PEOPLE v. JONES (KIONGOZI)

Respondent’s Brief

Cal.September 19, 2012

SUPREME COURT COPY Jn the Supreme Court of the State of California PEOPLE OF THESTATE OF CAPITAL CASE CALIFORNIA, Case No. $075725 Plaintiff and Respondent, SUPREME COURToo FILED KIONGOZ]IJONES, SEP 19 2012 Defendant. Frank A. McGuire Clerk Los Angeles County Superior Court Case No. Deputy NAO3 1990 The Honorable Bradford L. Andrews, Judge RESPONDENT?’S BRIEF KAMALAD. HARRIS Attorney General of California DANE R. GILLETTE Chief Assistant Attorney General LANCE E. WINTERS Senior Assistant Attorney General JOSEPH P. LEE Deputy Attorney General ViET H. NGUYEN Deputy Attorney General State Bar No. 233925 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-0207 Fax: (213) 897-6496 Email: DocketingLAAWT@doj.ca.gov Attorneysfor Respondent DEATH PENALTY TABLE OF CONTENTS Page Statement of the Case... eeeesescceseesseeceeseereeseceeteeseeseesseeeeeeseseesasereteeseeeeeees 1 Statement Of Facts ..........cceccesscesssecceeseceeeeeseeeseeeeeseeeesesseesssseeseesseeeesnseeseesaeees 2 A. Prosecution Evidence........cceeeeeseesseeseeeseeesetereseeseeess 2 1, Background Gang Evidence...........eeseesseeeees 2 2. The Shooting at 1700 Pacific Avenue, Apartment Number 4: the Murder of Mario Lopez (Count 2), Assault with a Deadly Weapon of Veronica Munguia (Count 5), and Shooting at an Inhabited Dwelling (Count 6) 0... ce eecesseeescestseeneeneeeeenees 6 a. Amber Gutierrez’s Account of the SHOOTING «0... eeeeeeeeeeeeeeeseneeeenereeeeeeneeees 6 b. Veronica Munguia’s Account of the Shooting ..........eeecccceeseesseeesseneeeeeees 7 c. Anna Granillo’s Account of the SHOOUNG «0... eee eeeeeeeeseeeseeeeeeneeseeeeseees 8 3. The Murder of Jose Angel Villa on 16th Street in Front of the Back Alley (Count 3) vcesccesccsseceeseesseeseeesrsnecesceeesersresseesseeeaes beeeeeeees 11 4, The Attempted Murder of Nery Hernandez (Count4)...........eeeveseeetsseessaees 12 5. Subsequent Investigations .......... ee eeeeseeeees 13 a. Appellant and Sherman’s Presence at 1708 Pine Avenue, Apartment Number4.0.00... 13 b. Eyewitness Identifications.................. 14 Police InterviewS ........:ceceseeeesereeeeeees 15 d. The Tape Recording of a Telephone Conversation Between Appellant and His Younger Brother ......cceccesessesseeeeeeceeseeteeeeseneeeaes 17 TABLE OF CONTENTS (continued) Page €. Firearm Evidence..............5deceeetseeeeees 19 f. Autopsy Evidence .......ssceeeeesseeeseseens 20 Defense Evidence .........ccesceeccceessseeseeeeeeescesrsseeesseesns 20 1. Anna Granillo’s Whereabouts During the 1S)61010)501-20 2. The Circumstances Surrounding Appellant’s Conversation with Frazier.......... 21 3. Sherman’s Whereabouts 0.0.0... ccseeeseeeeeeee 22 4. Robert Elder’s Account ofthe Shootings...... 22 Penalty Phase Evidence .......... cc ceeeseesesenneeeeeeseeeenens 23 1. Aggravating Evidence...........seanaceeneneeeteneeeenees 23 a. The Murder of Carl Milling............... 23 b. The Carjacking of Sarom Sao............. 24 C, The Robbery ofArtis Lisby................ 24 d. The Murder of Ronald Broussard....... 25 €. The Shooting of Matthew Ferguson and Quincy Saunders.......... 25 f. Possession of a Loaded .32 ReVOlVELoo. .ececeeeseeeseeeeetenseeeeeencereeeens 26 g. The Robbery of Charles Loch............ 26 h. Victim Impact Testimony..............0. 26 2. Mitigating Evidence..........cecseeeseeseeneeeteees 26 a. Valerie Williams ......cccccceccseeseeeeeeeees 26 b. Robert Robinson.........e ee essseeseeeesenees 27 C. Helene Cummings .........ccccseeceeeeeeeeee 27 d. Jonathan Chaney ........ceseceseesseeeeseees 27 e. Barbara McCoy.........csecccssssseeeeeeseeeees 27 f. Shawn Williams............seeessseeeseeeeees 27 ii TABLE OF CONTENTS (continued) Page g. Murise Stinson ..........ccescsscesseesseeserees 28 h. Rickey Gipson ........:ecseeessecsreesereessees 28 1. Lolitha Jones ........ceceeeeeseeesceceseeeesees 28 j. Vanessa Gaskin... eseseeseceseeseeeeneees 28 k. Doris Vaughm..........:ccssccssecceseeesteeenees 28 Ll Mellisa Bedolla.....c.....cccccsccccessseeeseeees 28 ATLQUMENELo...eee ceseeeeseceseseeeseseesaeeeccessesnseeesssessaerssesesasecesaesanessaseosaeeenaees 29 IL The Trial Court Properly Exercised Its Discretion WhenIt Ruled That Munguia’s Lay Opinion about Whether the Evidence Against Appellant Was Weak Was Speculative and That Detective Collette’s State of Mind During the Investigation WasIrrelevant.................... 29 A. Relevant Proceeding$S...........:cccccessecsscsseesseeeseeessnes 30 B. Appellant Has Failed to Preserve His Claim That the Trial Court Abused Its Discretion by Restricting Munguia and Anna from Testifying about a Statement Made by DDA Connelly Regarding the Strength of the Case ..........cceeeseenees 36 C. The Trial Court Properly Found That Munguia’s Lay Opinion Testimony about the Strength of the Case Was Speculative...eee 37 1. The Trial Court Did Not AbuseIts Discretion When It Sustained the Prosecution’s Objection to Munguia’s Lay Opinion Testimony on Speculation GrOUNGS....... ee eeeteeeeseeeeenneeeeceaeeeseceseteeeensensees 38 2. The Exclusion of Munguia’s Lay Opinion Testimony Did Not Violate Appellant’s Constitutional Rights.........0....... 4] 3. Any Alleged Error Was Harmless................. 42 ili Il. TABLE OF CONTENTS (continued) Page Assuming That Appellant Had Attempted to Impeach Anna with a Statement Made by DDA Connolly to Munguia, Any Alleged Error Would Be Harmless....0.......esceesseetesseseeeeeeseeesMeteeeeees 44 The Trial Court Properly ExercisedIts Discretion WhenIt Found That Detective Collette’s State ofMind During the Investigation WasIrrelevant and Not Proper Impeachment Of Anma.........cceeseteessesseeteeteeneeeeeees 46 1. The Trial Court Did Not Abuse Its Discretion When It Found that Detective Collette’s State of Mind WasIrrelevant........ 47 Testimony That Detective Collette Overheard Munguia Making a Statement Regarding a Statement Made by DDA Connolly about His Evaluation of the State of the Evidence Involved Inadmissible Hearsay ............ccccccsessteeseeeeeeees 49 Appellant’s Rights to Confrontation and Due Process Were Not Violated 0.0.0.0... 51 In Any Event, Any Alleged Error Was ~ Harmless ......c.c.ccsscccseccccceceuseccacsecssssscsccensseeees 52 The Trial Court Did Not Abuse Its Discretion WhenIt Excluded Robert Robinson’s Testimony during the Guilt Phase 0...eeeeseccsseseseecsseceanseseseeeecsseesseensenseeneserenaes 54 A. Relevant Proceedings...........:csesscesesseseeesceeeseeeseeees 55 B. Appellant Has Forfeited His Claim That the Trial Court Erred by Excluding Robinson’s Testimony Because Robinson Wasa Gang EXPL... ceeeeeseesscsessesssssesscsseseeesessessneneeseeeeeeentecseeeeens 59 The Trial Court Did Not Make a Finding That Robinson Wasa Functional Equivalent to a Gang Expert ......cecceccesscseceresseereneesseeeneeenserseeeesenee 60 iv Ii. IV. TABLE OF CONTENTS (continued) Page Appellant Has Forfeited His Claim That the Trial Court Erred by Excluding Robinson’s Testimony as Character Evidence under Evidence Code Section 1102 00... ceeeeeeseeseeeneteees 62 The Trial Court Did Not Abuse Its Discretion WhenIt Excluded Robinson’s Lay Opinion Testimony That Appellant Was No Longer a Gang MemberBased on His Observations of Appellant’s Interactions with People in the Community oeeeeeeeeseeeeeeeeeeees sesneecessctenseeeceeseneeees 64 The Trial Court Did Not Abuse Its Discretion WhenIt Admitted an Audio Recording of a Jailhouse Telephone Conversation between Appellant and FYAZICL oeceeceeceessccceseeeesseneecsceesusceeseeesecsaeeesseesesseeesneeesenseeees 67 A. Relevant Proceedings... eeseeeseesseeseeerereneeeeeees 67 B. Appellant’s Recorded Conversation with F, Frazier Was Relevant to Show Appellant’s Consciousness Of Guilt ....... cee eesseeeeseeeeeeecesseeeseeeeaes 72 The Trial Court Did Not Abuse Its Discretion WhenIt Admitted Evidence of Appellant’s Conversation with Frazier into Evidence................. 75 The Trial Court Properly Denied Appellant’s Motion to Exclude the Recording of Appellant’s Telephone Conversation with Frazier on the Ground That the Recording Was Unintelligible 00... eceseccesseeceeeeeeeeeneceseeeeeeeeeeeaes 76 Appellant’s Due Process Right Was Not Denied Whenthe Trial Court Admitted the Taped Conversation into Evidence ...........ceceesceteeeeeesenerees 78 Any Alleged Error Was Harmless.............:::ccsceeeses 79 California’s Multiple-Murder Special Circumstance Does Not Violate the Federal Constitution...eee 81 TABLE OF CONTENTS (continued) Page V. Substantial Evidence Supported the Trial Court’s Finding That Juror No. 3389’s Feelings about the Death Penalty Would Substantially Impair His Performance aS & JULOL........e eee eeeeeessecesseeeeecsseeseeeneeeqeeerseeens 81 A. Relevant Proceedings...cessescesesteeesseeeeeseees 82 B. Applicable Law........cscecsssssessesecseeeseseesseseeseeereenens 85 C. Substantial Evidence Supported the Trial Court’s Exclusion of Juror No. 3389 0...eects 86 VI. The Admission of Evidence of Appellant’s Prior Unadjudicated Criminal Activity During the Penalty Phase Was Constitutional 00.0... cesceeseesssssesssseseeeteeeeseees 89 VII. California’s Death Penalty Statute, as Interpreted by This Court and Applied at Appellant’s Trial, Does Not Violate the Federal Constitution ..............cccccsessssseeeeeeeeeeeeeees 91 VIII. The Judgment and Sentence Need Not Be Reversedfor Cumulative Error ..........:ccccccccccececssseseccceceucecsceesuceuesesseeserseaes 98 CONCLUSION ..........ccccecccccssescsecesesceccccnsncecessccreusessssesceccecsseeecesscaesaesesessceeoueeees 99 vi TABLE OF AUTHORITIES Page CASES - Apprendi v. New Jersey (2000) 530 U.S. 466, [120 S.Ct. 2348, 147 L.Ed.2d 435] oes92,94 Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] oe92, 94 Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 oo.eeeeeeseeeeeeees 42, 53 Crane v. Kentucky (1986) 476 U.S. 683 [106 S.Ct. 2142, 90 L-Ed.2d 636]...eeeeeeetees 41 Cunningham v. Washington (2007) 549 U.S. 270 [127 S.Ct 856, 166 L.Ed.2d 856] (SCUNNINGHAM) ....seceececsseessvececesceeessevenceateseceagensseseesneeneesanenesensetteseeseaeseaeed 92 Delaware v. Van Arsdall (1986) 475 U.S. 673 [106 S.Ct. 1431, 89 L.Ed.2d 674]oeeeeneeseeeees 51 In re Sassounian (1995) 9 Cal.4th 535 occcceessscseessecesseseeeceessesseesaeeeaseeseeaeseaesaeeseeeeseeteeesaes 76 Jambazian v. Borden (1994) 25 Cal.App.4th 836 oo... ccicessecssccsssescsseseeererseesesseesseerseetenssaseeesaeees 40 Lockhart v. McCree (1986) 476 U.S. 162 [106 S.Ct. 1758, 90 L-Ed.2d 137] ooceeeeeeeeeeeeees 87 Lowenfield v. Phelps (1988) 484 U.S. 231 [108 S.Ct. 546, 98 L.Ed.2d 568] oo... ceeeteeeeeeeees 81 Montana v. Egelhoff (1996) 518 U.S. 37 [116 S. Ct. 2013, 135 L. Ed. 2d 361]eee52 People v. Allen (1986) 42 Cal.3d 1222 occccessscssesscescesceeeenseeeaceseteserecseesenenetscsaeeesseeeeseeas 98 People v. Anderson (2001) 25 Cal.4th 543 ooo. ceecessssccescesceseeeseeseeceseeenessceseessaeeeesesetsarearennssenes9 vil People v. Arias (1996) 13 Cab.4th 92 oo. ccccsssesssesescsessseseesesseesaeeseseeneeerseenersnessaes 93, 96 People v. Armendariz (1984) 37 Cal.3d 573 w.eecesssssssessesssssscesssesseseneneseeseseseaseecenensnssnserestensesencay 49 People v. Avila (2006) 38 Cal.4th 491 oo eceeeccsesesetesneesnscecsesssenenenerssnseeesessesssterseeesnees 96 People v. Ayala (2000) 24 Cal.4th 243 oo. ecccsssssssceesenenssseecessssesensseseeesereceeasecnreneeasseseseees 88 People v. Babbitt (1988) 45 Cal.3d 660 o....sessesscessssenesescsnsceeseneeeneseneneseseesensnerencetsessssnrsnstes 47 People v. Balderas (1985) 41 Cal.3d 144ccccsessseneseseseneeensnesseereeeeneestseenseeseneeeesesessenseas 90 People v. Bemore (2000) 22 Cal.4th 809 ooo. ccecssesssseseeesenenseeseenesenseeetecsenesenscasareesenerssaesens 96 People v. Bivert (2011) 52 Cal.4th 96 oo. cccssssseesesesesessecseseressecseneterenereessseseseeseeesssenes 91, 92 People v. Blair (2005) 36 Cal.4th 686 00... ccscessseesessessssesensseesenensaserseeceesnneenensesenereneneneees 98 People v. Bloyd (1987) 43 Cal.3d 333 oe. eeeesesssesessssssssesseseseseesenesesenensseasecesaeenenensasenenarereneets 61 People v. Bolin (1998) 18 Cal.4th 297 oo. escesssssssseecessesesessenesenenenenseesseensesesatseeneseaessacecens 90 People v. Boyette (2002) 29 Cal.4th 381 oo.ecsseessssseesseseneneeseeeteeeesesscesaeneesserenenseesssenees 4] People v. Bradford (1997) 5 Cab.4th 1229 oc eesesessssesesenssesesssesesessesesenesstenenenesessnsreseerseacenes 89 People v. Bramit (2009) 46 Cal.4th 1221 weeccceeeseeseeneeesnensseessecuecneesvesssesstessntecaseaseeniens 97 People v. Brown (2004) 33 Cal.4th 382 oo. ecccsscscseseseesseesereeeseeseereenenes seseteeaeeee 91, 92, 96, 97 People v. Burney (2009) 47 Cal.4th 203 oo. eessecesesessseesenssenesesesecsesesseesseesenenenerenstsasscsenescecss 94 Vili People v. Caitlin (2001) 26 Cal4th 81 oo.eeeseeeereerssssessesssscsacesssecsseesenessseeeseesess 96, 97, 99 People v. Carter (2005) 36 Cal.4th 1114...eaeeseuseuccsuecsesaecsusessesecusccaeeeeeseesaeeaseeeensenanes 79 People v. Chapple (2006) 138 Cal.App.4th 540 oocsessssensscecseessssssesecnsnresesseetssereeesessnens 40 People v. Clark (1990) 50 Cal.3d 583, 268 Cal.Rptr. 399, 789 P.2d 127oes36 People v. Clark (2011) 52 Cal.4th 856 occceeceeeseeesenessssssssesseesersssessessesesseesssersaseeaseaseegs 47 People v.. Cluff (2001) 87 CalApp.4th 991 oo. eecsecnssstssessesessressesseesessenssscesesseseenenessnes 75 People v. Coddington (2000) 23 Cal.4th 529 oo.eeeeessecreeseseetestessesssessnseesveceecsatenetaraeseesseseeee 81 People v. Coffman and Marlow (2004) 34 Cab.4th 1 oe cceeecceececssceceseeseeeseseeeeecesecsceesecsseasensesaeeansesssaeas 39, 95 People v. Combs (2004) 34 Cal.4th 821 oo. ccceeesseceeeeseeesseeseenseceesenesssaeseeseseseessesseeees 93, 94 People v. Cornwell (2005) 37 Cal.4th 50 oo... eccseseseesseeeeeeesseseeeseecssesseeesssesecseesssasaessceeeeesaes 93 People v. Cottle (2006) 39 Cal.4th 246 0. eeceeeseseecseeeceecsecseetsececesensssessucesscssessessseeseassesaees 49 People v. Cunningham (2001) 25 Cal.4th 926 0... ceeeceescsesseeessecseeseestereeseneenenensns 52, 92, 94, 99 People v. D’Arcy (2010) 48 Cal.4th 257 oececeesssenceecrsseeeeeees scteeseneneseneaeaenecaeeneneetsneess 94 People v. Demetrulias (2006) 39 Cal.4th boo.cecceeecsesseereeeesceseeetseeeseeesssessessseneseseeessenenee 93, 98 People v. DeSantis (1992) 2 Cal.4th 1198, 9 Cal.Rptr.2d 628, 831 P.2d 1210...ee42 People v. Doolin (2009) 45 Cal.4th 390 occcccecseeseeeeeeeseeeeeesaceesessensesnaetateeareeeeaseesseees 64, 93 1X People v. Eubanks (2011) 53 Cal4th 110 oo.eeceeeeceeeeesseessscesesseseseeseseeseneneeeeeesessnnees 42,53 People v. Ewoldt (1994) 7 Cal4th 380 ooeeeeesescsssscsseesesssesereesesecassesseseeseeaeeaesssenseeeeenees 62 People v. Farnam (2002) 28 Cal4th 107 oescceesessesssseesesscseseseseecsseeesesasenseeees baceaeereees 38, 65 People v. Fauber (1992) 2 Cal4th 792 oocccscsscsessessesssesssecscseesesessscaesessesessesesenecseseaens 60, 96 People v. Foster (2010) 50 Cal4th 1301 veecccsesessescnesesssssssscsssaseesecerasesesesseseesseeeses 96 People v. Gardeley (1996) 14 Cal4th 605 oo.eeeeesscscsescesscseseesssensesesssesaesesesesaseeneseeneeaees 64 People v. Ghent (1987) 43 Cal.3d 739 oeesesseesesssecssssssssssscasscsessesseseseesssentenesaseeeneaees 85, 86 People v. Gonzales (2011) 52 Cal4th 254eecesscscscscsscessesecessesssssseseneeseeesesenecseseeseensenenenes 94 People v. Gray (2005) 37 Cal4th 168 oo.eccecesecseessessescsssssscseesesessssaseenseaseseseseeseneneenes 93 People v. Griffin (1991) 235 CalApp.3d 1740 oo. ccccceseseeeesesesesesseseneeensesesessseeseseeeneees 72 People v. Gutierrez | (2009) 45 Cal4th 789 oo.ccescsescescsesscesssscsssessseesssscssesnsnsssseaeenesenenseeees 91 People v. Hall (1980) 112 CalApp.3d 123 ceccscescsssssssssssssssssesssssssecesceccessnsessecssnsssnsssssesesee 76 People v. Hall (1986) 41 Cal.3d 