury of unauthorized possession of a controlled substance in prison, in violation of Penal Code section 4573.6. In a bifurcated proceeding, the trial court found true that defendant suffered a prior strike conviction within the meaning of the Three Strikes law. (§§ 667, subd. (c)-(j), 1170.12, subds. (a)-(e).) The trial court sentenced defendant to the lower term of two years, doubled to four years based on the prior strike conviction.
All further statutory references are to the Penal Code unless otherwise specified.
Although not relevant to the issues raised on appeal, the trial court designated the conviction in this case as the principal in-prison offense. In a separate Lassen County case, defendant was sentenced to one year for possession of a weapon in prison (§ 4502, subd. (a)), which the court designated as the subordinate in-prison offense. The court ordered the aggregate five-year prison term to run consecutive to the sentence on defendant's underlying conviction.
On appeal, defendant claims that during jury selection, the prosecutor committed reversible error under Batson v. Kentucky (1986) 476 U.S. 79 (Batson) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) when she allegedly exercised peremptory challenges to excuse three African-American jurors based on race, in violation of the federal and state Constitutions. Defendant also claims the trial court abused its discretion when it excluded testimony relating to a correctional officer's alleged prior inconsistent statement, resulting in prejudice to him. (Evid. Code, § 1235.)
The People dispute defendant's entitlement to relief on either claim.
We agree with the People. We find no abuse of discretion in denying defendant's Batson/Wheeler motion or in excluding one of defendant's proposed witnesses from testifying on the ground there was no prior inconsistent statement. We therefore affirm the judgment.
FACTUAL SUMMARY
On the afternoon of June 2, 2013, at Kern Valley State Prison, Rick Stinson, a correctional officer assigned to the yard, was preparing to assist Jason Gaddis, a correctional officer assigned to the visiting room. Visitation had just ended and the inmates, including defendant, needed to undergo strip searches prior to their release to the yard. Stinson testified that as he entered the visiting room, he noticed defendant had his hands down the back of his pants and the pants were moving as defendant tried to put something up his anus. Stinson explained that attempts by inmates to smuggle in contraband, usually narcotics or cell phones, is common and they usually do so by hiding the contraband in their anal cavity.
Stinson notified Gaddis he needed assistance and they took defendant from the visiting room to the adjacent inmate processing area, where the strip searches take place. As defendant, who was facing away from them, removed his boxer shorts, Stinson and Gaddis saw rubber material protruding from his anus. Stinson ordered defendant to remove the object, which was a black bindle inside a condom, and hand it to him. Defendant complied. The package, which was approximately seven inches long and two inches wide, was the largest Gaddis had ever seen. No other contraband was found on defendant.
Gaddis testified most bindles are two to three inches in length.
Stinson and Gaddis thereafter escorted defendant to a holding cell and Gaddis returned to the visiting room to process and release the remaining inmates. Stinson testified that defendant stated to him, "Stinson, this is for personal use because we're going on lockdown." When Stinson wrote his report later that day, he neither included defendant's statement nor authored a subsequent supplemental report including the statement.
At trial, Stinson testified that he was certain of defendant's statement and he denied forgetting about it. He explained he did not include the statement in his report because he did not consider it necessary given that inmates always cite personal usage and the bindle was large. Stinson explained that if inmates are caught with drugs for sale, they are locked up in the administrative segregation unit (ad-seg). If they are caught with drugs for personal use, they get written up but stay on the yard, a consequence preferable to placement in ad-seg. Stinson also testified that just prior to an earlier court proceeding in May 2015, he notified the then-assigned prosecutor of defendant's statement. He testified that he told the prosecutor about the statement at that time because he thought the defense might bring it up and he did not want her to be caught off guard. He did not, however, think it was necessary to write a supplemental report to include the statement.
The trial took place in March 2016.
After defendant was placed in the holding cell, Stinson opened the bindle in the condom, which in turn contained four smaller bindles. In total, the four bindles contained what was later confirmed to be 63.62 grams of marijuana. Gaddis testified that a useable amount is defined as a single use and in prison, a typical useable amount is half of one gram. As such, the bindle defendant was caught with contained the equivalent of approximately 128 single usages, which Gaddis testified is inconsistent with personal use.
The circumstances surrounding defendant's receipt of the drug bindle in the visiting room were unknown. Inmates are strip searched prior to visitation and Gaddis did not see anyone hand anything to defendant. Although there are four cameras in the visiting room, one in each corner, there was no video recording of the visitation on June 2, 2013. Lieutenant Chenelo described an outdated camera system plagued with problems. The system was not operable for long periods of time, including in 2013, and even when it was operable, its data was lost every time the generators were tested or there was otherwise a loss of power. Since the generators were tested once or twice a month, the data was saved for only 30 days at most.
There are no cameras in the inmate processing area because that is where strip searches occur.
In addition, the system was operated by the investigative services unit (ISU) and ISU officers did not work on weekends. If the camera system was going to run over the weekend, it had to be manually turned on and this did not occur unless ISU specifically planned to target someone. Chenelo, who was assigned to ISU, testified there was no plan to target anyone that weekend and it was his opinion that, based on the limitations surrounding the camera system, no recording was made of visitation on June 2, 2013. He also testified that even if a recording had been made, it would have been deleted within 30 days due to the generator testing and he explained that there was no way to download the data to compact disc for preservation.
DISCUSSION
I. Batson/Wheeler Claim
A. Applicable Legal Principles
Courts have long held that "'[b]oth the federal and state Constitutions prohibit any advocate's use of peremptory challenges to exclude prospective jurors based on race. [Citations.] Doing so violates both the equal protection clause of the United States Constitution and the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the California Constitution.'" (People v. Parker (2017) 2 Cal.5th 1184, 1210-1211 (Parker), quoting People v. Lenix (2008) 44 Cal.4th 602, 612 (Lenix).) The United States Supreme Court has recognized "[t]he Fourteenth Amendment's mandate that race discrimination be eliminated from all official acts and proceedings of the State is most compelling in the judicial system." (Powers v. Ohio (1991) 499 U.S. 400, 415.) This is so because "[i]t is not only litigants who are harmed when the right to trial by impartial jury is abridged. Taints of discriminatory bias in jury selection—actual or perceived—erode confidence in the adjudicative process, undermining the public's trust in courts." (People v. Gutierrez (2017) 2 Cal.5th 1150, 1154 (Gutierrez), citing Miller-El v. Dretke (2005) 545 U.S. 231, 238 & Powers v. Ohio, supra, at p. 412.) For this reason, "race is irrelevant to a defendant's standing to object to the discriminatory use of peremptory challenges" and although here defendant and the excused jurors share the same racial identity, a Batson/Wheeler challenge may be raised even if the defendant does not share the same racial identity as the excused jurors. (Powers v. Ohio, supra, at pp. 415-416; accord, Parker, supra, at p. 1212; People v. Burgener (2003) 29 Cal.4th 833, 863.)