826 occcceeesesctessceesesscesterescsasssssssssesssesseseesenseeenesaeats 41 People v. Hamilton (2009) 45 Cal4th 863 occccccecsesssesssecesscsesssassecsssseseesesseseeeeeseeenseeeneenes 88 People v. Hannon (1977) 19 Cal.3d 588 ooccecseceeeeceeseeeeeseens de eeeeeeecsaceeseseacecaaeeaceneeeeeetens 73 People v. Harris (1989) 47 Cal.3d 1047 .oeeeecceceecteseeeseesesssessessssessessesessssnssecsssasessesssesesees 41 People v. Harris (2005) 37 Cal.4th 310oeeeeseecsecesseessscceesecesseseeesaseasessseseresaseaceeeeneesaes 91 People v. Harris (2008) 43 Cal.4th 1269occceeessceessersesseessesssessssneseseesaseressseesaees 90, 97 People v. Harrison (2005) 35 Cal.4th 208 oo... eccesecscesccsseceaseseseeeseeresseeseceecessaseaneasenseneraeesnees 88 People v. Hayes (1999) 21 Cal.4th 1211 occecccseescseeceeeseseeceseseaeeeaceseeeseeesecssessensecseneeees 86 People v. Hernandez (2004) 33 Cal.4th 1040 oo... eececssessseeececseeseeeseeseeseeseesessseeeaesaeeesentseesneees 43 People v. Hill (1998) 17 Cal.4th 800eeeseseeeessseseeeeeesetscsseeseeacsssassecseesecsesesaeseesaeees 86 People v. Hillhouse (2002) 27 Cal.4th 469 oo... cecccsccssessecsecsesceseecseesecssesceaeesersnesseeseenesseens 91, 96 People v. Holt (1997) 15 Cal.4th 619 oooeccesseeessseeeeersenseesesesssesseesassacssessasseeeesesetennenes 95 People v. Howard (1992) 1 Cal.4th 1132cececeeeseeeeseceeenseceeseeerseeseeeeceeseeeseeeteeeesaeeeeeeeaeenes 94 People v. Hughes (2002) 27 Cal.4th 287 oo... eceecsseseesceseeseceseseeceeccesearseeseeaceseeeesesseeeaeteessenses 96: People v. Jenkins (2000) 22 Cal.4th 900 oo.eeecsceecsscessecseesessecersseseessesessasesaeessesseeseseaeees 94 People v. Johnson (1992) 3 Cal.4th 1183 occcccceseeseeccsceeeseseecsecseesaceeaeeeeesaeeeeeeaeensenesenees 98 People v. Jones (1997) 15 Cal.4th 119oescesscccseescesesseesecseeseesecsscsaessaeseesatseeseseesens 86 People v. Kraft (2000) 23 Cal.4th 978 ooo. cececeseeseeeceseecseeseteeeaceseesrseeseesescssseseenasaes 47, 96, 99 People v. Lee (2011) 51 Cal.4th 620oeeesssceeeseessseseecescesessesseseesesseeeesaseeeseeeeeseesees 91 People v. Lenart (2004) 32 Cal4th 1107 oo. ccccccccsscssecssseseeeeseeceeneseeeerseeseeetseeeneaseaeeeseeeeaees 93 XI People v. Letner and Tobin (2010) 50 Cal4th 99 ..cccssssscssssesssssessescnnesesssessnssensnnscnnnane nanssessensssette4 91, 92 People v. Lewis (2001) 26 Cal4th 334 .....seessesscsessserseesenecsecssesesecnnecennenaseerenseetsstets 91, 93, 99 People v. Lewis (2009) 46 Cal4th 1255 ...essccsssssscssesseessnrerssnesssereeessnnennananenensecssensssstgs 93, 96 People v. Lewis and Oliver (2006) 39 Cal4th 970 wecccseeesssssssssesssceessnnsceesnssecssnensecneananen sanssccctneesseseeseent 89 People v. Lomax (2010) 49 Cal.4th 530 ....scsessscssssssssssonsnsnsesesnnssecsssessensanaasccsnsrececesnssssegt 93, 95 People v. Lucas (1995) 12 Cal.4th 415 ...eeesssssesseccssneesenntesssnecsnssnnsneensnnscnarensnnesnnenssszees 39, 60 People v. Manriquez (2005) 37 Cal.4th 547 o..ssssscscsssessssseescecnstenssssecesssseecen senenastenrestesensssssnss sgt e 90 People v. Marks (2003) 31 Cal4th 197 .scecssssccsssseccessssesseserestssssenssnsesenansennnnsscnnscentnssenceens see 64 People v. Marshall (1996) 13 CalAth 199 ...cccecseesssecssssesesecsssnscerssnecesonnsseessanscnsanssscersenssssessee 139 People v. Martinez (2000) 22 Cal4th 750 wccccsssesessssssseessssecsnnneersnessescsnnssessanscnnansnassecsenssseng tee 73 People v. Mayfield (1997) 14 Cal.4th 668 w...eccccssssssscssssssesceennnsecetsnssecessnnsnenananenennasneccesnssssetg€ 50 People v. Miley (1984) 158 Cal.App.3d 25 wsccssseccssssssseecneeesentecsssssnnannennnan ennnnsssentsenssnens 77 People v. Monterroso (2004) 34 Cal.4th 743 acecssessccesssssssssnssceconsenssntecssnssncannsnnnanacan nesseseesssseesssses 94 People v. Moon (2005) 37 Cal4th 1 ..scscccsssescessresessssssessenneeeesnectssssscnsssnccnnnensnssstesesssssenensss 95 People v. Moore (2011) 51 Cal.4th 1104 .....seeeessseessssssseceeennsesseseeeessnssennnnsnennece nnnnssetnssssersnens 96 People v. Morrison (2004) 34 Cal.4th 698ossescseeccsssersnsecsnteesetseseessnersanennnrennenesentenssress 38, 39, 94 Xil People v. Mungia (2008) 44 Cal4th 1101 oeceeecsesceseccseseececeeserseteseesesseeseeneeteseaeonaeees 66 People v. Navarette (2003) 30 Cal4th 458 oo.ceccssssecscceeceseceesceteesecerseeseeseeseceaseneesseenseeesees 39 People v. Panah (2005) 35 Cal4th 395 oo. ccccccsceccecsscceessseessseseneesateaceeeesaeseceseseeeaesaeeserenseees 94 People v. Partida (2005) 37 Cal4th 428 oo. ecccceccsscsseesececeeeseeesecaceeaecseeseeseseenseteseetenaes 37, 78 People v. Pensinger (1991) 52 Cal.3d 1210 wesceseeenecreeeceseneeseseeeseesesesseseserseceeeeesees 73, 74 People v. Phillips (2000) 22 Cal4th 226 0... eeecesecescssesceeseesesecsseceecsereesseessseseasscsereecseeenseesees 4] People v. Polk (1996) 47 CalApp.4th 944 oooeceeseeeeseesenseseeeessessenseaessssacesseeneassseesees 76 People v. Pollock (2004) 32 Cal.4th 1153 oo. ecececsscescsecesscessceeeesceecceaeeeseessseaeerasseeeeeseeteees 94 People v. Price (1991) 1 Cal4th 324 ooeeecseeesecscesereeeeseeseneesasesecseesseseeceeseseeseevaceseeeees 48 People vy. Prieto (2003) 30 Cal.4th 226 ooo eeeeeeseeseseceeseesssesssecseeeseeessessssssasseesserseasseseeeeees 91 People v. Richardson (2008) 43 Cal.4th 959 oo. ecccccssescssereceeeesssesssessceeesnsesaseeetasensenees 36, 53, 79 People v. Rider (1955) 130 Cal.App.2d 353 oo. cseecseneetcesteresecseseserseceseseeeesesseaseneseeeeeseen BO People v. Rodrigues (1994) 8 Cal4th 1060 oo.cccsccscsssesesseesseseeessessesecseeseeasseeseereeesseesesenss 66 People v. Rodriguez (1999) 20 Cal4th 1 oo. eeecececsecseeeeseeeereeerenseeseesetsessesessaeeeessesseesesesseseeseneass 48 People v. Rodriguez (1986) 42 Cal.3d 730 woeeecsccsecsceseceseneesserseseeeeesetcaeesaessssassaecesaeeaseeeeenees 96 People v. Rogers (2006) 39 Cal4th 826 oo.ccscseesecsenesseeseesseeeseeseeneserscenesacsecassessenaeeneraeens 90 xiii People v. Sapp (2004) 31 Cal.4th 420 oo. cecececsessssesseesssseeseneeeesensasecseaesetsnieaseesenens 81, 82, 83 People v. Scalzi (1981) 126 CalApp.3d 901 ....ccescsessessseeesseeeeeseerenseesnecerereesnscsesssnecssaeenenes 50 People v. Schmeck (2005) 37 Cal.4th 240 oo.ecseessessseneessesssesecsenenenensesessesssesserseseesseneeseenens 85 People v. Scott (2011) 52 Cal4th 452 oieeeseeseeecesesneeneeseseeseereaeserssssnenssenerensaeaseeesnes 78 People v. Siripongs (1988) 45 Cal.3d 548 oo ccecseeseesesecesseeeceseencaseeeressstssssesssnsnennensnensenenenes 76, 77 People v. Snow (2003) 30 Cal.4th 43 woe ecccssesseseresseeensneseretesenseeenensnsesstenerenseessenenenenes 97 People v. Stewart (2004) 33 Cal.4th 425 .o.ceceecsssessessessessssssseessesceseessseneenssnsernsensensesesseeneenes OD People v. Stitely (2005) 35 Cal4th 514 occ ecccscsesesesesesereneeeeeteneeerenststensessensneneneeeneneesens 93, 98 People v. Taylor (2010) 48 Cal4th 574 ooeecseseesenesesereeeenseenensensesseersnsnsaseeesereseesensesesenes 90 People v. Tripp (2007) 151 CalApp.4th 951 occcceeeseeenenenererseenseererssssesesessnerenenes 45,74 People v. Tuggles (2009) 179 Cal.App.4th 339 ..ccccseesesssscesesceseeeeeereenesesssanerersnssesesensnsaness 63 People v. Turner (1990) 50 Cal.3d 668 .....esssscecsescsseescseseseseseeneteneterenenenesesseneeneenseesessenenens 45 People v. Turner (2004) 34 Cal.4th 406 oo. cceceeeessceseeenenesseeseeceseneasseaeseenessrasseseesssesesenenees 93 People v. Valencia (2006) 146 Cal.App.4th 92 ooo. ceccesecseeeenesecereteeersesssererenenssasasenennenseee8 People v. Vieira (2005) 35 Cal.4th 264cessssssssccssseeeseesesesesesenenensassenessssssersssessececnteesseees 81 ‘People v. Virgil (2011) 51 Cal4th 1210oecesesseesesesesesereeeetsneesneeneneeneeneeersenesessseneeses 98 XIV People v. Waidla (2000) 22 Cal.4th 690 oo... ce cceecssescscccsseeeeesesscescerseeteaeveesseseaeenseeenes 37, 38, 64 People v. Warner (1969) 270 Cal.App.2d 900 oo... cccessceseeeeceeecseeecsnesetsesseecaseasseneaeeseeeaeees 47 People v. Watson (2008) 43 Cal.4th 652 oo... ccccscccessesccesseccssessceeaceessceeeeseseeseeesssaeeaesateeseesaes 90 People v. Watson , (1956) 46 Cal.2d 818oecesecsecessenserssessescssssssenesseecseseescsscseeeeceeees 42 People v. Weiss (1958) 50 Cal.2d 535 oeceeeecseeseeecesesessenecseseecseseesecevsessecsseesseceasecseseeseas 73 People v. Wheeler (1992) 4 Cal.4th 284 oooeceeceesecsseessecsseneseecseensecssessssecsssseessceessseeeegs 48 People v. Whisenhunt (2008) 44 Cal4th 174 occececessseseeeessesensescscececarsesesteesacsessaseeseassesaseaseeeegs 92 People v. Williams (1997) 16 Cal.4th 153 oo... ceccecscesceseecseeeeeseeeeneceesesecesesesteneseeeeeateaeesenspassim People v. Williams (1998) 17 Cal.4th 148 ooocccecccsecereceseeeeecseeeseesecseesceeeseseeeesteeteneees 37, 47 People v. Williams (2008) 43 Cal4th 584 ooocccceceseeseenecseesesseeeeesseeeesaeeeeeeenees 47, 81, 96, 98 People v. Wilson (1992) 3 Cal.4th 926 oo... eecesececscsseetsceseesseeceesesensrecaessessersatsasesaceaeaseeesses 74 People v. Wilson (2008) 44 Cal4th 758 oooeeesessecseesecseceeesseesssecsseeseeseseeeesssassessestaaesaeens 4] People v. Yeoman (2003) 31 Cal.4th 93 ooo. eeeseecsecseecneeeeseeeeceeeeeseeseesecereeesteesesaeesassansesesenaee 94 People v. Young (2005) 34 Cal4th 1149oeceeeeseeseseneeeseseceseneeenensseeseseersensseseseraeeet 90 People v. Zapien (1993) 4 Cal.4th 929 ooceesenecseeeseeseseeeseenaeserseseecesessesereseseesenessaneeeaes 97 Price v. Superior Court (2001) 25 Cal4th 1046oceceecessececesnecesseesseaeseeeeecessaeessessseseseeereeses 81 XV Pulley v. Harris (1984) 465 U.S. 37 ee cescscssssesesesesesesesensescseeeesseenseesseseseeseneasenseneasaenencaeaeaass 97 Ring v. Arizona (2002) 536 U.S. 584 [122 S.Ct. 2428, 153 L.Ed.2d 556] .....eee92, 94 Skipper v. South Carolina (1986) 476 U.S. 1 [106 S.Ct. 1669, 90 L.Ed.2d 1] oeeeeeeteeeeeeeteneeeees 41 Taylorv. Illinois (1988) 484 U.S. 400 [108 S.Ct. 646, 98 L.Ed.2d 798] sasaseeceateeceeaeeaeeaee 41,52 Tuilaepa v. California (1994) 512 U.S. 967 [114 S.Ct. 2630, 129 L.Ed.2d 750]... eeceseeees 91,97 Wainwright v. Witt (1985) 469 U.S. 412eeesesssstssseseessscsenssersseeseseesenenenesseaseenenens 85, 86, 87 STATUTES Evid. Code § QO... ceseceeccsceseeseceecsesescsceceecssesssssseeseesacsesenesssensceesssesaesesescaseseseacasaceesasecates 47 § 35 Lovceeeccsesssccsesccseceeenesceeesesessescessssessaseesesesesessssesesecseaeeensesesseseeeterseneneneneey 72 § B52. cecscceeseeseescscesersesneseessesresesecsessecssesesseseeeeseeaeesseesenseneneeseraceesssenspassim § B54 ecsescescsseceeceeseceseseesseessecsesssssssesessecsesssecsenensesessseensseesaeneneeiees 37, 59, 61 § 4O2Q...ecccsssccccscecccesesenescceseseersssssteerscssesessseseseeescseseesesesenensessasnenseenseaieaees 55 § 403... ceescesescencceecceecsesescesceeessesessesaacsesseseesesesseseeeesesseseensaseseeseciseeessagees 38, 39 § S520. .cececcsesescecsccceccsesesescenssesessesssesscesssessscsesesesesecassessenenenesesseisasecnennensasanes 92 § OQ... ecsccesssccscsssssseceecsesceceseseesssesssssacsesecsesssesssesseecseeecsenesesseassensesaseneesacaceees 38 § 720... ceccssesescecesscecececesercesesseacsseseesessscsecssescaseessesensenssaeesssessbeeseeetseeeeesensenens 61 § 800... ce ccscessecescecceescecesseesensesssssssessuenecsssnseeseseeseseeseseeneneeeneeearseneeeeegs 38, 65 § LLOQ ececccccscssesseceseceeeesseecssesesersnsessccansecsssseseseseesessesseseseseeseassneisesaeseneees 62 § 1200, SUA. (b) ...e.eeeeeeeesescesceseseesssesscnseecsseeessssseeencaecnsessessenenetecseneeseeeeees 61 § 1220... eecceeccsssesescesencsceceeseersesaeesssscessseeeseesasesseaesaeseesecasueseeessenseeeessaseeees 57, 70 § LBQ4Leeccccscceseeneeceeceesessceseescessesenensessseseeseessseeseeseenesneeeeesseceaeteteseeenoneeens 62 XVi Pen. Code § 18Q.cccccsseesssscsssssssscsssusesssecessssssessseecsssssesesseerasesessecesssssssssessecsssssnesessesssee 1 § 187oecccccsssesscsscssssvssssesssecesstessessssessseeetersseeeseusessssssssssssueviesensssesaceeseeanenssees 1,2 § 190.2. cecccssecssscssssecsssseesccsssssuvecsessessusesesessessesnsssesscessueessessssuessessnvesesesasees 1,2 § 190.3 ..ccccescsssscssssessscsssssessecssssssssssvecesssssesesseseeerssseessessesneeseeseesan 89, 91, 96 § 245 .cccccccccscsssccssseesssssssumsssssssssssussasescsssssvecsecssessssseseesanssssuesessessnteeseesesen 1,2 § 246 ccccsscessssssssssesesescessseessesscesssssssssvecersssssessessessesaes sssestssseseneseeteceesnnsseees 1,2 § O64. cccscsecccsscssssessssssssnsessssescsssnsevssssecsssssessssessssssssssestessssssssesssssssssasecessssssees 2 § O67occcssssessssssssssstssssssssssssssscssssessssssscssssssaseceersssssnsessessssssueeseeessssnnveceesee 1,2 § 667Sccccscssccscsssssesssssssssvetsssssssssssssssnvcsssssssnesecseressssnsseesessessaneessseussasesesessen 1,2 § 1170.1 Qc ceccccscscssesesssssssvetsssssssssesesssscesssssssssscssssssssneceseerssesaneesecessnusnseseessn 1,2 § 12022. cvecscsccsssssevecsssssssevsessssssssssssssesssssssavesessssssssneseseererssussessesssasnasescesssssee 2 § 12022.5 ccccscscssssessssecssssevsssssssssssssssvecsssssssersecsssssssneeessssssssavttsssssssiaseesessssssace d © § 12022.53.ccecccccsseeesssscssssvessssscsscssssssssecsssssssseseccecesssnsesecceseasavtessessssssneveessssee 1 § 12022.7 .cceeccsssssseccsssssecccssssssvscessssssscesssssevecssssssssssesnveessssssaseesesssuessessasees 1,2 CONSTITUTIONAL PROVISIONS Cal. Const., Article VI, § 13 vieccescccsssccssscscssesseccssssessassecsssesssessesssesssecseseareaseene42 U.S. Const., Amend. VIII oo... ecccscecesesssssscssssscsssssssessssesseessecesseseresseees 42, 81 USS. Const. Amend. XIV ooeccescssscesescesseesseeesessssesesscessesesessessesseaeseesessesssees 98 OTHER AUTHORITIES CALIIC No. 8.85 occsscssscsseecseceecseseeceessecesesesseetsecssaeiesesseseesseneaeaeeees 96, 97 CALIIC NO.8.88 oo. ccccccecessesssssessescseseceseessenesesseseseseseesessesensseestesesenesasseenes 93, 95 CALCRIM NO,763 wcccccsssssescsseesscseesseeeseseseasescsceseseaessssessseesessesesecseaeseseeesees 93 7 Wigmore, Evidence (Chadbourn rev.1978) § 1919, p. 32 ...ccccceceseseseesseees 40 XVii STATEMENT OF THE CASE In an amended information filed by the Los Angeles County District Attorney, appellant was charged them with the murder of Mario Lopez (Pen. Code,’ § 187, subd. (a); count 1), the murder of Jose Angel Villa (§ 187, subd. (a); count 2), the attempted murder ofNery Hernandez (§§ 664/187, subd. (a); count 3), assault with a firearm on Veronica Munguia(§ 245, subd. (A)(2); count 4), and shooting at an inhabited dwelling (§ 246; count 5). As to counts 1 and 2, a special circumstance wasalleged that appellant committed multiple murders. (§ 190.2, subd. (a)(3).) As to counts 1 to 4, it was alleged that appellant personally used a handgun. (§1203.06, subd. (a)(1); § 12022.5, subd. (a).) As to counts to 5, it was alleged that appellant inflicted great bodily injury upon a human being. (§12022.7, subd. (a).) As to all counts, it was alleged that appellant had served a prior prison term (§667.5, subd. (b)), had suffered a conviction for a serious felony (§667.5, subd. (a)(1)), and had suffered a prior serious or violent felony conviction within the meaning of the “Three Strikes Law” (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). (ACT 232-236.) Appellant pleaded not guilty and denied the allegations and special circumstance. (1CT 238.) Following a trial by jury, the jury was unable to reach a unanimous verdict. The trial court found that the jury was hopelessly deadlocked, declared a mistrial, and discharged the jury. (2CT 374.) Onretrial, the prosecution’s motion to consolidate appellant’s case with Melvin Sherman’s case was granted. (2CT 432.) An amended information was filed. Sherman was charged with conspiracy to commit a crime. (§182, subd. (a)(1); count 1.) Appellant and Sherman were charged ' All further statutory references will be to the Penal Code, unless otherwise indicated. with the murder of Lopez (§ 187, subd.