With respect to the selection of a jury, "'[t]here is a rebuttable presumption that a peremptory challenge is being exercised properly, and the burden is on the opposing party to demonstrate impermissible discrimination.' [Citation.] 'A three-step procedure applies at trial when a defendant alleges discriminatory use of peremptory challenges. First, the defendant must make a prima facie showing that the prosecution exercised a challenge based on impermissible criteria. Second, if the trial court finds a prima facie case, then the prosecution must offer nondiscriminatory reasons for the challenge. Third, the trial court must determine whether the prosecution's offered justification is credible and whether, in light of all relevant circumstances, the defendant has shown purposeful race discrimination. [Citation.] "The ultimate burden of persuasion regarding [discriminatory] motivation rests with, and never shifts from, the [defendant]."'" (Parker, supra, 2 Cal.5th at p. 1211; accord, Gutierrez, supra, 2 Cal.5th at pp. 1158-1159.)
B. Procedural Background
1. Overview of Jury Selection Process
Trial courts have broad discretion over jury selection and the selection process varies. (People v. Whalen (2013) 56 Cal.4th 1, 29-30, disapproved on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17; Lenix, supra, 44 Cal.4th at p. 608.) In this case, the combined venire panel contained approximately 50 to 60 jurors. A group of 18 potential jurors was selected and examined through voir dire by the court and counsel. Following each voir dire session, jurors were selected from the venire panel to replace those jurors excused by stipulation, for cause or pursuant to the parties' peremptory challenges.
Although the trial court declined to make an express finding, the record suggests there were only three African-American jurors in the venire panel, all of whom were seated and subject to voir dire examination. C.H., an African-American man, was a member of the initial 18-member panel. After the first round of excusals, K.F., an African-American woman, was summoned from the venire panel and examined. In the next round of excusals, the prosecutor excused C.H. via peremptory challenge. After defense counsel and the prosecutor each exercised another peremptory challenge, the defense accepted the panel. The prosecutor then excused K.F. and six more potential jurors, including L.P., were seated. In the third and final round of excusals, the prosecutor excused L.P. via peremptory challenge, at which time defendant made his Batson/Wheeler motion.
The trial court found defendant had met his initial burden of demonstrating a prima facie case and the prosecutor made a record of her justifications for excusing C.H., K.F. and L.P. The court then made a finding the reasons were race neutral and denied the Batson/Wheeler motion.
2. Summary of Relevant Voir Dire
a. C.H.
C.H. was an instructional aid for special needs kids and his wife was a recordkeeper at Wasco State Prison. He had two adult children and had not previously served on a jury. During voir dire, C.H. stated that although his wife worked at a prison, he was not friends with any correctional officers. In response to defense counsel's inquiry, he agreed officers can make mistakes and said honesty was individual; some officers could be telling the truth and some could be lying. In response to the prosecutor's questions, C.H. related a negative experience he had with law enforcement 15 years earlier when a sheriff's deputy mistook him for his brother and chased him down in a store. C.H. said the deputy kept calling him and following him. Another deputy told the pursuing deputy that C.H. was not his brother. C.H. said he finally turned around and asked, "[W]hat is your problem with my brother? You know, what is the problem?" C.H. described the negative experience as positive as well because he and the deputy later became friends.
C.H. also related that at the time, there was a "really big issue" in Wasco with the sheriff's department because African-American men were getting stopped for no reason and it was "a very terrible experience." He explained young African-American men walking down the street would find themselves stopped, placed against a wall and searched by law enforcement without reason. C.H. said his experience with the deputy he later became friends with helped open the door to a dialogue about the conduct of the sheriff's department toward young African-American men, and he was part of a coalition of churches and community leaders that met and talked with law enforcement. The coalition lasted approximately five years and was helpful in resolving some issues.
b. K.F.
After the first round of challenges, K.F. was selected to join the panel. She was a nurse with an adult son and a grandson. She previously served as a juror in one criminal case and the jury reached a verdict. She stated that law enforcement officers are capable of lying and they back each other up. When the panel was asked about arrests, charges or convictions, she related that her son pled guilty to possession of a controlled substance, but he did not do drugs and the case was not fairly resolved. When the panel was asked about experiences as a crime victim, she stated her home had been burglarized, but the crime was not investigated and when the trial court asked if she had an issue with that, she answered affirmatively.
When defense counsel questioned how she would assess a witness's testimony regarding a statement someone made to the witness, K.F. said that was hearsay and she could not assess it. She subsequently said if an individual took the stand and testified about someone else's statement, she would not consider it. When the prosecutor followed up on this line of questioning, K.F. reiterated she would not consider a hearsay statement because it is not factual, and after being informed by the prosecutor that the definition of hearsay was a legal judgment, she said, "Okay. I didn't know hearsay was a legal judgment. [¶] But if somebody else—if somebody comes to me and said such and such said something, I don't take—unless it's—I hear with my own ears, in that case—now, if—if later down the line there's supporting evidence that this was actually true, then of course it's—then it comes back into consideration. But until then." The prosecutor explained this was an important issue because K.F. would not have personally heard the evidence. K.F. responded, "Well, exactly. But I also don't have any other evidence supporting that statement—if it's the first witness."
At that point, the court intervened and explained such evidence is admissible under certain circumstances. K.F. said she would then consider it. The prosecutor followed up with K.F. and commented K.F. still seemed skeptical. K.F. said, "Well, you know, like you said, I'm not gonna—I'm not gonna hear it with my own two ears, but the person that said it, how come that person had said it unless you're talking about the defendant, of course. [¶] You know, if—how come they're not here to say it?"
c. L.P.
The prosecutor thereafter excused C.H. and K.F. L.P. then filled a seat on the panel. L.P. was a single social worker with no children. She had previously served as a juror on one criminal case, but the jury deadlocked ten to two and she was one of the two. She stated she was a crime victim but did not want to discuss it in open court. She also stated law enforcement officers were not more likely to tell the truth and, after a long pause that was noted in the record, stated they were not less likely to tell the truth, either.