(a); count 2), the murderofVilla (§ 187, subd. (a); count 3), the attempted murder of Hernandez (§§ 664/187, subd. (a); count 4), an assault with a deadly weapon by meansof force likely to produce great bodily injury on Munguia (§ 245, subd. (a)(1); count 5), and shooting at an inhabited dwelling (§ 246; count 6). As to counts 2 to 4, a special circumstance wasalleged that appellant committed multiple murders. (§ 190.2, subd. (a)(3).) As to counts 2 to 4, it was alleged that a principal was armed with a handgun. (§12022, subd. (a)(1).) As to counts 4 to 5, it was alleged that appellant inflicted great bodily injury upon a human being. (§12022.7, subd. (a).) As to counts 2 to 6,it was allegedthat appellant hadserved a prior prison term (§667.5, subd. (b)), had suffered a conviction for a serious felony (§667.5, subd. (a)(1)), and had suffered a prior serious or violent felony conviction within the meaning of the “Three Strikes Law” (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). (2CT 434- 441.) | Following trial by jury, the jury found appellant guilty on all the | charges, found true the special circumstance, and foundtrue the allegations. (2CT 585-587; 20RT 5205-5209.) The jury found Shermannot guilty on count 1, found Sherman guilty on counts 2 to 6, found true the multiple murder special circumstance, and foundtruethe allegations. (/bid.) Following a penalty hearing, the jury returned a verdict of death. (3CT 652-653.) | STATEMENTOF FACTS A. Prosecution Evidence 1. Background Gang Evidence The Insane Crips Gang (hereinafter “ISC”) and the Rolling 20’s Crips (hereinafter “RTC”) were two ofthe largest African-American gangs operating in Long Beach. (17RT 4371.) The Eastside Longo(hereinafter “ESL”) wasthe largest Hispanic gang operating in Long Beach. (17RT 4317.) These three gangs were amongthe mostviolent, hardcore gangs in Long Beach. (17RT 4402.) . In December of 1996, the RTC and ESL were engagedin “a black- brown war”in a two-block area of downtown Long Beachthat included Pacific Avenue and Pine Avenue.” (16RT 4160, 4234.) Both the ESL and the RTC claimedthis area as their turf.” (17RT 4372.) There were many acts ofviolence committed between the ESL and RTC in the area. (16RT 4163.) These acts of violence included numerous shootings. (14RT 3704.) In fact, between February to Decemberof 1996, there had been nine | homicides committed in this two-block area. (17RT 4165, 4298-4300.) Within this two-block area, African-American gang members, including membersofthe ISC and the RTC, were knownto hangoutat the apartment complex at 1708 Pine Avenue. (1SRT 4021-4022; 16RT4164; 17RT 4298-43 00.) There is an alleyway behind the apartment complex at 1700 Pacific Avenue between Pacific Avenue and Pine Avenue. (14RT 3628.) The alleyway runsparallel to Pacific Avenue, between Pacific Coast Highwayand 16th Street. (14RT 3648.) There wasgraffiti on a nearby wall on the rear carport area of 1700 Pacific Avenue. (16RT 4160-4163 [Peo. Ex. 1 [photographs].) The graffiti was visible from 1708 Pine Avenue. (16RT 4164-4165.) The graffiti indicated that the area was claimed by the ESL. (1SRT 3764.)' The graffiti included the phrase “Fuck All Monkeys.” This phrase would be * This was a lower-income area of Long Beach. (16RT 4163.) > Turfis territory where a gang resides or hangsout. (17RT 4372.) * A gang claimsits territory by marking it with graffiti to communicate that the area is their turf. (17RT 4372-4373.) The presence of an African-American gang memberin ESLturfis a sign of disrespect. A gang would use sometype of force to get the gang memberto respect their turf. (17RT 4376-4377.) directed to the “Insane Crips, Samoans, and any other Black gang.” (17RT 4373-4376; Peo. Ex. 1.) Although the RTC wasnotspecifically mentioned, the graffiti did not indicate that the RTC were exempt from thehostility by "the ESL. (17RT 4376.) The Long Beach Police Department was aware of this graffiti and suspected that there may be possible retaliation in the area because it conveyed a “pretty bold statement.” (16RT 4161-4163.) Appellant was a memberofthe RTC. On April 25, 1990, Long Beach Police Officer John Stople had a conversation with appellant. Appellant admitted that he was memberofthe RTC andthat his gang moniker was “Swoop.” (15RT 3934-3935.) In May of 1990, City ofLong Beach Police Detective Steven Carl Lasiter had a conversation with appellant. Appellant stated that he was a memberofthe RTC andthat his moniker was “Swoop.” (1SRT 3939-3940.) On May 2, 1990, appellant told Long Beach Police Officer Michael Schaich that he was a member ofthe RTC andthat his gang moniker was “Key Loc.” (17RT 4288-4291.) Appellant had “Little 20 Swoop”tattooed onhis right forearm. On the web of his left hand, the name “Kio” wasspelled out. Appellant had a “2” and “0” tattooed on hisleft index finger. Appellant had the word “Crip” tattooed onhis left wrist. Appellant had “RTC”tattooed abovehis elbow. Appellant had a “2” tattooed on the backofhis left arm and a “0” tattooed on the back ofhis right arm. (17RT 4404-4407.) Melvin Sherman was also a memberofthe RTC (15SRT 3943, 4015- 4016) and his gang moniker was “Baby Troub” (16RT 4175). Sherman had a “2” tattooed on the back ofhis left arm and a “0” tattooed on the back of his right arm. (18RT 4665-4666.) Amber Gutierrez had seen appellant hanging out on Pine Avenue. On one occasion, appellant had “yell[ed] gang stuff at” Gutierrez and her friends. (14RT 3640-3641, 3678.) Veronica Munguia had seen both appellant and Sherman on Pine Avenue. (14RT 3704.) Anna Granillo (hereinafter “Anna”)’ had seen appellant and Sherman on multiple occasionsbefore the shootings. Whenever Anna passed by 1708 Pine Avenue, she would see Sherman. (15RT 3811-3813, 3822.) On December6, 1996, appellant had been angry because “he was beat » down... by a Mexican earlier that week.” (16RT 4177.) Ifa gang memberfrom the RTC had been physically beaten by a Hispanic gang member, that gang member would have to retaliate. Committing a murder would be utmost form ofretaliation.° A gang member who murdered a rival would gain an enormous amountofprestige within the gang. (17RT 4394-4396.) Moreover, actually approaching the residenceofa rival gang member“would show other gang membersthat [the perpetratoris a hard- core gang member], that [the perpetrator] would do anything ....” (17RT 4396-4397.) Mario Lopez (“Mario”)’ and his twin brother, Robert, were members of the ESL. (14RT 3693-3694, 3712, 3720.) Arthur Granillo (hereinafter “Arthur’’) was also a memberofthe ESL. (15RT 3772-3775.) > AnnaGranillo and Arthur Granillo share the samelast name. Thus, for purposes of clarity, counsel for respondent will refer to Anna and Arthurbytheir first names. ° The commission ofan act ofviolence benefits a gang member by enhancing the reputation of the gang member. The moreviolent anact, the “more clout” the gang memberearns. (17RT 4394.) ” Mario Lopez and Robert Lopez share the same last name. Thus, for purposesofclarity, counsel for respondentwill refer to Mario and Robert by their first names. 2. The Shooting at 1700 Pacific Avenue, Apartment Number 4: the Murder of Mario Lopez (Count2), Assault with a Deadly WeaponofVeronica Munguia (Count 5), and Shooting at an Inhabited Dwelling (Count 6) a. Amber Gutierrez’s Account of the Shooting On December6, 1996, at approximately 7 p.m., Gutierrez was at a party at 1700 Pacific Avenue, apartment number4, in the City of Long Beach (hereinafter the “Pacific Avenue Apartment”). (14RT 3626-3628.) She was with a group of people that including, among others: Munguia, Anna, “Sunshine,” “Casper,” Tricky,® Arthur,” and Gregory Sinsun.'° There were also three children present; Gutierrez’s son,'! Munguia’s daughter, and Anna’s daughter. (14RT 3628-3629.) Gutierrez was sitting on a couch inside the Pacific Avenue Apartment, talking on the telephone. The front door was “wide open.” Gutierrez had a clear view of the doorway from her vantage point. (14RT 3631-3632.) A “minute or two before the shooting,” Gutierrez saw Sherman”walking slowly past the doorway. Sherman glanced inside the Pacific Avenue Apartment. Sherman then walked away from the back alley, towards Pacific Avenue. Noneofthe people inside the Pacific Avenue Apartment spoke to Sherman. After Gutierrez saw Sherman walk past the doorway, she heard Sherman makea statement to someonein the direction ofthe back alley. (14RT 3632-3634.) ® Tricky was a memberofthe ESL. (14RT 3710-3711.) ° Arthur was also known as “Joker.” (14RT 3643.) 10 Sinsun was also known as “Sleepy. (14RT 3715, 3750.) '! Munguiatestified that Gutierrez was with her son. (14RT 3692.) ” Gutierrez identified Sherman at trial (14RT 3639) and from a photographic six-pack lineup (14RT 3669-3670). Shortly thereafter, Mario and Casper went outside of the Pacific Avenue Apartment. Mario leaned up against a fence. Casper sat downina chair outside. (14RT 3647.) At that time, Anna entered the apartment. As Anna was walking throughthe living room, shots were fired. (14RT 3635- 3636.) Approximately eight to nine gunshots were fired from the back alley. (14RT 3651.) The partygoers ducked for cover. (14RT 3637-3638.) Munguia was inside a bedroom. Sheran out to get her daughter and wasstruck in the knee by gunfire. (14RT 3638-3639.) Casper ran inside the apartment. Mario also entered the apartment. He washolding theside of his body. Mario stumbled andfell on the living room floor. Mario wasalive, but was bleeding. Mario stated that he wanted to go to the bathroom. Gutierrez assisted Mario to the bathroom. (14RT 3634-3637.) Gutierrez did not see appellant in the apartment complex at 1700 Pacific Avenuethat night. (14RT 3661.) b. Veronica Munguia’s Account of the Shooting Munguia had fourbrothers, including Mario, Robert, “Jesse,” and Arthur. Mario and Robert were members of the ESL. (14RT 3693-3694, 3712, 3720.) Munguia also knew many members of the ESL. (14RT 3705.) Mario and Arthur were at the Pacific Avenue Apartment during the party. (14RT 3710.) Everyone wasdrinking beer and having a good time. (14RT 3712.) Before the shooting, Munguia wasin the apartment’s sole bedroom - with Anna and Sinsun. (14RT 3707.) Anna had returned from the laundry room and wasputting away her clothes. (14RT 3715, 3717.) Anna did not seem excited or upset. (14RT 3716-3717.) Munguia, Anna, and Sinsun had been inside the bedroom together for approximately five minutes when Munguia heard gunfire. (14RT 3716.) Anna had been walking back and forth to the bedroom with her laundry. (14RT 3717.) When Munguiafirst heard gunfire, Annahad just walked into the bedroom and droppedoffher laundry basket. (14RT 3718-3719, 3727, 3736.) Munguia ranto the living room to protect her daughter. When she got to the living room, Mario pushed Munguia’s daughter towards Munguia. Munguia picked up her daughter. Munguia wasthen struck by gunfire in the knee and ran back to the bedroom. (14RT 3698-3700.) Sinsun and Annawereinside the bedroom when Munguia returned. (14RT 3707.) Gunshots continued to ring out. The partygoers ran into the bedroom. (14RT 3700.)'? Mario collapsed in the hallway by the bathroom. (14RT 1700, 1703.) The partygoerstried to help Mario and debated whether to move him. The police were called and arrived approximately 15 minutes later. (14RT 3703.) | Munguia did not see the gunman. (14RT 3703, 3707-3708.) Munguia movedout of the apartment one month after the shooting. (144RT 3705.) c. Anna Granillo’s Account of the Shooting Anna wasat the party. (14RT 3739.) She had consumeda couple of beers. (14RT 3745.) That day, Anna had been doing her laundry. She had been walking back and forth between the laundry room andthe bedroom, where she would put awayher clothes. (14RT 3740-3741, 3745-3749.) Anna would only stay in the laundry room forshort periodsoftime, just to load and unload her laundry. (14RT 3751-3752; 1SRT 3781-3782.) Before Anna’s last trip to the laundry room, she saw Mario and Casperoutside of the Pacific Avenue Apartment by the door. (14RT 3743; ISRT 3765-3766.) On her way to the laundry room, Anna saw appellant '3 Munguiatestified that the shooting occurred between 7:00 p.m. and 8:00 p.m. (14RT 3712.) and Shermanin the backalley, “scoping” out the apartment building. ~ (4RT 3752-3754, 3758; ISRT 3764.) Appellant and Sherman werein the alley, approximately 38 feet away. (15RT 3816.) Although the back alley wasdimly lit (1SRT 3814), appellant and Sherman were both facing Anna. (15RT 3804.) Anna wascertain that she saw appellant and Shermanin the back alley. (1SRT 3826-3827.) Villa and another neighbor were also in the back alley. (1SRT 3845.) | As Annawasleaving the laundry room, she again saw appellant and Sherman. They “cameright close behind” her, and Anna saw them out of the corner of her eye. Anna warned Mario to “watch out.” As she walked through the middle ofthe living room, Anna heard gunfire. Anna then ran into the bedroom and dropped off her laundry basket. (14RT 3754-3758; I5RT 3764-3765, 3783-3784.) Anna heard more than seven gunshots that came from near the doorway. She then heard approximately three more gunshots that came. from the back alley. (1SRT 3767-3768.) Anna stayed in the bedroom until the gunfire ceased. (15RT 3766.) During that time, Anna saw Munguia run out to the living room screaming for her daughter. (1S5RT 3766-3767.) Mario ran into the apartment. Hestated, “God, these fucking niggers shot me.” Mario then stated, “Damn, I’m hurt. I need to use the bathroom.” (15RT 4768.) The police were called. Annafelt that the police did not respond to the call in a timely fashion. The police ordered Annato get out ofthe Pacific Avenue Apartment. However, she did not want to leave. She was “real upset and crying.” She was angry atthe police for not arriving at the house more quickly. (1SRT 3769.) The police took Anna and her mother outside of the Pacific Avenue Apartment. Mario was taken away in an ambulance. Anna was “real upset”that the police did not allow her to go in the ambulanceto the hospital with Mario. (15RT 3770.) Anna was questioned by the police that day. Shelied and told the police that she did not have any information that could help the police “because she did not wantto talk to them at that time.” (1SRT 3770-3771.) Annatold the police that she was in the bedroom during the shooting and could not identify anyone. (ISRT 3791-3792.) Although Anna did not actually see appellant shoot and kill Mario, she “knew something aboutit.” (15RT 3772.) Annahada hostile relationship with the police. She believed that the police would harass her family. (15RT 3770-3771.) Wheneverillegal activity would occur in the neighborhood, if someone of Hispanic decent wasalleged to be involved, the police would come to her home. This upset Anna and causedherto distrust the police. (1SRT 3779.) Moreover, there had been previoussituations where other individuals of Hispanic decent had been shot, assaulted, or killed. Annafelt that the police did not help these victims. (15RT 3772.) Annadid not speak with the police that day because she was upset and angry. She washurt and did not want to talk to anybody, even her family, about what had happened. She wanted to forget about it. (ISRT 3775- 3776.) She did not want to testify at trial because she did not wantto think about think about Mario. (15RT 3800.) Because Anna’s brothers were members of the ESL, Anna was expected to be uncooperative with the police. This wastrue despite the fact that her brother had been killed. If she testified against appellant, she would be considered a “snitch.” She was discouraged by her own gang“ not to cooperate with the police. She wasalso afraid that she would be 4 Anna wasaffiliated with the La Puente gang. (15RT 3806.) 