L.P. related two negative experiences with law enforcement that occurred approximately 10 years earlier, in very close temporal proximity to the crime committed against her. Outside the presence of the other jurors, L.P. later explained she was the victim of rape. Prior to disclosing the nature of the crime against her, she stated in open court that due to the "incident" that had just occurred, she did not want to drive so her friend was driving her car. She was unaware there was an issue with her friend's driver's license and they were stopped at a checkpoint. L.P. had her driver's license and car insurance information with her and she explained what had just happened to her, but officers impounded her car anyway, which left a bad taste in her mouth.
A few days later, after she retrieved her car, she was pulled over and informed that someone in a car like hers had hit a bicyclist. She again explained everything she had gone through but the female officer "was real nasty." The prosecutor excused L.P. during the next and final challenge round, and defendant made his Batson/Wheeler motion as to C.H., K.F. and L.P.
3. Prosecutor's Justifications for Excusing C.H., K.F. and L.P.
With respect to C.H., the prosecutor stated that although C.H. was friendly and she "liked him a great deal," she excused him because of his negative experiences with law enforcement. The prosecutor explained that while C.H. said his own negative experience with law enforcement ended positively, she was not so sure and thought "he was trying to convince us a little bit too hard that it ended up positively." Additionally, she cited his extended community activism for five years, which was prompted by the perception that law enforcement was mistreating young African-American men based on race.
The prosecutor stated the main reason she excused K.F. was because K.F. believed her son, whom she said did not do drugs, was wrongfully convicted of a drug crime. Additionally, the prosecutor pointed out the legal conclusions drawn by K.F. with respect to hearsay evidence and stated she was concerned K.F. might draw such conclusions during trial.
Finally, the prosecutor stated she excused L.P. because she was the victim of a rape and obviously traumatized by the experience. As well, shortly after the rape, L.P. was stopped by police and treated rudely, and her car was impounded even though she told police what happened to her. A few days later, she had another negative experience with law enforcement when she was pulled over by a female officer, whom she also told about the crime against her and whom she described as "nasty." Finally, the prosecutor said L.P. hesitated multiple times when answering questions, including when the court asked her whether her experience was going to affect her. The prosecutor expressed doubt L.P. could put something so violent out of her mind, compounded by her mistreatment by law enforcement.
4. Defense Position
With respect to C.H., defense counsel argued that he would characterize C.H.'s experience with law enforcement as positive because he and the deputy who confused him with his brother became friends. He also argued that issue had nothing to do with prison and it occurred 15 to 20 years ago.
Regarding K.F., defense counsel expressed disbelief as to the prosecutor's stated concern regarding the exchange over hearsay evidence. Counsel argued K.F. was confused and the issue was cleared up. He also pointed out that while K.F. believed her son was wrongfully convicted, that incident occurred in Los Angeles.
With respect to L.P., counsel argued that the prosecutor's excusal of her because she was a rape victim did not make sense in a drug case or from a prosecutorial standpoint. He also argued L.P. was satisfied with the handling of her rape case and, as far as he could tell, the problem at the checkpoint was with her friend rather than Bakersfield Police Department (BPD) and she did not have any "lingering problems with BPD." Counsel disputed any interpretation of the record as indicating L.P. explained to the officers involved in the two incidents that she was a rape victim. Counsel conceded that the record was clear the female officer in the second incident was rude to L.P., but he pointed out L.P. stated she could be fair and impartial.
As to all three jurors, defense counsel argued that they did not have any negative experiences with the California Department of Corrections and Rehabilitation. He also pointed out that Juror No. 4067612 reported a negative experience with law enforcement when he returned a wallet and was still upset about it but nevertheless remained on the jury.
5. Trial Court's Ruling
In denying defendant's Batson/Wheeler motion, the trial court ruled as follows:
"Okay. Let's assume for purposes of this discussion that [L.P.], [C.H.], and [K.F.] are all Asian-Americans. Would there be a neutral, non protected class basis—or Caucasian Americans or, whatever. Would there be a basis, or is there a basis articulated by the prosecutor to excuse each of them? And, as [defense counsel] said, considering also, [Juror No. 4067612] still remains on the jury.
"The theme that runs with all three is profiling. [L.P.] indicated, at least in the second run-in that she had with the Bakersfield Police Department, and intimated that there was profiling by police based on what she looked like.
"Her body language here in court, her hesitation responding, the fact that she had two negative experiences with law enforcement, those are all non protected class reasons that she could be excused. So I don't find that there's a problem in regard to the People excusing [L.P.] In regard to whether she was a victim of rape or not, I don't quite understand that argument, but that doesn't really matter because there were other bases articulated.
"In regard to [K.F.], she was combative, she didn't want to answer the questions directly, she talked over people questioning her including me. She clearly was unhappy about the fact that her son was arrested, charged and either pled or went to trial on a drug crime and with kind of the inference that there was profiling as well and that the cops lied.
"One of the areas of inquiry by both counsel, but particularly the defense, so far of the prospective jurors has to do with honesty and veracity of law enforcement officers or witnesses in general.
"[K.F.], the reason articulated by the People is a valid reason unrelated to her status as a member of a protected class.
"In regard to [C.H.], he was a really nice guy. He appeared to be open and honest and answered questions and also intimated that he believed that there was a problem with the Sheriff's Department in Wasco where he resides for a number of years and that that had to do with stopping young African-American males for no basis at all. That sounds like profiling to me.
"That he was involved directly in trying to combat that and to get more direct communication between certain members of the community in Wasco, and it sounds like through a church, with those Sheriff's deputies. That's also a basis to exclude him that would not be due to his ethnicity, race, or being a member of a protected class.
"The motion from the defense is denied."
C. Batson/Wheeler's Three Step Process
1. Prima Facie Case
At the first step of the Batson/Wheeler process, "the ... movant must demonstrate a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. The moving party satisfies this first step by producing '"evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred."'" (Gutierrez, supra, 2 Cal.5th at p. 1158; accord, Parker, supra, 2 Cal.5th at p. 1211.) Where, as here, the trial court found a prima facie showing and evaluated the prosecutor's justifications, "the adequacy of the prima facie showing becomes moot" and we focus on the third step. (People v. Smith (2018) 4 Cal.5th 1134, 1147 (Smith); accord, People v. Melendez (2016) 2 Cal.5th 1, 14-15; People v. Silva (2001) 25 Cal.4th 345, 384; People v. Arellano (2016) 245 Cal.App.4th 1139, 1157.)