10 attacked’if she cooperated with the police. (1SRT 3772-3774.) Furthermore, Anna’s brothers did not want her to cooperate with the police. (1SRT 3776-3777.) Arthur wasoutside when the shooting occurred. He did not speak to the police about the shooting. Some members ofthe ESL would consider a person a “snitch”if a person told “the police what they observed, even if the people that they are telling about are rival[] [gang members].” (15RT 3774-3775.)'° The ESL’s attitude was that they would take care oftheir own problems. (15RT 3776.) | 3. The Murderof Jose Angel Villa on 16th Street in Front of the Back Alley (Count 3) On December6, 1996, shortly before 7 p.m., Maria Jaramillo was playing with her nephewsin front of her home, located on 16th Street. She heard gunfire coming from thedirection of Pacific Avenue. Jaramillo took her nephewsinside the house. She then went back outside and saw appellant!’ walking out from the back alley.’® Villa rode by on a bicycle from the direction of Pacific Avenue. Appellant grabbed Villa from around the neck and shot Villa on the right-side of his head, at approximately eye- level. (I6RT 4087-4093.) 'S Being a “snitch” is looked down upon by other gang members. Snitches are not trusted by gang members. If someoneis labeled a snitch, they would beassaulted or killed in prison. (17RT 4398.) Moreover,it is considered a sign of weakness to cooperate with the police. (16RT 4178.) ‘6 Tf a memberofthe ESL witnessed a crime being committed by a memberofthe RTC, they would not talk to the authorities about the crime. (17RT 4399.) " Jaramillo identified appellantat trial. (16RT 4102.) Jaramillo was confident in her identification of appellant as the shooter. (16RT 4108.) '8 Officer Remine walked and jogged the distance from the rear of 1700 Pacific Avenue, to the alley where Villa was murdered, and back to 1708 Pine Avenue. It took approximately 45 seconds to walk that distance and 30 secondsto jog that distance. (17RT 4344.) 11 Jaramillo went back inside her home. She then heard additional gunfire. Jaramillo went back outside and saw that a person had been shot in a station wagon. (16RT 4093-4095.) She saw appellant walking towards Pine Avenue. (16RT 4094, 4096-4097.) 4. The Attempted Murder of Nery Hernandez (Count 4) Hernandez wasleaving his home located on Pine Avenue withhis wife and two children. Hernandez backed out of his driveway and got out of his car to close the gate. (16RT 4243-4244.) Hernandez saw appellant and Villa arguing on the sidewalk by the alley. They were approximately 10 to 15 feet away. (16RT 4244-4245, 4249.) Hernandez got back inside his car. Hernandez then looked over and saw appellant pointing a gun at Villa. Hernandez tried to leave because he thought a shooting was going to occur. Hernandez heard two gunshots. Hernandez turned around to back his car out of the driveway. However, a car was passing by, and Hernandez had to wait. Hernandez turned around a secondtime to check if he could back up his car. When he looked up, appellant was standing in frontofhis car. Appellant pointed the gun at Hernandez. Appellant lookeddirectly at Hernandez. Hernandez looked back at appellant. Appellant then shot Hernandezontheright-side of his chest. Appellant then ran towards Pine Avenue. (16RT4245-4248, 4278.) Hernandez’s wife started screaming. His children were crying. Hernandez wasable to maintain consciousness. Hernandez opened the door of his car and yelled forhelp. (16RT 4248-4249.) Hernandez did not know appellant and had never had contact with appellant before the shooting. (16RT 4264.) Hernandez does not know any of appellant’s other victims. (L6RT 4282.) 12 5. Subsequent Investigations a. Appellant and Sherman’s Presence at 1708 Pine Avenue, Apartment Number4 On December6, 1996, before 7 p.m., Long Beach Police Officers Ernie Kohagura and Peter Anderson received a call from police dispatch about a shooting that occurred on the 1700 block of Pacific Avenue. Officer Kohagura was informedthat there shots fired, “some victims down, and then possibly two male Black suspects.” (17RT 4297-4298.) The suspects were last seen running eastbound through the apartment building towards Pine Avenue. (15RT 4019-4022, 4024.) The officers were not aware that anyone had beenkilled. (17RT 4298.) Becauseofthe location of the shooting, Officer Kohagura believed that the shooting may have been gang-related. (17RT 4307.) Officers Kohagura and Anderson were awarethat “numerous Black Crip gangs” would hang out at the apartment complex at 1708 Pine Avenue. (17RT 4298-4300.) Because the scene had been secured by other officers, Officers Anderson and Kohargura went directly to 1708 Pine Avenue. Upon entering the apartment complex’s courtyard, the officers saw appellant standing outside the front door of apartment number4 (hereinafter the “Pine Avenue Apartment”). Appellant appeared startled. He quickly turned, ran inside the apartment, and “slammed the front door extremely hard.” (15RT 4021-4024; 17RT 4300-4302.) | This raised Officer Anderson’s suspicion. The officers walked over to the apartment and knockedonthe front door. After approximately one to two minutes, a woman opened the door. Appellant was standing next to the woman. The officers explained that there was a shooting nearby and wanted to speak to appellant. (1SRT 4024-4025; 17RT 4302-4303.) Officer Kohagura spoke with appellant andfilled out a field _ investigation (“FY”) card with appellant’s information. (17RT 4303-4305.) 13 Officer Anderson spoke to Sherman andfilled out a FI card with Sherman’s information. (15RT 4025-4026.) Leslie Rainey was also present in the apartment. Rainey wasfriends with appellant and Sherman. (15RT 3960-3961.) However, the officers did not speak to Rainey because he was “somewhatolder” and did notfit the description of the suspects. (SRT 4026.) Rainey testified!’ that he was inside the Pine Avenue Apartment with appellant, Sherman, and four women. They were listening to music and watching television. Before 7 p.m., appellant walked out of the Pine Avenue Apartmentand stated he would be standing outside the door. (15RT 3961-3963.) “When appellant reentered the Pine Avenue Apartment, he closed the door behind him. Twenty secondslater, the police knocked on the door. Appellant answered the door and spoke with Officer Kohagura. Then, appellant closed and locked the door. (15RT 3985-3987.) The television program that they were watching wasinterrupted by. “breaking news.” Helicopters were flying above Pine Avenue, shining lights down on the area. (1SRT 3987- 3988.) The apartment was not searched. (15RT 4026.) No arrests were made. (15RT 4027.) b. Eyewitness Identifications Long Beach Police Officer Victor Thrash created two photographic six-pack lineups containing appellant and Sherman’spictures. (L6RT 4166-4167.) On December 7, 1996, Officer Thrash showed Hernandez the photographic six-packs. Hernandez identified appellant as the gunman. (16RT 4167-4169, 4251-4252, 4269.) Hernandez also identified appellant at the preliminary hearing. (16RT 42572.) ') Dueto their friendship, Rainey testified that he would not implicate appellant and Sherman in a murder,even if appellant and Sherman “had come back into the apartment with blood all over their shirt and a smoking gun... .” (ISRT 3978.) 14 On December9, 1996, Officer Thrash showed the photographic six- packs to Jaramillo. Jaramillo identified appellant as the gunman. (16RT 4097-4099, 4104, 4117, 4169-4172.) On December 10, 1996, Officer Thrash showed the photographic six- packs to Gutierrez. Gutierrez was unable to identify appellant. However, two days later, Gutierrez identified Shermanas the person that she saw that night. (16RT 4172-4174; 4198.) On December8, 1997, Long Beach Police Officer Craig Remine showed Annathe photographic six-packs. (17RT 4341-4343.) Anna identified appellant and Shermanas “the two individuals [she] observed walking down the walkwayprior to the shooting occurring.” (1SRT 3819- 3822, 3827.) c. Police Interviews On December13, 1996, Long Beach Police Detective Erik Herzog executed a search of the homes of Walleen Robinson (Sherman’s grandmother) and Rosalind Gilyard (Sherman’s mother). Detective Herzog was unable to locate any useful evidence. However, Detective Herzog spoke with both Robinson and Gilyard. Robinson stated that Sherman had been in town for Thanksgiving. Sherman stayed with Robinson for two nights. Robinson did not know where else Sherman wasstaying. Robinson told Detective Herzog that . Sherman had left town on either December8th, 9th, or 10th. (ASRT 3950- 3952, 4011-4013.) After Robinson stated that she thought“something was wrong,” Detective Herzog asked Robinson, “What did [Sherman] do?” Robinson stated that Sherman had come home onenightand asked to be taken to the bus station. Sherman was taken to Gilyard’s house. Sherman wasin a hurry, and Robinson felt that was something unusual. Robinson then pointed to the calendar andstated that Sherman may haveleft town on December2ndor 3rd. (ISRT 3952-3954, 4013-4014.) 15 Detective Herzog spoke to Gilyard and askedherif she knew of Sherman’s whereabouts. Gilyard stated that Sherman had been staying with Robinson. Shermanstayed over one night. Sherman then wentto the. busstation to go to Modesto. (15RT 4014-4015.) Gilyard told Detective Herzog that there were “a lot of Hispanic gangs in [her] neighborhood and [Sherman] [could not] comeover[to her house].”. Gilyard also stated that Sherman was a member ofthe RTC. (15RT 3943, 4015-4016.) However, Gilyard believed that Officer Herzog asked if Sherman wasassociated with the RTC. (15RT 3948-3949.) In addition, Gilyard has never heard of Shermanreferred to as “Baby Troub.” (15RT 3947.) On December13, 1996, Officer Thrash interviewed Rainey. (ISRT 3963-3966.) Rainey stated that he wasat the Pine Avenue Apartment with appellant and Sherman. Hereferred to appellant as “Swoop.” Hereferred to Sherman as “Baby Troub.” Rainey stated that appellant and Sherman | hadleft the apartment together. Appellant left the door opened so he could get back inside the apartment. Appellant and Sherman were gonefor approximately five minutes. They returned together with “Clarissa.” Appellant stated, “Something must have happened out there becausethere are a lot of police.” No oneleft the apartment after appellant and Sherman returned. Minutes after they returned, Officers Kohagura and Anderson arrived at the apartment. (16RT 4174-4177, 4204-4206.) During the course of the conversation, Rainey stated that appellant was angry because “he was beat down... by a Mexicanearlier that week.” (16RT 4177.) Officer Thrash’s report stated that Rainey stated that appellant and Shermanhadleft the apartment together, appellant left the door “cracked,” and that both appellant and Sherman were gone for approximately five minutes. (16RT 4236-4237.) 16 d. The Tape Recording of a Telephone Conversation Between Appellant and His Younger Brother On January 12, 1997, Los Angeles County Deputy Sheriff Dale Lovvik was assignedto a special crime task force. Deputy Lovvik monitored a wire tap of a telephone conversation between appellant and an unidentified woman. Appellant asked the woman to make a three-waycall to appellant’s younger brother, Tony LamarFrazier. (1SRT 3892-3894, 3897; Peo. Ex. 27.) Duringthe telephonecall, appellant asked Frazier “[w]hat you guys doing?” Frazier stated, “Nothing. I talked to Troub man andI’m trying to get a hold of the dude so I can find out what happened in there.” Frazier asked, “Who was it? Why they detain you?” Frazier stated that he did not know and asked whetherFrazier was “talkin[g] my homeboylittle Troub.” Appellant then explained what happenedat the preliminary hearingstating, “They pointed cuz?" out and kept me man.” (3CT Supp. IV 511, emphasis added.)”! | Later, Frazier inquired into the identity of one of the witnesses at the preliminary hearing, asking appellant: “Okay now, who said something .. . Whois this person, a lady?” Appellant responded, “Two ladies and . . [a] dude, but they ain’t sayin[g] shit. They ain’t sayin[g] nothing. I’m thinkin[g]| they got help. The [j]udge said no doubtin his mind that he *° The term “Cuz”is used by a memberofthe Crips to recognize another Crip gang member. Moreover, a memberofthe Crips will also refer to themselves in the third-person as “Cuz.” (17RT 4399-4400, 4419- 4420.) . *I At the preliminary hearing, Jaramillo mistakenly identified Sherman as the shooter. She tried to correct her mistake, but was not given the opportunity. (16RT 4100-4101.) 17 think I’m guilty of the crimes. They pointed the homeboyout.” (3CT Supp. IV 512.) Frazier then asked, “Well who are these people? Get the transcripts.” Appellant responded, “Yeah,I fixin to tell my lawyers man.” Appellant then stated, “But he said he fixin to go out there and investigate. You know I ain’t got, I ain’t do this cuz, they ain’t go.” Frazier stated, “I know.” Appellant then twice stated, “Don’t even worry about it.” Frazier stated, “Man I’m worried about it man. I know howthe folks is.” Frazier then stated, “I[t] ain’t just.” Appellant then stated “Nigger! need that DA hit that’s who the nigger need hit.””? Frazier states, “Yeah, but you know, you know.” Appellantstates, “You know that’s what I’m thinking fool. He’s mad because he comeup with that proof on the nigger.” (3CT Supp. IV 513.)4 Appellant and Frazier discussed Frazier’s attempts to contact Troub. Frazier stated that he was “waitin[g] on Troub” and that Troub was “supposed to comebylast night, but he went to Pomona... .” Frazier then talked about having to see a psychiatrist. Frazier stated that he found two pistols in the garage. Appellant warned Frazier “Don’t be talking overthe phone cuz. They’ve got my girl’s phone tapped.” Frazier then stated, “but anyway I gave them to [T]roub.” (3CT Supp. IV 513-515.) Officer Lowvik notified his supervisors about the conversation because there wasa referencetothedistrict attorney being “hit.” (1SRT 3897-3898.) 2 Tn ganglingo,the term “Nigga”is not a racially derogatory term. It is often used among Hispanics, Asians, African-Americans, and Samoans as a non-threatening term. (17RT 4400.) . 3 The term “hit” means to commit a murder. (17RT 4400-4401.) *“ From the tape, it appears that appellant was using the term “Nigga” in the third person. (17RT 4401.) 18 e. Firearm Evidence Long Beach Police Officer William Collette was oneofthe investigating officers. (17RT 4434-4436.) When Officer Collette arrived at the sceneheinitially went to West 16th Street, where Villa’s body was lying. Villa wasstill straddling the bicycle. An expended .40 caliber shell casing was recovered approximately three feet away from Villa’s body. Hernandez’s car wasin the street. There was a gunshot hole on the lower portion of the windshield. An expended .40 caliber bullet shell casing was recovered “in line with the front end” of Hernandez’s car. (17RT 4436- 4440; Peo. Exs. 22, 25.) Officer Collette went to 1700 Pacific Avenue. Eight shell casings were in the area. One casing wasin the area of the walkway of the Pacific Avenue Apartment. Four expended casings were found by the doorofthe Pacific Avenue Apartment. Three expended shell casings were in an adjoining yard. (17RT 4440-4443.) Los Angeles County Sheriff's Department Senior Criminalist Dale Higashi examined eight .40-caliber Smith & Wesson expendedcartridge cases, three intact expendedbullets, and bullet fragments. (1SRT 3910- 3914; Peo. Ex. 15.) The bullets were fired from a semi-automatic handgun. (15RT 3917.) The impressions from the casings andtherifling characteristics of the expendedbullets are indicative of a “Glock”pistol. (15RT 3918.) All eight of the expendedcartridge casings werefired from the samefirearm. (15RT 3912.) Although the intact bullets shared general characteristics, it could not be determined whether the expended bullets were fired from the same firearm because there was no specific firearm that could be tested. (15RT 3913-3914.) The large bullet fragments had similar characteristics to the intact expendedbullets. (1SRT 3914.) There was no Glock pistol found to conduct a comparative analysis of the bullets. (SRT 3919.) 19 f. Autopsy Evidence On December9, 1996, Los Angeles County Coroner’s Department Forensic Pathologist Thomas H. Gill performed an autopsy on Villa. (15RT 3927.) Villa suffered a single gunshot wound, which entered his right eye. The bullet passed through Villa’s eye and through his brain tissue. (1S5RT 3928-3930.) Dr. Gill opined that Villa’s gunshot wound was inflicted from a weapon that was fired from approximately “zero to eighteen inches.” (15RT 3931-3932.) A toxicology screening was conducted and showedthat Villa had a .09 blood alcohol level. (1SRT 3932-3933.) On December 16, 1996, Los Angeles Corner’s Department Deputy Medical Examiner Suko Jack Wang performed an autopsy on Mario. (16RT 4152.) Mario had suffered two gunshot wounds: one gunshot . wound to the chest and anotherto the left forearm. (16RT 4152-4153; Peo. Ex. 5 [photographs].) The gunshot wound to Mario’s chest wasfatal. The bullet lacerated Mario’s heart, where it was lodged. (16RT 4154-4155.) The gunshot woundswere notinflicted from close range. (16RT 4155- 4156.) A toxicology screen was conducted. At the time of his death, Mario had a blood alcohol level of 0.17 and a methamphetaminelevel of 0.11 microgram per millimeter. (16RT 4156.) B. Defense Evidence 1. Anna Granillo’s Whereabouts During the Shooting On December6, 1996, Sinsuntestified that he was inside the bedroom with Anna whenthe shooting occurred. Anna was in Sinsun’s presence during the entire time of the shooting. (17RT 4492-4494.) Sinsun was a former memberofthe ESL. (17RT 4495.) Sinsun wasat the Pacific Avenue apartment for approximately 45 minutes to an hour before the 20 shooting occurred. Annahadleft the bedroom on several occasions. Sinsun was unsure whether Anna was doing her laundry. (17RT 4498- 4500.) Sinsun did not rememberthe period of time that Anna wasin the bedroom before the shooting. (17RT 4501.) Sinsun had previously testified that he did not recall whether Anna wasinside the bedroom before the shooting. (17RT 4502.) Long BeachPolice Officer William Jarman took a statement from Anna. Anna stated that she was with Sinsun in the bedroom when she heard gunshots. Anna dropped to the floor and neverleft the bedroom. (17RT 4532-4534.) Sinsun stated that he was with Anna, heard several gunshots, dropped to the ground, and that Annaneverleft the bedroom. (17RT 4534.) 2. The Circumstances Surrounding Appellant’s Conversation with Frazier Frazier had a telephone conversation with appellant after the preliminary hearing. When Frazier stated, “J spoke to Troub man and I’m trying to get a hold of the dude so J can find out what happenedin there,” Frazier was referencing the preliminary hearing. Frazier wanted the transcripts because he wanted to know what happenedat the preliminary hearing. (17RT 4541-4543.) When Frazier stated, “Well who are these people, get the transcripts,” Frazier was not concerned aboutthe identity of the witnesses, but the content of their testimony. (17RT 4553-4554.) Frazier’s next door neighbor was named “Troub.” Frazier did not state “Little Troub.” (17RT 4554-4555.) Frazier had stated, “Yeah, I gave him some and I had found twopistols in the garage here.” He madethis statement because he was having a yard sale and found twooldrevolvers, which he gave to a neighbor because Frazier was on parole. (17RT 4543- 4545.) Frazier had never seen Sherman before the court proceedings. (17RT 4547.) 21 Frazier “somewhat”recalled appellant stating that, “They just need that D.A.hit, that’s who the nigger need hit.” Frazier believed that appellant madethe statement because he was upset. Appellant was not telling Frazier to “hit a D.A.” (17RT 4546-4547.) In addition, “hit” could mean “a whole lot of things.” Frazier was unsure what appellant meant when heused the term “hit.” (17RT 4560.) Darlene Garrett-Frazier, Frazier’s wife, testified that the two pistols found in the garage belonged to her ex-boyfriend. (18RT 4575-4578.) Garret-Frazier also stated that she did not know anyone namedTroub. (18RT 4594.) 3. Sherman’s Whereabouts Debra Lincoln was Sherman’s step-mother. In 1995, Sherman was living with Lincoln in Modesto. He was employedat a car wash and attended Modesto Junior College. Later, Lincoln and Sherman’s father separated. (18RT 4597-4599.) Sherman had been incarcerated at the California Youth Authority because he had committed an armed robbery. On July 12, 1995, Shermanwasparoled to live with Lincoln in Modesto. As a condition of Sherman’s parole, he was ordered to stay in Modesto and ordered not to associate with people he knew to be gang members. (18RT 4629-4633, 4662-4664.) Sherman wasliving in Modesto in November of 1996. Lincoln had seen Sherman in Modesto before Thanksgiving. (18RT 4599-4602.) Curtistine Hymes was Sherman’s ex-girlfriend and Lincoln’s niece. In 1996, Hymestestified that Sherman hadleft Modestotwo days before Thanksgiving to go to Long Beach. (18RT 4680-4684.) 4. Robert Elder’s Accountof the Shootings Robert Elder’s testimony from the first trial was read into evidence. (18RT 4781.) Elder was a neighbor of Hernandez. Elder heard three 22 gunshots. He looked downstairs and saw a man with a gunin his hand. The man was“stocky,” was wearing a navy pea coat, and hadhis hair styled in “a big afro.” The man was walking eastward towards Long Beach Boulevard. The man entered a “little Nissan car and drove off.” (8RT 2323-2327.) Elder went outside. Hernandez had gotten out of his car and was walking towards his house. A man on a bicycle had been shot. He was trying to stand up andcollapsed. Elder called 911, and later gave a statement to the police. (8RT 2330.) Becauseofthe rivalry between Hispanic and Black gangs, the area was dangerous for young men. (9RT 2348.) C. Penalty Phase Evidence 1. Aggravating Evidence a. The Murderof Carl Milling On August 27 1990, Long Beach Police Sergeant Keith Gregfrow was called to a homicide scene. Carl Milling was lying face down with his hands tied behind his back with a phone cord. Milling had suffered two gunshot woundsin his upper back. (2ORT 5279-5280.) A neighbor reported hearing gunshots and seeing two people running from the scene of the crime. (2ORT 5283.) On August 26, 1990, Lakisha Johnson wasliving with Milling, who washer boyfriend. That evening they brought three friends to the house, one ofwhom wasappellant. The three friends stayed until after midnight. Johnson subsequently fell asleep on the couch, and was awakened by Milling at approximately 2 a.m. He asked for Johnson brother’s phone numberandthen left. When Milling returned, men wearing masks entered the house, put guns to Milling and Johnson’s heads and told them to lie on the floor with their heads down. The men demanded money. Oneofthe 23 men took Johnson outside to the garage. Johnson heard gunshots. Johnson recognized one of the men as appellant, because one of his eyes was “droopy.” (2IRT 5304 -5327.) Long Beach Police Officer Dennis Robbins interviewed Alerey Ambrose, who told Officer Robbins that appellant stated he was a member of the RTC and that he was going to commit a robbery. Ambrosetold Officer Robbins that appellant showed Ambrosea rag that he planned to use as amask. Appellant stated that he had met at someone’s house and then went over to Milling’s house. (21RT 5345-5348.) Ambrosetestified that he was at Milling’s house with appellant on August 26, 1990, but denied having madethe statements incriminating appellant in the murder to Officer Robbins. (21RT 5330-5338.) The case wasstill open and no one had been charged. (21RT 5350.) b. The Carjacking of Sarom Sao On June 6, 1990, Sarom Sao wascarjacked at gunpoint by a group of three to four black men, including appellant. During the carj acking, appellant held the gun, pulled Sarom out ofhis car by his collar, and told him that he would shoot him if he called the police. Sao’s car was returned a week later. Although Sao picked appellant’s photograph from a photographic lineup,he later told the district attorney that appellant was not the perpetrator. Sao lied to the district attorney about this because he was afraid. (21RT 5371-5377.) Long Beach Police Officer Terry Madison saw appellant riding in the passenger seat of Sao’s car three days after it was stolen. (21RT 5387- 5390.) . c. The Robbery of Artis Lisby On May 15, 1991, Artis Lisby was robbed at gunpoint. The robber was someone whom Lisby owed moneyfor a drug transaction. During the 24 robbery, the man shot his gun in the air and drove off. Lisby told the police that appellant was the robber. However, afterwards, Lisby claimedthat appellant did not commit the robbery. (21RT 5397-5408.) Lisby told Officer Stolpe that he and appellant had argued over money that Lisby owed appellant. Appellant pulled out a gun,fired a shot, and then took off running. Lisby further told Officer Stolpe that appellant - returned with a larger gun with a towel wrapped aroundit, and then took off in a black car with someone else. (21RT 5491-5496.) d. The Murder of Ronald Broussard On September23, 1991, appellant was arrested for the murder or Ronald Broussard. Appellant had been identified from a photographic lineup by Armando Hernandez, an eyewitness to the murder. Appellant told Long Beach Police Officer Timothy Cable, the investigating detective, that he wasasleep at his mother’s house when the shooting took place and that his mother woke him upto tell him about the shooting. Appellant told Officer Cable that Broussard, whom appellant referred to as “Chubby,” had been shot by a Mexican who waskilled the next night. Hernandez did not identify appellant in a subsequentlive lineup, and the case was dismissed. (21RT 5411-5438.) e. The Shooting of Matthew Ferguson and Quincy Saunders On April 25, 1990, at approximately 11:30 p.m., Matthew Ferguson had just returned home from his job as a security officer. Ferguson heard shots being fired from his backyard and from the front of his home. One of the shots hit Ferguson in the foot. Ferguson did not see the person who shot him. (21RT 5465-5467.) ‘The same night Quincy Saunders wasshot in the hand and buttocks. (21RT 5469-5473.) Appellant was detained becausehefit the description of the shooter. (21RT 5449.) 25 f. Possession of a Loaded .32 Revolver On June 14, 1990, while serving a search warrantas part of a drug investigation, Long Beach Police Officer Garth Miller found a loaded .32 revolver in appellant’s pants pocket. (21RT 5499-5501.) g. The Robbery of Charles Loch On April 16, 1992, appellant admitted to robbing Charles Loch. (21RT 5479-5480.) h. Victim Impact Testimony Anna Munguia was Mario’s mother. Mario’s murder hurt Anna Munguia. Mario was not involved in gangs and worked at an AM/PM store. (21RT 5520- 5528.) Inez Villa Uriarte was Villa’s sister. Villa was 36 years old. He was not a gang member. He was employedas a construction worker. Villa was survived by his wife and four young children. (21RT 5509-5513.) Margarita Rodriguez is Villa’s widow and the motherofhis four children. Villa was a good man and was employedas a construction worker. Rodriguez is getting money from the county. Villa’s children have been affected “a lot” by their father’s death. (21RT 5530-5534.) 2. Mitigating Evidence a. Valerie Williams Valerie Williams, appellant’s maternal grandmothertestified that appellant was a sweet, obedient child and a goodfatherto his children. All of appellant’s brothers had spent long periodsof incarceration in prison. Appellant’s father had been addicted to drugs and alcohol. Appellant’s mother was a devout Christian. Williams and appellant’s mother had done the best they could raising appellant. (21RT 5538-5551.) 26 b. Robert Robinson Robert Robinson worked for a gang prevention/intervention program. Robinson had brought appellantto talk to kids to dissuade them from joining gangs. Robinson determined that appellant was no longeran active gang member, and he was hopingto hire him to work with the program. Hefelt appellant was sincere about wanting to help the community and changehis life. (SIRT 5584-5581.) c. Helene Cummings Helene Cummings wasa 29-year employee ofthe Long Beach Parks and Recreation Department. Cummings had knownappellanthis entire life. Appellant had been a good child. Appellant told Cummingsthat he wasgoing to get his life together. Cummings was not aware that appellant was a gang member. (22RT 5590-5597.) d. Jonathan Chaney Jonathan Chaney was the teen director at the Boys and Girls Club of San Pedro and the junior varsity basketball coach at San Pedro High School. Appellant and Chaney played basketball together. Appellant was involved in community efforts to stop gang violence and had participated in negotiating a gang truce about 1992 or 1993. (22RT 5602-5607.) e. Barbara McCoy Barbara McCoy knewappellant his entire life. Appellant had been a good child and was a goodathlete in school. Appellant was a good father. (22RT 5618-5632.) f. Shawn Williams Shawn Williams was appellant’s classmate. Williams has known appellant for over 17 years. Williams described appellant as good-natured and kind-hearted. (22RT 5632-5654.) 27 g. Murise Stinson Murise Stinson was a minister. Stinson had known appellant for approximately 10 years. Appellant was working with the recordingartist “Snoop Dog” on a career in music. Appellant had a close relationship with his children. (22RT 5677-5685.) h. Rickey Gipson Rickey Gipson was employed by the Long Beach Unified School District as a gang suppression specialist. From 1983 to 1988, Gipson was aware that appellant was a good basketball player. (22RT 5698-5701.) i. Lolitha Jones Lolitha Jones has known appellant for over four years. Appellant had a very goodrelationship with his children. (22RT 5702-5713.) j. Vanessa Gaskin Vanessa Gaskin has known appellant for approximately 15 years. Appellant has a goodrelationship with his children. (22RT 5714-5721.) k. Doris Vaughn Doris Vaughn is appellant’s mother. She testified about appellant’s . father’s problems with drugs and alcohol. Appellantdid not respect his father because of his addiction problems. Vaughn did not know about appellant’s gang involvement. (21RT 5721-5736.) ]. Mellisa Bedolla Melissa Bedolla was appellant’s girlfriend and motherofhis three children. Shetestified that appellant was a devoted father. Bedolla was half-Mexican. Appellant was close to her Mexican father. Bedolla denied knowing about appellant’s gang involvementor.criminal record. QURT 5739-5749.) 