2. Prosecutor's Explanation
At the second step of the process, the burden shifts to the prosecutor to "provide 'a "clear and reasonably specific" explanation of [her] "legitimate reasons" for exercising the challenges.' [Citation.] In evaluating a trial court's finding that a party has offered a neutral basis—one not based on race, ethnicity, or similar grounds—for subjecting particular prospective jurors to peremptory challenge, we are mindful that '"[u]nless a discriminatory intent is inherent in the prosecutor's explanation,"' the reason will be deemed neutral." (Gutierrez, supra, 2 Cal.5th at p. 1158.) The standard imposed is not exacting and "does not demand an explanation that is persuasive, or even plausible. 'At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral.'" (Purkett v. Elem (1995) 514 U.S. 765, 767-768; accord, Gutierrez, supra, at p. 1168.) "'[E]ven a "trivial reason" if genuine and neutral, will suffice.'" (Lenix, supra, 44 Cal.4th at p. 613.)
In this case, the prosecutor's reasons for excusing C.H., K.F., and L.P. were facially neutral and defendant does not contend otherwise.
3. Trial Court's Evaluation
a. Standard of Review
At the third and final step, the trial court must "evaluate[] the credibility of the prosecutor's neutral explanation." (Gutierrez, supra, 2 Cal.5th at p. 1168; accord, Lenix, supra, 44 Cal.4th at p. 613; People v. Silva, supra, 25 Cal.4th at p. 385.) "In order to prevail, the movant must show it was '"more likely than not that the challenge was improperly motivated."' [Citation.] This portion of the Batson/Wheeler inquiry focuses on the subjective genuineness of the reason, not the objective reasonableness. [Citation.] At this third step, the credibility of the explanation becomes pertinent. To assess credibility, the court may consider, '"among other factors, the prosecutor's demeanor; ... how reasonable, or how improbable, the explanations are; and ... whether the proffered rationale has some basis in accepted trial strategy."' [Citations.] To satisfy [himself] that an explanation is genuine, the presiding judge must make 'a sincere and reasoned attempt' to evaluate the prosecutor's justification, with consideration of the circumstances of the case known at that time, [his] knowledge of trial techniques, and [his] observations of the prosecutor's examination of panelists and exercise of for-cause and peremptory challenges. [Citation.] Justifications that are 'implausible or fantastic ... may (and probably will) be found to be pretexts for purposeful discrimination.' [Citation.] We recognize that the trial court enjoys a relative advantage vis-à-vis reviewing courts, for it draws on its contemporaneous observations when assessing a prosecutor's credibility." (Gutierrez, supra, at pp. 1158-1159; accord, Lenix, supra, at pp. 612-613.)
On appeal, "[w]e review a trial court's determination regarding the sufficiency of tendered justifications with '"great restraint."' [Citation.] We presume an advocate's use of peremptory challenges occurs in a constitutional manner. [Citation.] When a reviewing court addresses the trial court's ruling on a Batson/Wheeler motion, it ordinarily reviews the issue for substantial evidence. [Citation.] [However, a] trial court's conclusions are entitled to deference only when the court made a 'sincere and reasoned effort to evaluate the nondiscriminatory justifications offered.' [Citation.] What courts should not do is substitute their own reasoning for the rationale given by the prosecutor, even if they can imagine a valid reason that would not be shown to be pretextual. '[A] prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.... If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.'" (Gutierrez, supra, 2 Cal.5th at p. 1159; accord, Lenix, supra, 44 Cal.4th at pp. 613-614; People v. Silva, supra, 25 Cal.4th at pp. 385-386.)
b. Analysis
1) Statistical Consideration
As we explain, post, we conclude the trial court's findings are supported by substantial evidence and it did not abuse its discretion in denying defendant's Batson/Wheeler motion. We begin with the recognition that the prosecutor dismissed all three—or 100 percent—of the African-American panel members and it appears no other African-American jurors remained in the venire panel. As well, defendant points out that the prosecutor used three out of eight peremptory challenges to excuse C.H., K.F. and L.P. However, where there are few jurors in the group subject to the Batson/Wheeler challenge, the ability to draw an inference of discrimination from the excusal of some or even all is impacted. (Parker, supra, 2 Cal.5th at p. 1212; accord, People v. Arellano, supra, 245 Cal.App.4th at p. 1159.) As the California Supreme Court explained in a case involving the excusal of two out of three African-America jurors, "'"[T]he small absolute size of this sample makes drawing an inference of discrimination from this fact alone impossible. '[E]ven the exclusion of a single prospective juror may be the product of an improper group bias. As a practical matter, however, the challenge of one or two jurors can rarely suggest a pattern of impermissible exclusion.'"'" (Parker, supra, at p. 1212, quoting People v. Bonilla (2007) 41 Cal.4th 313, 343; accord, People v. Woodruff (2018) 5 Cal.5th 697, 750 (Woodruff).) Such is the case here.
Further, "removing members of an identifiable group, where the defendant is a member of that group, is a fact that 'may prove particularly relevant' to the first-stage inquiry. [Citation.] But a prima facie case of discrimination can be established only if the totality of the relevant facts gives rise to an inference of discriminatory purpose. A court, in particular, may also consider nondiscriminatory reasons 'that are apparent from and "clearly established" in the record [citations] and that necessarily dispel any inference of bias.'" (People v. Zaragoza (2016) 1 Cal.5th 21, 43, quoting People v. Scott (2015) 61 Cal.4th 363, 384; accord, Smith, supra, 4 Cal.5th at p. 1147.) We conclude that here, as discussed next, "[a]ny inference of bias is '"necessarily dispel[led]"' because nondiscriminatory reasons for the prosecutor's peremptory strikes of [C.H., K.F., and L.P.] 'are apparent from and clearly established in the record.'" (Woodruff, supra, 5 Cal.5th at p. 751, quoting People v. Reed (2018) 4 Cal.5th 989, 1000 (Reed).)
2) Record Expressly Supports Justifications Advanced by Prosecutor
The trial court identified experiences with racial profiling by law enforcement as the common thread linking the three excused jurors. While we agree with defendant that this characterization did not accurately summarize the prosecutor's concerns with K.F. and L.P., it remains that all three excused jurors related negative experiences with law enforcement or the criminal justice system, which the prosecutor cited as a basis for excusal. It is well settled that "[a] prospective juror's distrust of the criminal justice system is a race-neutral basis for his excusal" (People v. Clark (2011) 52 Cal.4th 856, 907; accord, Reed, supra, 4 Cal.5th at p. 1001), as is "'a prospective juror's negative experience with law enforcement'" (Lenix, supra, 44 Cal.4th at p. 628; accord, Reed, supra, at p. 1001). Moreover, the trial court's thematic summarization notwithstanding, the court did not overlook the reasons articulated by the prosecutor. (Smith, supra, 4 Cal.5th at pp. 1157-1158.)
In Smith, the California Supreme Court recently cautioned against such an approach, explaining, "This 'laundry list' approach [citation] carries a significant danger: that the trial court will take a shortcut in its determination of the prosecutor's credibility, picking one plausible item from the list and summarily accepting it without considering whether the prosecutor's explanation as a whole, including offered reasons that are implausible or unsupported by the prospective juror's questionnaire and voir dire, indicates a pretextual justification. A prosecutor's positing of multiple reasons, some of which, upon examination, prove implausible or unsupported by the facts, can in some circumstances fatally impair the prosecutor's credibility. [Citation.] In assessing credibility at the third stage of a Batson/Wheeler decision, trial courts should attempt to evaluate the attorney's statement of reasons as a whole rather than focus exclusively on one or two of the reasons offered." (Smith, supra, 4 Cal.5th at pp. 1157-1158.) However, the record does not suggest that in this case, the trial court "took any shortcut in evaluating the prosecutor's credibility." (Id. at p. 1158.)
Turning first to C.H., the prosecutor passed on him initially, using three peremptory challenges in the first round to excuse other jurors and then using her fourth peremptory challenge in the second round to excuse him. (See Gutierrez, supra, 2 Cal.5th at p. 1170 ["[P]asses while a specific panelist remains on the panel '"strongly suggest[] that race was not a motive"' in challenged strikes."].) Although he stated his initially negative experience with law enforcement ended positively when he later became friends with the deputy, the prosecutor perceived C.H. as trying too hard to convince them of this. Moreover, C.H.'s perception that law enforcement was profiling or otherwise mistreating young African-American males made a strong enough impression that it motivated him to engage in years-long community activism targeting that specific issue.
Given the circumstances underlying defendant's offenses, the prosecutor's case hinged on the testimony of law enforcement witnesses; there were no civilian witnesses to the crime. The prosecutor could have reasonably concluded that C.H.'s negative experiences with law enforcement, evidenced by his personal targeting by an officer and by his concern with the targeting of young African-American men in the community, ran sufficiently deep and was sufficiently longstanding to disqualify him as a juror.
Defendant casts C.H. as an "exemplary juror" and asserts that his "laudable, voluntary efforts over 5 years to reduce profiling in his community cannot be considered a justifiable explanation for striking him, or one based on any accepted trial strategy." The prosecutor and the trial court described C.H. in positive terms, and activism aimed at bettering a community is certainly laudable. However, this does not compel the conclusion that the prosecutor's concerns were unjustified and the excusal discriminatory. To the contrary, C.H.'s community activism related directly to what he perceived as law enforcement's mistreatment of young African-American men vis-à-vis racial profiling. The prosecutor was not required to ignore the context in which C.H.'s activism occurred and we reject defendant's contrary argument.
With respect to K.F., she stated her son did not do drugs and she believed he was wrongfully convicted of drug possession. An additional justification for excusing her was her response to questions regarding hearsay evidence. Although K.F. stated she could follow the law as instructed, her skepticism regarding hearsay evidence that was not corroborated by additional evidence is apparent from the record. As we have stated, a close family member's negative experience with the criminal justice system is a legitimate ground for excusal, as is concern that a potential juror cannot or will not follow the law.
Finally, the prosecutor could have reasonably concluded that L.P.'s back-to-back negative experiences with law enforcement, which is a sufficient ground to justify her excusal, took on a heightened dimension by virtue of the fact that they occurred shortly after she was the victim of a violent and particularly sensitive crime and that they occurred despite the fact she informed the involved officers of the crime against her. During the course of the first incident, officers impounded L.P.'s car even though she had her license and registration with her and she explained the situation to them. The second incident involved an officer L.P. described as "real nasty." The prosecutor could have decided that this combination of events rendered L.P. unsuitable to serve as a juror because it left her with a strong negative impression of law enforcement.
At trial, defense counsel argued the record did not suggest L.P. told officers she had been a crime victim. Defendant does not advance that argument on appeal, but we note the record supports the prosecutor's position that L.P told officers what had happened to her and they nevertheless impounded her car and treated her rudely.
The prosecutor also pointed out that L.P. hesitated multiple times in responding to questions and specifically hesitated before responding to the court's inquiry whether she could put the negative experiences with law enforcement out of her mind. The prosecutor's concern over this issue, too, finds express support in the record and we note the prosecutor specifically questioned L.P. regarding her hesitation during voir dire.
In sum, the justifications advanced by the prosecutor to explain her excusal of C.H., K.F., and L.P. find express support in the record of voir dire. They also constitute legitimate, race-neutral bases for the exercise of peremptory challenges.
3) Claim Trial Court Substituted Reasoning
In advancing his Batson/Wheeler claim on appeal, defendant focuses on statements made by the trial court in evaluating the prosecutor's justifications and claims the trial court's evaluation was not sincere and reasoned. Defendant criticizes the trial court for describing racial profiling as the common denominator shared by C.H., K.F. and L.P., and for supplying its own reasons supporting the excusal of the jurors. We do not agree with these criticisms.
It is well established that "'[w]hen the prosecutor's stated reasons are both inherently plausible and supported by the record, the trial court need not question the prosecutor or make detailed findings.'" (People v. Williams (2013) 56 Cal.4th 630, 653; accord, People v. Hardy (2018) 5 Cal.5th 56, 76 (Hardy).) "'Some neutral reasons for a challenge are sufficiently self-evident, if honestly held, such that they require little additional explication.'" (Hardy, supra, at p. 77, quoting Gutierrez, supra, 2 Cal.5th at p. 1171.) Such is the situation here.
As well, as previously stated, neither the trial courts nor appellate courts may "substitute their own reasoning for the rationale given by the prosecutor, even if they can imagine a valid reason that would not be shown to be pretextual. '[A] prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.... If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.'" (Gutierrez, supra, 2 Cal.5th at p. 1159, quoting Miller-El v. Dretke, supra, 545 U.S. at p. 252.) Notwithstanding defendant's claim to the contrary, we are not persuaded this is what occurred here.
We have already addressed the court's comment that the excusals shared racial profiling in common. That this initial comment by the trial court did not accurately summarize the prosecutor's concerns with K.F. and L.P. does not compel a conclusion that the trial court substituted its own reasons for those given by the prosecutor; the record demonstrates this was not the case. The prosecutor's reasons were self-evident and supported by the record, as discussed, and those reasons were addressed by the court.