28 ARGUMENT I. THE TRIAL COURT PROPERLY EXERCISED ITS DISCRETION WHENIT RULED THAT MUNGUIA’S LAY OPINION ABOUT WHETHER THE EVIDENCE AGAINST APPELLANT WAS WEAK WAS SPECULATIVE AND THAT DETECTIVE COLLETTE’S STATE OF MIND DURING THE INVESTIGATION WAS IRRELEVANT Appellant contends that the trial court abused its discretion whenit restricted appellant from questioning Munguia, Anna, and Detective Collette about a statement made by the prosecutor regarding the strength of the evidence in the case. (AOB 39-50.) Appellant argues that a statement made by the prosecutor to Munguiathat “the case against appellant was weak, and that without an eyewitnessto identify [appellant], appellant wouldlikely ‘walk’” would impeach Anna by showing that Anna had a strong motiveto fabricate her testimony. (AOB 39-40.) Appellant asserts that the statement was not hearsay because it was evidence of Munguia’s state of mind and would impeach Anna’s testimony. (AOB 44-45.) Appellant claimsthat the restriction deprived him ofhis constitutional rights to confrontation (AOB 45-47) and to present a defense (AOB 47-49). Respondentdisagrees and submits that the trial court did not restrict appellant’s cross-examination of Munguia or Anna during appellant’s retrial. At thefirst trial, the prosecutor objected to the admission of the prosecutor’s statement to Munguia on hearsay grounds, and the trial court excluded any such testimony from Munguia and Anna concerning a statement made by the prosecutor about the strength of the case. However, during the retrial, there was no such objection orrestriction. Appellant simply asked Munguia whetherthe case against appellant was weak, without reference to any statement madeby the prosecutor who conducted the first trial. The prosecutor at the secondtrial objected on speculation grounds. Thetrial court sustained that objection. Appellant, as the 29 proponentofthe testimony, failed to attempt to meet his burden of establishing the foundational requirements for Munguia’s lay opinion testimonythat the case against appellant was weak. Appellant did not ask Munguia about any statement madebythe prosecutor about the strength of the case. Appellantalso did not ask Anna about any statementby the prosecutor. Because there wasnoruling or stipulation that the objection and rulings in the first trial would be deemed to be renewed or otherwise carried over to the secondtrial, appellant’s claim that the trial court erred when it excludedor restricted Munguia’s or Anna’s testimony has been forfeited. Furthermore, the trial court did not abuseits discretion whenit sustained the prosecutor’s objection that Munguia’s testimony that the case against appellant was weak wasspeculation. Moreover,the trial court did not abuseits discretion when it found that Detective Collette’s state of mind wasirrelevant andthat his testimony on about the prosecutor’s statement was inadmissible because it contained multiple layers of hearsay. In any event, any alleged error was harmless. A. Relevant Proceedings During appellant’s first trial, Annatestified that, on the night of her brother’s murder, she did not wantto talk to the police. She had lied when she told the police that she was in the back bedroom and did notsee the shooter. She did not know that Mario’s murderer wasontrial until Munguia informed her. She felt guilty for not coming forward and contacting Deputy District Attorney (“DDA”) Patrick Connolly.” (7RT 1913-1914.) | *> The prosecutor during appellant’s first trial was DDA Patrick Connolly. (See 1RT 1.) For purposesofclarity, appellant will refer to (continued...) 30 | On cross-examination, Annatestified that she spoke with Munguia on December8, 1997. Appellant attempted to elicit testimony regarding what Munguia told Anna about Munguia’s conversation with DDA Connolly. Specifically, appellant sought to question Munguia on what DDA 66.Connolly’s “words were”i.e., “[t]hat [DA Connolly] thought the case was weak and needed additional witnesses.” (7RT 1927-1928.) DDA Connolly objected on hearsay grounds. Appellant argued that the evidence was relevant to “state of mind” and “goes to bias and motive.” (7RT 1928- 1929.) Thetrial court ruled that appellant could ask Anna about the “result of the conversation with [Munguia], did you come forward, et cetera, but not the words of [DDA Connolly] to [Munguia].” (7RT 1929.) Thetrial court excluded the “statement by [DDA Connolly]- - or any statement by [Munguia] about what [DDA Connolly] said about the evaluation of the case.” (7RT 1930.) Thetrial court suggested to appellant that he ask a “closed-ended question” about whether Munguia “instruct[ed] [Anna] to testify, come forward to testify because [Munguia] told [Anna] that they had to have [Anna’s] testimony or needed [Anna’s] testimony or whatever it was that [Munguia] told her. I want to avoid a statement by [DDA Connolly] to [Munguia].” (7RT 1931.)°° Appellant then asked Anna whether“as a result of that conversation [Munguia] had with [DDA Connolly], that she informed you that they needed yourtestimony[?]” (7RT 1931-1932.) Anna replied that Munguia (...continued) DDA Connolly by name, in order to avoid confusion with the prosecutorat the second trial, DDA Steven Schreiner. 26 Respondentnotes that if appellant wanted to makein inquiry into Munguia’s state of mind or impeach Annawithout reference to a statement made by DDA Connolly, appellant could have simply asked Munguia whether she feared that appellant would not be convicted if she did not find additional witnesses for the prosecution. 31 “didn’t tell me like that.” Rather, Munguia and Anna were “talking.” Munguia told Annathat she neededto tell “the truth.” Anna then “started telling her [the truth].” (7RT 1932.) Later, a mistrial was declared and the case wasset for retrial. QRT 2556.) DDA Connolly was transferred to another unit (1ORT 2650-2651) and the case was reassigned to DDASchreiner (1ORT 2654, 2656). There does not appearto be a ruling orstipulation that the objections and rulings in the first trial were deemed to be renewed or otherwise applied during the retrial. Duringretrial, appellant cross-examined Munguia. Munguiatestified that she had a conversation with DDA Connolly on December8, 1997. As a result of that conversation, Munguia wasofthe state of mind that she needed to obtain additional witnesses. Munguia provided DDA Connolly with one additional witness, Anna. Anna had not come forward as a witness before that time. (14RT 3708-3709.) Defense counsel asked Munguia,“Isit true that as a result of that conversation with [DDA] Connolly . . . that you were ofthe state of mind that you needed an additional witness was because the case was weak, correct?” The prosecutor objected on speculation grounds. Thetrial court sustained the objection. Defense counsel did not attempt to lay any foundational grounds for lay opinion testimony by Munguiathat the evidence against appellant was weak. Munguia then testified that she spoke to Anna after her conversation with DDA Connolly and that Anna came forward at that time. Defense counsel did not ask Munguia whether DDA Connolly had stated to Munguiathat the case against appellant was weak. (14RT 3709.) Munguia further testified that she had felt the she needed to obtain additional witnesses for DDA Connelly. Munguia knew that Arthur and Casper were outside when the shootings occurred. They had witnessed the 32 shootings, but refused to come forward and cooperate. Arthur and Casper were gang membersand it was “against gang credo”to testify and cooperate with authorities investigating crimes. (14RT 3721-3723.) DDA Connelly asked Munguia whether Munguia knew anything and whether Munguia would help him. Munguia knew that Anna “knew things, but she did not want to come forward and not talk to anyone.” (14RT 3723.) Anna did not wantto talk to anyone about the shooting, even Munguia. Munguia asked Annato talk to DDA Connelly. Munguia did not tell Anna that she wanted Annato say anything in particular. Munguia just asked Anna to talk to DDA Connelly, “if she knew aboutit.” (14RT 3724.) | Munguia had not told anyone that Anna wasa potential witness prior to Munguia’s conversation with DDA Connelly. Munguia did not know what Anna would say to DDA Connelly because Anna and Munguia had not been in contact for approximately one year. (14RT 3725-3727.) Annatestified that she had not-spoken to Munguia for overa year... Anna had a conversation with Munguia. Munguia informed Annathat there wasa trial involving Mario’s murder. Munguia told Annathat she had a conversation with the district attorney.”’ As a result of the conversation, Munguia asked Annato call DDA Connolly. Anna called DDA Connolly and gave him a statement. She had never spoken to anyone about what she witnessed that night. Appellant did not ask Anna about any statement made by DDA Connolly to Munguia aboutthe strength of the case against appellant. (1SRT 3801-3804.) Later, appellant also asked Officer Remine about the conversation between DDA Connolly and Munguia. Officer Remine was aware that Annahad given a statement on the day of the murderthat she could not 77 Although DDA Connolly was not referred to by name,it appears that he wasthe “district attorney.” 33 identify anyone andthat she did not leave the bedroom. (17RT 4349- 4350.) In November of 1997, Officer Remine spoke with Munguia about additional witnesses. At that time, Munguia did nottell Officer Remine that Anna had witnessed the shooting. (17RT 4346-4347.) | Around December 8, 1997, Officer Remine was contacted by DDA Connolly informing him that he should contact Anna. DDA Connolly stated that he had a conversation with Munguia and toldOfficer Remine that Anna was a potential witness. (17RT 4346.) Officer Remine did not have a conversation with DDA Connolly “regarding his conversation that he may have had with Veronica Munguia.” (17RT 4350.) Defense counsel then asked Officer Remine about a conversation between DDA Connolly and Munguia. Officer Remine stated that he knew nothing about that conversation. Officer Remine and Detective Collette were not present during a conversation between DDA Connolly and Munguia that occurred on December8, 1997. (17RT 4345-4346.) Defense counsel then asked Officer Remine, “Okay. Now,sir, you were present when myself and. . . my investigator interviewed Veronica Munguia regarding her conversation with the district attorney, correct?” Officer Remine stated that he had norecollection of the interview. (17RT 4351.) Afterwards, appellant asked Detective Collette whether he was present during an interview between defense counsel and Munguia, wherein Munguia had stated that she had a conversation with DDA Connolly on December8, 1997. Detective Collette had heard Munguiastate that, as a result of the conversation with DDA Connolly, Munguia spoke with Anna. Munguiastated that she felt obligated to find additional witnesses. Appellant then asked Detective Collette, “Do you recall Miss Munguia expressing to my office, to myself and my investigator, that she felt 34 obligated as a result of the conversation she had with [DDA Connolly] regarding the evidence in the case?” (17RT 4460.) DDASchreiner made a request for a sidebar, which wasgranted. (17RT 4461.) DDA Schreiner objected to defense counsel’s line of question because it appeared that appellant was “trying to move into an area wheresheis going to get a characterization or opinion of [DDA Connolly] as to the relative strength of the case and suggest[it] to the jury.” DDA Schreiner stated that he “understood it is certainly fair ground to suggest there is some sort of inducement to Miss Munguiathat resulted in her bringing in these people,” but did not want any reference of what transpired at the first trial. (17RT 4461-4462.) Defense counsel responded that the evidence was relevant to Detective Collette’s [“the lead detective”] state of mind and what Detective Collette “did with that statement.” (17RT 4462.) The trial court asked defense counsel howthis line of questioning to Detective Collette was relevant, stating, “Even though that’s what [DDA Connolly] thought, how does that help this jury determinethe facts of the case as it is presented now?” (17RT 4462.) Defense counselreplied, “It goes to the fact as to why Veronica Munguia wentto her sister Anna andit brings up that whole thing. She told Annathat this is a very weak case, we need someone to come forward. Anna says, ‘Okay, I saw everything.’ It goes to that, Your Honor.” (17RT 4463.) Thetrial court found that the line questioning was irrelevant and was not proper impeachment of Anna, stating “Well, the person to ask about that is Anna Granillo, not the detective, not this detective.” (17RT 4463.) The prosecutor further argued that DDA Connelly’s opinion about the strength of case would be inadmissible hearsay. The prosecutor argued that, if the statement was admitted, he would have to call DDA Connelly as a witness to explain his opinion, which would result in DDA Connelly 35 offering his opinion of appellant’s guilt or innocence. (17RT 4463.) The trial court agreed andrestricted defense counsel from asking Detective Connelly any questions “concerning an opinion offered by [DDA] Connolly concerning the strengths or weaknessesofthe case,” but allowed appellant to question Detective Collette about his interview with Anna. (17RT 4463-4464.) Appellant questioned Detective Collette about Anna’s prior statement on the night of the shooting. Detective Collette was also asked about the circumstances prior to Anna’s statement on December9, 1997, which occurred after Anna had a conversation with Munguia. Moreover, Detective Collette testified that, after the shooting, Sinsun had stated that he was in the bedroom with Anna. (17RT 4464-4468.) B. Appellant Has Failed to Preserve His Claim that the Trial Court Abused Its Discretion by Restricting Munguia and Anna from Testifying about a Statement Made by DDA Connelly Regarding the Strength of the Case Appellant has failed to preserve his claim that the trial court abusedits discretion whenit restricted appellant from asking Munguia or Anna about a statement made by DDA Connelly to Munguia aboutthe strength of the case against appellant. While it may not be necessary to renew an objectionalready overruled in the sametrial [citation], absent a ruling or stipulation that objections and rulings will be deemed renewed and madein latertrial [citation], the failure to object bars consideration of the issue on appeal .... A defendant may not acquiesce in the admission ofpossibly excludable evidence and then claim on appeal that rulings madein a prior proceeding render objection unnecessary. (People v. Clark (1990) 50 Cal.3d 583, 623-624, 268 Cal.Rptr. 399, 789 P.2d 127, fn. omitted; People v. Richardson (2008) 43 Cal.4th 959, 1002 [rej ecting the defendant’s argumentthat his objections to the evidence 36 during the first trial, which ended in a mistrial, preserved his claims on appeal becausethetrial court referred to its prior rulings].) Here, onretrial, appellant did not ask Munguia or Anna about any statement made by DDA Connolly about the strength of the case. Although the trial court restricted appellant’s cross-examination of Munguia and Annaon this subject on hearsay grounds duringthefirst trial (7RT 1928- 1931), it did not do so onretrial (14RT 3709; 1SRT 3802). Rather, thetrial court excluded Munguiafrom stating her lay opinion on whetherthe case against appellant was weak on speculation grounds. Onretrial, appellant simply did not ask Munguia or Anna about a statement made by DDA Connelly about the strength of the case against appellant. (14RT 3709.) Accordingly, appellant has failed to preserve the issue for appeal. (Evid. Code, §§ 353, 354; People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 [a reviewing court doesnothave the discretion to consider the merits of a question relating to the admission or exclusion of evidence that has not been preserved for review]; cf. People v. Partida (2005) 37 Cal.4th 428, 431 [although a defendant may arguethat a trial court’s error in overruling an objection had the legal consequenceofviolating due process, a defendant may not argue on appeal the court should have excluded the evidence for a reason not asserted attrial]; see, e.g., People v. Waidla (2000) 22 Cal.4th 690, 717 [the defendant forfeited the argumentthat the evidence should have been excluded because it was inadmissible hearsay because he “never made any objection whatsoeveron that basis”].) C. The Trial Court Properly Found that Munguia’s Lay Opinion Testimony about the Strength of the Case Was Speculative Onretrial, appellant asked Munguia whether the evidence against appellant was weak. The prosecution objected to the question on speculation grounds. Thetrial court sustained the prosecution’s objection 37 as calling for speculation. Appellant did not make an offer ofproof regardingthe admissibility of the evidence and did not rephrase the question. (14RT 3709.) 