Regarding the trial court's comments about K.F.'s combative demeanor and L.P.'s unspecified body language, the court did not raise demeanor or body language as an independent reason justifying excusal of K.F. and L.P. and we reject defendant's contrary argument. In our view, the trial court's comments were made in the context of considering K.F.'s and L.P.'s negative experiences with law enforcement, K.F.'s skepticism toward hearsay evidence, and L.P.'s hesitation in responding. The same is true of the court's comment that K.F.'s statements suggested an inference that the police were lying. This comment did not identify an independent basis for excusal but instead related to K.F.'s statement that her son did not do drugs and was wrongfully convicted of a drug crime.
With respect to the prosecutor's reference to L.P.'s status as a crime victim, the trial court expressed a lack of understanding as to that basis but dismissed it in light of other bases articulated. However, "'[t]he inquiry is focused on whether the proffered neutral reasons are subjectively genuine, not on how objectively reasonable they are. The reasons need only be sincere and nondiscriminatory.'" (Hardy, supra, 5 Cal.5th at p. 76, quoting People v. Melendez, supra, 2 Cal.5th at p. 15.) The prosecutor expressed concern over the fact that L.P. experienced such an obviously traumatizing, violent and intimate crime. Whether it was objectively reasonable or not, nothing in the record suggests that the reason was either insincere or discriminatory, or that the trial court viewed it as such. Moreover, the prosecutor also stated L.P.'s traumatization was compounded by her negative treatment by law enforcement. This suggests the prosecutor viewed these factors in combination rather than in isolation.
4) Comparative Juror Analysis
Finally, "'[e]vidence of comparative juror analysis must be considered in the trial court and even for the first time on appeal if relied upon by the defendant and the record is adequate to permit the urged comparisons.'" (Woodruff, supra, 5 Cal.5th at p. 754, quoting Lenix, supra, 44 Cal.4th at p. 622; accord, Gutierrez, supra, 2 Cal.5th at p. 1174.) In this case, defendant argued in the trial court that in evaluating the prosecutor's justifications, the excusals of C.H., K.F. and L.P. need to be compared to the acceptance of Juror No. 4067612. On appeal, defendant argues L.P. and Juror No. 4067612 were comparable. In addition, defendant argues for the first time that the prosecutor's acceptance of Juror No. 4187970 shows the excusal of K.F. was also racially motivated.
Comparative juror analysis evidence "'is not necessarily dispositive, but it is one form of relevant circumstantial evidence.'" (Hardy, supra, 5 Cal.5th at p. 77, quoting People v. Melendez, supra, 2 Cal.5th at p. 15; accord, Smith, supra, 4 Cal.4th at pp. 1147-1148.) "'The rationale for comparative juror analysis is that a side-by-side comparison of a prospective juror struck by the prosecutor with a prospective juror accepted by the prosecutor may provide relevant circumstantial evidence of purposeful discrimination by the prosecutor. [Citations.]' [Citation.] 'If a prosecutor's proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove purposeful discrimination to be considered at Batson's third step.' [Citation.] 'At the same time, "we are mindful that comparative juror analysis on a cold appellate record has inherent limitations." [Citation.] In addition to the difficulty of assessing tone, expression and gesture from the written transcript of voir dire, we attempt to keep in mind the fluid character of the jury selection process and the complexity of the balance involved. "Two panelists might give a similar answer on a given point. Yet the risk posed by one panelist might be offset by other answers, behavior, attitudes or experiences that make one juror, on balance, more or less desirable. These realities, and the complexity of human nature, make a formulaic comparison of isolated responses an exceptionally poor medium to overturn a trial court's factual finding." [Citation.]'" (People v. Winbush (2017) 2 Cal.5th 402, 442; accord, Woodruff, supra, 5 Cal.5th at p. 754.)
"Pretext is established, however, when the compared jurors have expressed 'a substantially similar combination of responses,' in all material respects, to the jurors excused. [Citation.] Although jurors need not be completely identical for a comparison to be probative [citation], 'they must be materially similar in the respects significant to the prosecutor's stated basis for the challenge' [citation]." (People v. Winbush, supra, 2 Cal.5th at p. 443, quoting People v. DeHoyos (2013) 57 Cal. 4th 79, 107.)
a) Juror No. 4067612
Juror No. 4067612, a member of the initial panel, was married with two adult children. He worked at a hospital as a warehouse supervisor and his wife worked at a hospital as a secretary. He had previously served as a juror on two criminal cases, both of which resulted in a verdict. He reported being the victim of one crime many years before when someone broke into his house through the front door but was chased off by his wife.
Juror No. 4067612 also reported one negative experience with law enforcement six or seven years earlier when he and a friend found a wallet that contained no identification and they returned it to the police station. He explained that a gate had been open and he apparently should not have entered through it. He said the officer present "was being hard on me" and acting "like I was guilty of stealing a wallet because—that was the only bad experience I had. It did kind of—it did kind of upset me because I'm trying to be a good citizen." He stated, "That's the last time I do it. I'll just mail it in. That was a bad experience." He concluded, "I think there's a bad apple in every class of, you know, bad police officers, bad judge, bad employees. So I can put that aside." Although he described his experience as "kind of upset[ting,]" it was nevertheless limited to an isolated incident.
Defendant argues L.P. was stricken despite her "milder and more distant experiences." The People disagree that L.P.'s two negative law enforcement experiences were milder than that of Juror No. 4067612 and contend that the prosecutor could have readily concluded that their experiences were sufficiently dissimilar to preclude L.P. but not Juror No. 4067612 from serving.
We are unconvinced that Juror No. 4067612 was materially similar to C.H., L.P. or K.F. The California Supreme Court has recognized that "parties with limited peremptory challenges generally cannot excuse every potential juror who has any trait that is at all problematic. They must instead excuse those they believe will be most problematic under all the circumstances. There will always be some similarities between excused jurors and nonexcused jurors." (Hardy, supra, 5 Cal.5th at p. 83.)
While L.P.'s negative experiences with law enforcement were more distant temporally than Juror No. 4067612's experience, neither of their experiences was recent and we do not find this point illuminative. More important were the experiences themselves and we agree with the People that L.P.'s negative experiences were not milder than Juror No. 4067612's experience. To the contrary, very shortly after L.P.'s rape, she was treated poorly by law enforcement on two occasions only days apart. Given that rape is a violent and intimate crime, the prosecutor could have reasonably concluded that L.P.'s mistreatment by police was more traumatizing and left a more deeply felt negative impression of law enforcement. Moreover, L.P.'s car was impounded during the first incident, which amounts to more than a minor inconvenience, even though she informed officers of her situation. We do not agree this is comparable to being treated suspiciously while turning in a wallet at a police station. Similarly, we do not find the wrongful conviction of one's child as reported by K.F. or the systemic racial profiling described by C.H. comparable to being treated suspiciously on a single, brief occasion.
Although the prosecutor did not identify prior jury service as a ground for concern, Juror No. 4067612 served on two juries that reached verdicts. In contrast, L.P.'s jury service experience culminated in a hung jury with L.P. and one other person holding the minority position. This distinction sets Juror No. 4067612 and L.P. further apart when considering whether they were materially similar. (See Reed, supra, 4 Cal.5th at p. 1003 [potential juror's service resulting in hung jury a legitimate prosecutorial concern].)
We note C.H. had no prior jury service and while K.F. served on a jury that reached a verdict, the prosecutor's concern focused on the allegedly wrongful conviction of K.F.'s son. As we have stated, the prosecutor could have reasonably concluded that Juror No. 4067612's negative experience with law enforcement, vis-à-vis turning in the wallet, was not equivalent to either C.H.'s or K.F.'s experiences, both of which were more personal in nature and which were not limited to one brief contact. For these reasons, we do not find Juror No. 4067612 materially similar to C.H., K.F. or L.P.
b) Juror No. 4187970
Juror No. 4187970, who was selected to join the panel after the first round of challenges, was single and worked as an assistant to a financial advisor. She had served as a juror on two prior criminal cases, one of which resulted in a guilty verdict and the other of which resulted in acquittal. She served as the foreperson for the latter case. The People do not address defendant's argument or otherwise touch on the issue of comparative analysis as to this juror.
Defendant refers to Juror No. 4187970 as "he," but the record reflects the juror is a woman.
Juror No. 4187970 served on a jury that acquitted the defendant. Outside the presence of the other jurors, she explained that during deliberation, the jurors, including two correctional officers, focused on questionable conduct by the Bakersfield Police Department. As we interpret her statements, jurors' concern lay, at least in part, with suspicious, possibly staged, crime scene photos.
Although defendant attempts to liken Juror No. 4187970's jury service experience involving untruthful law enforcement witnesses to the trial court's concern that K.F. was intimating the police lied with respect to her son's case, we are not persuaded. The prosecutor's overriding concern with C.H., K.F. and L.P. was their negative experience with law enforcement or the criminal justice system. Juror No. 4187970 did not have any similar negative experiences, nor is there any indication in the record that she was hesitant in responding like L.P. or had concerns about hearsay evidence like K.F. Therefore, defendant fails to demonstrate that she and C.H., K.F. or L.P. were materially similar jurors.
5) Conclusion
In this case, the facially neutral reasons articulated by the prosecutor for excusing C.H., K.F., and L.P. "'are apparent from and clearly established in the record.'" (Woodruff, supra, 5 Cal.5th at p. 751, quoting Reed, supra, 40 Cal.4th at p. 1000.) As a result, the trial court was not necessarily required to make a detailed record of its findings, but it nevertheless expressly evaluated the prosecutor's stated justifications. We conclude the trial court's findings are supported by substantial evidence and reject defendant's claim that the court abused its discretion in denying his Batson/Wheeler motion.
II. Exclusion of Testimony Regarding Alleged Prior Inconsistent Statement
A. Background
Turning to defendant's claim of evidentiary error, a witness's prior inconsistent statement is admissible pursuant to Evidence Code section 1235, which provides: "Evidence of a statement made by a witness is not made inadmissible by the hearsay rule if the statement is inconsistent with his testimony at the hearing and is offered in compliance with Section 770." At trial, Stinson testified that after defendant was caught with the bindle of drugs, he stated, "Stinson, this is for personal use because we're going on lockdown." That statement was not documented in Stinson's incident report, and he testified he intentionally omitted it because he found it unnecessary given that inmates commonly make such statements to avoid being placed in ad-seg. He also testified that at an earlier court proceeding in 2015, he notified the then-assigned prosecutor, Jessica Hartnett, of the statement. He explained that he mentioned it to her at that time because he did not want her to be caught off guard if the defense brought up the statement. Hartnett thereafter notified the then-assigned defense counsel of defendant's statement via an email in which she represented that Stinson said he forgot to include the statement in his report.
Section 770 of the Evidence Code provides: "Unless the interests of justice otherwise require, extrinsic evidence of a statement made by a witness that is inconsistent with any part of his testimony at the hearing shall be excluded unless:
"(a) The witness was so examined while testifying as to give him an opportunity to explain or to deny the statement; or
"(b) The witness has not been excused from giving further testimony in the action."
During trial, Stinson did not testify what he told Hartnett, if anything, regarding why he did not include the statement in his report. The prosecutor decided not to call Hartnett as a witness and she made a motion to preclude the defense from calling Hartnett. Defendant argued that he wanted to call Hartnett as a witness so he could introduce impeachment evidence that Stinson made a prior inconsistent statement regarding his reason for omitting the statement from the report. The prosecutor contended the evidence was irrelevant because there was no inconsistent statement. After hearing their arguments, the trial court held a hearing pursuant to Evidence Code section 402 to clarify the circumstances underlying Hartnett's email and the exchange between Hartnett and Stinson.
Section 402 of the Evidence Code provides:
"(a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article.
"(b) The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests.
"(c) A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute."
At the hearing, the trial court noted that Hartnett's representation to defense counsel that Stinson said he forgot to mention something in his report was not in quotations. In response to the court's inquiry, Hartnett testified that Stinson did not say he forgot to include the statement in his report and he never offered any explanation for the omission. Rather, he told her only of the statement and, in her haste to notify defense counsel, she assumed he forgot to include the statement in his report and communicated as much to defense counsel.
At the end of the hearing, the trial court ruled that Hartnett could testify at trial. After the prosecutor filed a motion for reconsideration, the trial court reversed its decision and excluded Hartnett as a witness, concluding that based on Hartnett's testimony, Stinson did not make the statement attributed to him in Hartnett's email and therefore, there was no prior inconsistent statement within the meaning of Evidence Code section 1235.
In moving for reconsideration, the prosecutor argued in part that the evidence was irrelevant and should be excluded under Evidence Code section 352, which provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The trial court did not address Evidence Code section 352 in excluding the evidence nor is it necessary for us to consider that ground in light of our determination that there was no error. (See People v. Zamudio (2008) 43 Cal.4th 327, 351, fn. 11.)
On appeal, defendant contends the trial court erred in excluding the evidence of Stinson's prior inconsistent statement and the exclusion resulted in prejudice to him. The People maintain that, as a foundational matter, the trial court properly excluded Hartnett as a witness based on its determination that Stinson did not make any statement to Hartnett that was inconsistent with his trial testimony.