1. The Trial Court Did Not Abuse Its Discretion WhenIt Sustained the Prosecution’s Objection to Munguia’s Lay Opinion Testimony on Speculation Grounds Thetrial court did not abuseits discretion whenit sustained the prosecution’s objection to Munguia’s lay opinion testimony on speculation grounds. An “appellate court applies the abuse of discretion standardof review to any ruling by trial court on the admissibility of evidence.” (People v. Waidla, supra, 22 Cal.4th at p. 717.) Because Munguia wasnot qualified as a testifying expert, admission of her opinion testimony was governed by Evidence Codesection 800, which requires that a lay witness’s opinion mustberationally based on the witness’s ownperceptions and helpful to a clear understandingofhis or her testimony. (People v. Farnam (2002) 28 Cal.4th 107, 153.) A nonexpert witness’s testimony concerning a particular matter is inadmissible unless the witness has personal knowledge of the matter. (Evid. Code, § 702, subd. (a).) “Against the objection of a party, such personal knowledge must be shown before the witness may testify concerning the matter.” (Ibid.) Moreover, the proponentofthe evidence has the burdento establish this requisite foundation. (Evid. Code, § 403, subd. (a)(2).) The personal knowledge requirement ofwitnesses also applies to hearsay declarants. (People v. Valencia (2006) 146 Cal.App.4th 92, 103-104.) “In the absence ofpersonal knowledge, a witness’s testimonyor a declarant’s statementis no better than rank hearsay or, even worse, pure speculation.” (/bid.) In addition, evidence is properly excluded when the proponentfails to make an adequate offer ofproof regarding the relevance or admissibility of the evidence. (People v. Morrison (2004) 34 Cal.4th 698, 724.) 38 Wherethe relevancy ofproffered evidence depends upon the existence of a preliminary fact, the evidence is inadmissible unless the proponent of the proffered evidence has shownthe existence ofthe preliminary fact by a preponderance of the evidence. (Evid. Code, § 403, subd. (a)(1).) “It is the trial court’s function to determine whether the evidenceis sufficient to permit the jury to find the preliminary fact true by a preponderanceofthe evidence, even if the court personally would disagree.” (People v. Marshall (1996) 13 Cal.4th 199, 832-833, citations | omitted.) “The decision whether the foundational evidenceis sufficiently substantial is a matter within the court’s discretion.” (People v. Lucas (1995) 12 Cal.4th 415, 466.) It is unknown whether Munguia’s belief or opinion about the strength og evidence against appellant was based on her own perception or personal knowledge,”* absent an adequate foundation. Because appellantfailed to lay this foundation, he cannot show thatthe trial court abusedits discretion whenit excluded Munguia’s lay opinion testimony. (People v. Morrison, supra, 34 Cal.4th at p. 724; People v. Navarette (2003) 30 Cal.4th 458, 493 [the proponent of opinion testimony must, upon objection, lay the proper foundation].) . Moreover, Munguia’s lay opinion testimony aboutthe strength of the case against appellant was not helpful to a clear understanding of Munguia’s testimony because her opinion would be of no assistance to the jury. 29 (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77 [testimony *8 Tt appears that, if Munguia had an opinion regarding the strength of the case against appellant, it would have been based on DDA Connolly’s supposedperception. Respondentnotes that, as phrased, appellant merely asked Munguia whether she believed that the case against appellant was weak. (14RT 3709 [“Is it true that as a result of that conversation with [DDA] (continued...) 39 of a lay witness that contains an opinion about the guilt or innocence of a eee defendantis ordinarily inadmissible becauseit is “‘of no assistance to the trier of fact. To put it another way,the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.’”], quoting People v. Torres (1995) 33 Cal.App.4th 37, 47.) As a lay witness, Munguia had nogreater skill than the jury to evaluate the evidence against appellant. (7 Wigmore, Evidence (Chadbourn rev.1978) § 1919,p. 32 [where the witness has “nogreaterskill than the jury in drawing inferences from the kind of data in question []fsJuch a witness’ inferences are inadmissible whenthe jury can be put into a position of equal vantage for drawing them”’].) Furthermore, Munguia’s opinion on the state of the evidence against appellant wasnot a proper subject for lay opinion testimony. (See Jambazian v. Borden (1994) 25 Cal.App.4th 836, 848-849 [a layperson may nottestify on matters which are not proper subjects of lay opinion testimony]; see also People v. Chapple (2006) 138 Cal.App.4th 540, 547 [lay opinion testimony is admissible where no particular scientific knowledgeis required or when the matters observed are too complex or subtle to enable the witness accurately to convey them to court or jury in any other manner].) Here, there was no evidence that Munguia had any legal training or had reviewed the evidence. Whether the case against appellant was weak is simply a subject matter that was too complex for Munguia to accurately convey to the jury. Moreover, the prosecutor’s subjective assessmentofthe strengths or weaknessesofthe case, as related to a witness,is irrelevant and speculative. Thus, appellant has failed to (...continued) Connolly . . . that you were of the state of mind that you needed an additional witness was because the case was weak, correct?’’].) 40 show thatthetrial court abused its discretion when it sustained the prosecutor’s objection on speculation grounds. 2. The Exclusion of Munguia’s Lay Opinion Testimony Did Not Violate Appellant’s Constitutional Rights The exclusion of Munguia’s testimonyat issue did not violate appellant’s constitutional rights. The Constitution guarantees a criminal defendant a meaningful opportunity to present relevant evidence in his own defenseat trial. (See, e.g., Taylor v. Illinois (1988) 484 U.S. 400, 408 [108 S.Ct. 646, 98 L.Ed.2d 798]; Crane v. Kentucky (1986) 476 U.S. 683, 690 [106 S.Ct. 2142, 90 L.Ed.2d 636].) The Confrontation Clause guarantees to a defendant in a criminal prosecution the right to explore witness bias through cross-examination, buttrial courts retain wide latitude to impose reasonable limits inorder to prevent confusion ofthe issues or interrogation that is only marginally relevant. (People v. Harris (1989) 47 Cal.3d 1047, 1091.) States have the powerto formulate and apply reasonable foundational requirements for the admission of evidence. (People v. Ramos (1997) 15 Cal.4th 1133, 1178 [discussing Chambers v. Mississippi (1973) 410 U.S. 284 [93 S.Ct. 1038, 35 L-Ed.2d 297], Skipper v. South Carolina (1986) 476 U.S. 1 [106 S.Ct. 1669, 90 L.Ed.2d 1], and other United States Supreme Court decisions]; see also People v. Phillips (2000) 22 Cal.4th 226, 238.) “As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s right to present a defense.” (People v. Hall (1986) 41 Cal.3d 826, 834.) Here, the application of ordinary rules of evidence did not violate appellant’s constitutional rights to present a defense or to confrontation. (Cf. People v. Boyette (2002) 29 Cal.4th 381, 427-428; see People v. Wilson (2008) 44 Cal.4th 758, 794.) As stated above, appellant did not attempt to lay a foundation for Munguia’s lay opinion about the strength of 4] the case and such testimony would have been irrelevant. (People v. DeSantis (1992) 2 Cal.4th 1198, 1249-1250, 9 Cal.Rptr.2d 628, 831 P.2d 1210 [exclusion of irrelevant evidence does not violate a defendant’s due process, confrontation, or 8th Amendment rights].) Therefore, thetrial court’s ruling sustaining the prosecutor’s objection to Munguia’s lay witness opinion testimony did not violate appellant’s constitutionalrights. 3. Any Alleged Error Was Harmless In any event, any allegederror bythe trial court whenit sustained the prosecution’s objection on foundation grounds was harmless under any standard. An evidentiary ruling, even if erroneous, does not warrant reversal on appeal absent a miscarriage ofjustice. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 (“Watson”).) “[A] ‘miscarriage ofjustice’ should be declared only whenthe court, ‘after an examination ofthe entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reachedin the absence ofthe error.” (People v. Watson, supra, 46 Cal.2d at p. 836.) Moreover, assuming that an evidentiary ruling violated a defendant’s federal constitutional rights, any error would be harmless if it was harmless beyond a reasonable doubt. (See People v. Eubanks (2011) 53 Cal.4th 110, 152 (“Eubanks”) [“[i]n the interest of complete review, we note that even if we were to assume evidentiary error, any error would be harmless, whether assessed under the federal constitutional” under Chapmanv. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (“Chapman’).) Here,it is not reasonably probable that appellant would have been acquitted of Mario’s murder if Munguia had been allowed to opine that she thought the case against appellant was weak. Munguia’s lay opinion about the strength of the evidence against appellant would not have impeached Anna’s testimony placing appellant and Shermanat the sceneofthe first 42 shooting. (See AOB 49-50.) Munguia testified that she had felt the she needed to obtain additional witnesses for DDA Connelly. (144RT 3721- — 3723.) Therefore, the jury was already aware that Munguia was not confidentin the state of the evidence on December9, 1997. Furthermore, Annatestified that she did not witness appellant commit the shooting. (1SRT 3772.) Rather, Granillo’s saw appellant and Sherman in the back alley “scoping” out the apartment building. (14RT 3752-3754, 3758; 1SRT 3764.) She then saw appellant and Sherman approach the apartment building. (14RT 3754-3758; 1SRT 3764-3765, 3783-3784.) Anna’s testimony wasnot the only evidence of appellant’s identity as the shooter. Appellant had a strong motive to commit the shooting of the Pacific Avenue Apartment. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049 [gang evidence mayberelevant in cases not involving a gang enhancementby helping to prove identity, motive, specific intent and other issues pertinent to guilt of the charged crime]; see e.g., People v. Williams (1997) 16 Cal.4th 153, 193.) Appellant was a member of the RTC (15RT 3934-3935, 3939-3940; 17RT 4288-4291, 4404-4407.) Mario was a memberofthe ESL. (14RT 3693-3694, 3712, 3720.) The RTC and the ESL were engaged in a gang war. The Pacific Avenue Apartment wasin the middle of this war. (16RT 4160, 4163, 4234; 17RT 4165, 4298-4300, 4372.) Appellant had recently been physically beaten by a Hispanic gang member (16RT 4177.) Thus, appellant had a strong motiveto retaliate for the beating. (17RT 4394-4396.) In addition, multiple eyewitnesses placed Sherman and appellant at the scene of the crime. Gutierrez testified that she saw Sherman walking slowly past the doorway and glanced in the apartmentshortly before the shootings (14RT 3632-3634, 3647) and that the gunfire camefrom the back alley (14RT 3651). Jaramillo testified that she heard gunfire. Shortly thereafter, Jaramillo saw appellant walking out from the back alley. (16RT 43 4087-4093.) Hernandeztestified that he saw appellant and Villa arguing on the sidewalk by the alley. (I6RT 4244-4245, 4249.) There was ample evidence that appellant and Sherman were together shortly after the shootings. When respondingto a dispatchcall, Officers Anderson and Kohargura saw appellant standing outside the Pine Avenue Apartment. (1SRT 4021-4025; 17RT 4300-4302.) The officers spoke with both appellant and Shermaninside the Pine Avenue Apartment. (ISRT 4025-4026; 17RT 4303-4305.) Later, Rainey told police that appellant and Sherman hadleft the apartment together. Appellant left the door opened so he could get back inside the apartment. Appellant and Sherman were gone for approximately five minutes. Appellant and Sherman then returned together. (16RT 4174-4177, 4204-4206.) Thus, there was ample evidence, aside from Anna’s testimony,thatplaced appellant and Shermanat the scene ofthe shooting,i.e. the back alley. D. Assuming that Appellant Had Attempted to Impeach Annawith a Statement Made by DDA Connolly to Munguia, Any Alleged Error Would Be Harmless As detailed above, appellant did not ask Anna about any statement made by DDA Connolly to Munguia. Thus, the trial court could not have abusedits discretion by excluding such evidence and the exclusion of the evidence could not have violated appellant’s constitutional rights. In any event, even if appellant had questioned Anna about any statement made by DDA Connolly to Munguia, the error would be harmless under any standard. As detailed above, Annadid nottestify that she saw appellant commit the shootings. Rather, she saw appellant and Shermanin the back alley and that they later walked behind her. (SRT 3772.) Evenif appellant had successfully impeached Anna’s testimony, there was ample evidence showing that appellant committed the shooting of the Pacific Avenue 44 Apartment. Asdetailed above, appellant had a strong motive to commit the shootings at the Pacific Avenue Apartment. Multiple eyewitnesses placed appellant Shermanat the scene. Before the shooting at the Pacific Avenue Apartment, Gutierrez saw scoping out he Pacific Avenue Apartmentshortly before the shootings (14RT 3632-3634, 3647) and heard gunfire from the back alley. (14RT 3651). After the | shooting at the Pacific Avenue Apartment, Jaramillo saw appellant walking out from the back alley. Appellant then murdered Villa (16RT 4087-4093), whowasa witness to the Pacific Avenue Apartment shooting (15RT 3845). Hernandez saw appellant and Villa arguing on the sidewalk by the alley and saw him point a gun to Villa’s head. Appellant then shot Hernandez because he witnessed Villa’s murder. (16RT 4244-4245, 4249.) Moreover, Officers Anderson and Kohargura interviewed both appellant and Sherman, whowere together at the Pine Avenue Apartment, shortly after the shootings. (15RT 4025-4026; 17RT 4303-4305.) There was also ample evidence of appellant’s consciousnessofguilt. During his tape recorded telephone conversation with Frazier, it appears that appellant and Frazier were discussing the identity and location of witnesses to threaten them; that appellant made a threat against a deputy district attorney; and that Frazier gave Sherman twopistols to dispose. (3CT Supp. IV 511-515; see, e.g.,. People v. Williams (1997) 16 Cal.4th 153, 201 [attempts to suppress evidence and demonstrates a consciousness of guilt];People v. Tripp (2007) 151 Cal.App.4th 951, 957 [attempt to dispose of or hide contraband indicated a consciousness of guilt]; People v. Rider (1955) 130 Cal.App.2d 353, 355 [attempt to hide murder weapon and other circumstancesarising prior to arrest “all indicated a consciousness of guilt’’].) There was also evidence of Sherman’s consciousness of guilt. (People v. Turner (1990) 50 Cal.3d 668, 694-695 [the jury could infer guilt 45 from the defendantact of leaving crime scene in haste to return to his home town].) Robinson told Detective Herzog that Sherman wasin a hurry to leave Long Beach. (15RT 3952-3954, 4013-4014.) Gilyard told Detective Herzog that Sherman then went to the bus station to go to Modesto. (1SRT 4014-4015.) Thus, there was ample evidence, aside from Anna’s testimony, that placed appellant and Sherman at the sceneofthe shooting, i.e. the back alley. E. The Trial Court Properly Exercised Its Discretion WhenIt Foundthat Detective Collette’s State of Mind During the Investigation Was Irrelevant and Not Proper Impeachment of Anna Appellant sought to ask Detective Collette about statements he may have overheard Munguia make to defense counsel about DDA Connolly’s evaluation of the evidence in the case. (17RT 4460.) The prosecutor objected to appellant’s line of questioning on the groundthat appellant was “trying to move into an area where she is going to get a characterization or opinion ofthe district attorney as to the relative strength of the case and suggest [it] to the jury.” (17RT 4461-4462.) Appellant argued that the evidence wasrelevant to Detective Collette’s state of mind and what Detective Collette “did with that statement.” (17RT 4462.) The trial court asked appellant howthis line of questioning to Detective Collette was relevant. (17RT 4462.) Appellant explained that it would impeach Anna’s testimony. (17RT 4463.) Thetrial court foundthatthe line questioning wasirrelevant and was not proper impeachment of Anna. (17RT 4463.) The prosecutor further argued that DDA Connelly’s opinion aboutthe strength of case would be inadmissible hearsay. (17RT 4463.) Thetrial court restricted appellant from asking Detective Connelly any questions “concerning an opinion offered by [DDA] Connolly concerning the strengths or weaknesses of the case,” but allowed appellant to question Detective Collette about his interview with Anna. (17RT 4463-4464.) 