B. Standard of Review
"[A] trial court has broad discretion to determine whether a party has established the foundational requirements for a hearsay exception (People v. Martinez (2000) 22 Cal.4th 106, 120) and '[a] ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto[.]' (Evid. Code, § 402, subd. (c).) We review the trial court's conclusions regarding foundational facts for substantial evidence. (People v. Phillips (2000) 22 Cal.4th 226, 236.) We review the trial court's ultimate ruling for an abuse of discretion (People v. Hovarter (2008) 44 Cal.4th 983, 1007-1008; People v. Martinez, supra, at p. 120), reversing only if '"the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice."' (People v. Brown (2003) 31 Cal.4th 518, 534.)" (People v. DeHoyos, supra, 57 Cal.4th at p. 132; accord, People v. Jackson (2016) 1 Cal.5th 269, 320-321.)
C. Analysis
1. No Error
"A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770. The 'fundamental requirement' of section 1235 is that the statement in fact be inconsistent with the witness's trial testimony." (People v. Johnson (1992) 3 Cal.4th 1183, 1219, fn. omitted; accord, People v. Homick (2012) 55 Cal.4th 816, 859; People v. Cowan (2010) 50 Cal.4th 401, 462.) The rule is not mechanical. (People v. Johnson, supra, at p. 1219.) "'Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness' prior statement [citation], and the same principle governs the case of the forgetful witness.'" (People v. Johnson, supra, at p. 1219; People v. Homick, supra, at p. 859; People v. Cowan, supra, at p. 462.)
As previously set forth, the parties in this case disputed whether Hartnett's email evidenced a prior inconsistent statement by Stinson regarding why he omitted defendant's statement from his report, and the trial court held an Evidence Code section 402 hearing to clarify the circumstances underlying Hartnett's email. In precluding Hartnett from testifying, defendant claims the trial court "accept[ed] without question Hartnett's 'clarifying' testimony ...." and he asserts in his reply brief that he "met the foundational requirements for admission of the evidence ...."
Under Evidence Code section 403, subdivision (a)(4), "[t]he proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when [¶] ... [¶] [t]he proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself." The trial court determined, based on Hartnett's testimony, that Stinson never said he forgot to include defendant's statement in his report and instead, the language in Hartnett's email, which was not in quotation marks, merely reflected her impression based on his omission of the statement from his report. While a "declarant's denial of the prior inconsistent statement does not render that statement inadmissible" (People v. Zapien (1993) 4 Cal.4th 929, 954, italics added), the issue before the trial court was not a denial by Stinson that he made the statement but was, more fundamentally and notwithstanding defendant's contrary position, whether an inconsistent statement attributable to Stinson was ever made and it was within the discretion of the trial court to make this foundational finding (People v. Brooks (2017) 3 Cal.5th 1, 47). Based on Hartnett's clear and unequivocal testimony under oath and the absence of quotation marks in her email, the trial court concluded that Stinson did not tell Harnett he forgot to include defendant's statement in his report. As this conclusion was supported by substantial evidence, we find no abuse of discretion in excluding Hartnett from testifying at trial.
Defendant takes issue in his reply brief with the People's failure to address his constitutional claims. However, his bare assertion that the exclusion of Hartnett as a witness violated his right to confront witnesses and to due process under the Sixth and Fourteenth Amendments lacks merit. Defendant cites no direct authority for the proposition that the trial court's evidentiary ruling violated his federal constitutional rights. The admission or exclusion of evidence under state law violates a defendant's right to due process only if it renders the trial fundamentally unfair. (People v. Merriman (2014) 60 Cal.4th 1, 70; People v. Quartermain (1997) 16 Cal.4th 600, 626.) No such unfairness resulted here. Moreover, "'[a] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby "to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness."' [Citations.] '"[U]nless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witness's] credibility' [citation], the trial court's exercise of its discretion in this regard does not violate the Sixth Amendment." [Citation.]'" (People v. Pearson (2013) 56 Cal.4th 393, 455-456; see People v. Hayes (1999) 21 Cal.4th 1211, 1266, fn. 15 [restriction on presentation of impeachment evidence on collateral matter did not violate right to confrontation and cross-examination].) No such showing has been made. --------
2. No Prejudice
Additionally, even if we assume error for the sake of argument, no prejudice resulted because "there is no reasonable probability defendant would have obtained a more favorable result had [he] been [permitted to call Hartnett to testify]." (People v. Brooks, supra, 3 Cal.5th at pp. 47-48; accord, People v. Merriman, supra, 60 Cal.4th at p. 69.) Defendant focuses on the importance of Stinson's testimony regarding defendant's statement and his inability "to effectively confront Stinson." Defendant argues, "Stinson's prior inconsistent statement, coupled with Hartnett's testimony that she gave a false reason for the late disclosure in her e-mail to defense counsel, might well have caused the jury to question Stinson's testimony that [defendant] ever made such a statement."
Based on the testimony at the Evidence Code section 402 hearing, Hartnett would have informed the jury that Stinson told her about defendant's statement, but not that he forgot to include the statement in his report, and she would have explained that her contrary representation in her email to then-assigned defense counsel was based on an assumption on her part. We do not attach to this evidence the importance defendant urges.
This was a strong case for the prosecution; two correctional officers witnessed defendant with a seven-inch bindle of marijuana partially inserted into his rectum. Defendant's knowledge of the bindle's contents was an element the prosecutor was required to prove beyond a reasonable doubt and defendant's statement to Stinson was helpful to the prosecution in establishing knowledge, but defendant overstates the impact of Hartnett's proposed testimony given the circumstances underlying the crime here. Defendant's knowledge of the contents was reasonably inferable from his act of attempting to secret the bindle in his anal cavity. (See People v. Tripp (2007) 151 Cal.App.4th 951, 956 ["[K]nowledge of a substance's narcotic nature may be shown by evidence of the defendant's furtive acts and suspicious conduct indicating a consciousness of guilt, such as an attempt to flee or an attempt to hide or dispose of the contraband ...."].)
As we have stated, Hartnett's testimony would not have shown that Stinson made a prior inconsistent statement regarding the reason he omitted the statement from his report and while the jury might have concluded Hartnett was hasty or careless in her email communication, any such conclusion was collateral to the credibility of Stinson. We therefore find there is no reasonable probability of a more favorable outcome for defendant had Hartnett been permitted to testify regarding what Stinson told her and the contents of her email.
DISPOSITION
The judgment is affirmed.
/s/_________
MEEHAN, J. WE CONCUR: /s/_________
POOCHIGIAN, Acting P. J. /s/_________
SNAUFFER, J.