46 1. The Trial Court Did Not Abuse Its Discretion WhenIt Found that Detective Collette’s State of Mind WasIrrelevant Thetrial court did not abuseits discretion when it excluded testimony from Detective Collette regarding Munguia’s statements made to defense counsel concerning DDA Connelly’s statements to Munguia aboutthe strength of the evidence against appellant to show Detective Collette’s state of mind because Detective Collette’s state of mind wasirrelevant. Relevant evidence is defined in Evidence Codesection 210 to mean, in pertinent part, “... evidence . . . having any tendencyin reason to prove or disprove any disputed fact... .” “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210; People v. Clark (2011) 52 Cal.4th 856, 922.) In other words, evidenceis relevantif it “‘‘logically, naturally, and by reasonable 3999 inference’’” establishes material facts such as identity, intent, or motive. (People v. Williams (2008) 43 Cal.4th 584, 633.) Evidence is irrelevant, however,if it leads only to speculativeinferences. (See People v. Kraft (2000) 23 Cal.4th 978, 1035; People v. Babbitt (1988) 45 Cal.3d 660, 684 [‘““exclusion of evidence that produces only speculative inferences is not an abuse ofdiscretion.’’’].) “The trial court has considerable discretion in 399determining the relevance of evidence.’” (People v. Williams, supra, 43 Cal.4th at p. 634; People v. Warner (1969) 270 Cal.App.2d 900, 908.) Whenaskedbythetrial court, appellant stated that the relevance of the challenged line of questioning of whether Detective Collette overheard Munguia’s statements to defense counsel was to show Detective Collette’s state of mind during the investigation. (17RT 4462.) Here, the trial court did not abuse its discretion when it foundthat Detective Collette’s state of 47 mind wasirrelevant. Detective Collette’s state of mind had no tendencyto prove or disprove any material fact. Only by speculative inferences would Detective Collette’s state of mind be relevant to impeach Anna’s testimony. There was no evidence,allegation, or offer or proof that Detective Collette’s subjective state of mind asto the relative strength or weakness of the case was in any wayrelevant to any issue in the case. Thus, thetrial court did not abuse its discretion when it found that appellant’s line of questioning to Detective Collette was not relevant to impeach Anna. In any event, even if the line of questioning to Detective Collette was somehow relevant to impeach Anna,the trial court’s exclusion of such evidence was not an abuse ofdiscretion. A trial court has discretion to exclude impeachmentevidenceifit is collateral, irrelevant, cumulative, confusing, or misleading. (People v. Price (1991) 1 Cal.4th 324, 412; see People v. Wheeler (1992) 4 Cal.4th 284, 296[“the latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowerscourts to prevent criminaltrials from degenerating into nitpicking warsofattrition over collateral credibility issues”].) “A collateral matter has been defined as ‘one that has no relevancy to prove or disprove anyissue in the action.’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) However, “[a] matter collateral to an issue in the action may nevertheless be relevantto the credibility of a witness who presents evidence on an issue... .” bid.) Here, there was no evidencethat Detective Collette conveyed any statement made by DDA Connolly to Munguia to Anna. (17RT 4463.) As the trial court stated, if appellant wanted to impeach Annawiththisline of questioning, “the person to ask aboutthat is Anna Granillo, not the detective, not this detective.” (17RT 4463.) Appellant did not ask Anna whether she was made aware of a statement by the prosecutor on the strength of the case by Detective Collette or Munguia. It was mere 48 speculation that, because Detective Collette overheard a statement by Munguia madeto defense counsel about a statement made by prosecutor concerning the strength of the case, that this would somehow impeach Anna’s credibility. Without more, there was norational inference to be made that Anna fabricated her testimony based on Detective Collette’s state of mind or what Detective Collette knew. Thus,the trial court did not abuseits discretion whenit restricted appellant’s cross-examination of Detective Collette. 2. Testimony That Detective Collette Overheard Munguia Making a Statement Regarding a Statement Made by DDA Connolly about His Evaluation of the State of the Evidence Involved Inadmissible Hearsay _ Anystatement by Detective Collette about a statement made by DDA Connolly to Munguia involved multiple layers of inadmissible hearsay. “A hearsay objection to an out-of-court statement may not be overruled simply by identifying a non-hearsay purpose for admitting the statement. Thetrial court must also find that the nonhearsay purposeis relevant to an issue in dispute.” (People v. Armendariz (1984) 37 Cal.3d 573, 585, superseded by statute on other groundsasstated in People v. Cottle (2006) 39 Cal.4th 246, 255.) Moreover, the admission of multiple hearsay is only permissible where each level falls within a hearsay exception. (People v. Williams (1997) 16 Cal.4th 153, 199, fn. 3.) Here, as stated above, the non-hearsay purpose provided by appellant for Detective Collette’s testimony,i.e., Detective Collettes state of mind, wasnot relevant to any issue in dispute. Moreover, a statement by Munguia to defense counsel about a statement made by DDA Connelly concerning the strength of the case overheard by Detective Connelly involved multiple levels of hearsay. Arguably, a statement by DDA Connelly to Munguia could be non-hearsay, if offered to show that 49 Munguiaacted in conformity with that belief that the case was weak. (People v. Scalzi (1981) 126 Cal.App.3d 901, 907 [evidence of a declarant’s statementis not hearsay ifit “‘is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with thatbelief. The statementis not hearsay, since it is the hearer’s reaction to the statementthat is the relevant fact sought to be proved, notthe truth of the matter asserted in the statement.’”].) However, a statement by Munguia to defense counsel about the | prosecutor’s opinionofthe strength of the case that Detective Collette overheard was hearsay and doesnot fall under any exception. Defense counseloriginally offered the evidenceto establish that Detective Collette [the hearer] acted in conformity with the information he received from Munguia. (14RT 4462.) However, Detective Collette’s conduct during the investigation wasnot at issue in the case. Later, appellant stated that the evidence was relevant to impeach Anna. (14RT 4463.) Thus, appellant did not offer Detective Collette’s proffered testimony for the non-hearsay purpose of showing Detective Collette’s state of mind and ensuing conduct. Rather, appellant soughtto introduce the Munguia’s statementforthe truth of the matter asserted,i.e., that the prosecutor told Munguia that the case against appellant was weak. Thus, the testimony was inadmissible hearsay. (Cf. People v. Mayfield (1997) 14 Cal.4th 668 [a witness’s statement that he told a police officer that the defendant had a gun was not admissible to prove that the defendant had a gun, but admissible for the non-hearsay purposeof establishing the officer’s state of mind and the appropriateness of his ensuing conduct because one ofthe issues in the case was whetherthe officer had used excessive force or behaved improperly in his confrontation with defendant].) 50 Furthermore, appellant did not make an adequate recordattrial to showthat the out-of-court statement would, in fact, have any impeachment value. A statement by Munguia to defense counsel about the prosecutor’s opinion on the strength of the case which was overheard by Detective Collette would impeach Anna only if: (1) Detective Collette told Anna about Munguia’s statement to defense counsel; and (2) Detective Collette told Anna about the statement before she came forwardto the police. The trial record does not demonstrate whether these conditions weresatisfied. Thus, testimony from Detective Collette about a statement made to defense counsel about a statement made by DDA Connolly was inadmissible hearsay. 3. Appellant’s Rights to Confrontation and Due Process Were Not Violated Appellant’s rights to confrontation and due process were not violated whentrial court restricted appellant’s line of questioning to Detective Collette. A criminal defendantstates a violation of the Confrontation Clauseby showingthat he was prohibited from engaging in otherwise appropriate cross-examination designed to show bias on the part of the witness, and thereby to expose facts from which the jury could appropriately draw inferencesrelating to the reliability of the witness. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 679-680 [106 S.Ct. 1431, 89 L.Ed.2d 674].) The Confrontation Clause simply guarantees an opportunity for effective cross-examination; it does not assure a chance to cross-examinein whatever way, and to whatever extent, the defense might wish. (Delaware v. Van Arsdall, supra, 475 U.S.at pp. 679-680.) Here, as the trial court stated, if appellant wanted to impeach and confront Anna about whether she came forward because Munguia hadtold her that DDA Connolly had stated the case against appellant was weak, appellant should have simply asked Anna aboutit. (17RT 4463.) As the 51 trial court’s comments indicated, there was no prohibition against this line ' of questioning ofAnnaon retrial. | Moreover, appellant’s right to due process wasnot violated by the trial court’s restriction of appellant’s line of questioning to Detective Collette. As detailed above, the proffered evidence wasirrelevant and inadmissible hearsay. A criminal defendant “does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” (Zaylor v. Illinois, 484 U.S.at p. 410.) Indeed, “any number of familiar and unquestionably constitutional evidentiary rules authorize the exclusionof relevant evidence.” (Montana v. Egelhoff(1996) 518 U.S. 37, 42 [116 S. Ct. 2013, 135 L. Ed. 2d 361].) As detailed above, Detective Collette’s state of mind wasnot relevant to any issue in the case. (See People v. Cunningham (2001) 25 Cal.4th 926, 998-999 [ “Although the complete exclusion of evidence intended to establish an accused’s defense may impair his or her right to due process oflaw, the exclusion of defense evidence on a minoror subsidiary point does notinterfere with that constitutional right.”].) Thus, the trial court’s restriction of appellant’s questioning of Detective Collette’s did notviolate appellant’s right to due process. (See Taylor v. Illinois (1988) 484 U.S. 400, 410, 108 S.Ct. 646, 98 L.Ed.2d 798 [The accused does not have an unfettered right to offer testimony thatis . . . inadmissible under standardrules of evidence”’].) 4. In Any Event, Any Alleged Error Was Harmless In any event, any alleged error in the exclusion of appellant’s proposed line of question was harmless under any standard. It is... well settled that the erroneous admission or exclusion of evidence does not require reversal except wherethe error or errors caused a miscarriage ofjustice. (Evid. Code, §§ 353, subd. (b), 354.) “[A] ‘miscarriage ofjustice’ should be declared only whenthe court, ‘after an examination of the entire cause, 52 including the evidence,’ is of the ‘opinion’thatit is reasonably probable that a result more favorableto the appealing party would have been reachedin the absenceofthe error.” _ (People v. Richardson (2008) 43 Cal.4th 959, 1001 [citing harmless error standard announced in People v. Watson (1956) 46 Cal.2d 818, 836]; see Eubanks, supra, 53 Cal.4th at p. 152; Chapman, supra, 386 U.S.at p 24.) Here, as detailed above, absent evidence Detective Colette knew that Munguia told Granillo that DDA Connely hadtold herthat the case against appellant was weak or that Detective Collette told Granillo about this statemnt, the evidence wasirrelevant. As detailed above, Anna did nottestify that she saw appellant commit the shootings. Rather, she saw appellant and Shermanin the backalley and that they later walked behind her. (15RT 3772.) Appellant had a strong motive to commit the shootingsat the Pacific Avenue Apartment. Gutierrez saw Sherman walk slowly past the doorway and glancedin the apartment shortly before the shootings (14RT 3632-3634, 3647) and heard gunfire come from the back alley (14RT 3651). After the shootingat the Pacific Avenue Apartment, Jaramillo saw appellant walking out from the back alley and murder Villa. (16RT 4087-4093.) Hernandez saw appellant and Villa arguing on the sidewalk by the alley before appellant murdered Villa. (16RT 4244-4245, 4249.) Appellant appeared startled when he saw Officers Anderson and Kohargura at the Pine Avenue Apartment. He quickly ran inside the apartment and “slammedthefront door extremely hard.” (1SRT 4021-4024; 17RT 4300-4302.) Officers Anderson and Kohargura interviewed both appellant and Sherman, who weretogetherat the Pine Avenue Apartment, shortly after the shootings. (1SRT 4025-4026; 17RT 4303-4305.) During his tape recorded telephone conversation with Frazier, there was ample evidence ofappellant’s consciousness of guilt. (3CT Supp. IV 511-515.) Sherman’s hasty return to Modesto also was 53 evidence of Sherman’s consciousnessof guilt. (1SRT 3952-3954, 4013- 4014.) Thus, anyerror bythe trial court of restricting appellant’s cross- examination of Detective Collette was harmless. Il. THE TRIAL COURT Dip NOT ABUSE ITS DISCRETION WHEN It EXCLUDED ROBERT ROBINSON’S TESTIMONY DURING THE GUILT PHASE Appellant contendsthatthe trial court abusedits discretion when it excluded Robert Robinson’s testimony regarding whether appellant was an active gang member. (AOB 51-73.) Appellant argues that, because the trial court found Robinsonto be the functional equivalent to a gang expert, he should have been allowed to rely on hearsay and opine that appellant was no longer a gang member. (AOB 57-60.) Appellant further argues | that, even if the trial court did not find that Robinson was qualified as a gang expert, hestill should have beenallowedto testify that appellant had a reputation of someone whogave up the ganglifestyle and opine that appellant was no longeran active gang member becausethe testimony would have been admissible as character evidence and/or a properopinion of a lay witness. (AOB 60-63.) In addition, appellant asserts that the exclusion of Robinson’s testimony deprived him of his constitutionalright to present a defense (AOB 63-69) andto fair trial (AOB 69-70). Respondentdisagrees and submits that appellant did not seek to have Robinson qualified as an expert and, therefore his claim that Robinson was qualified to testify as a gang expert has been forfeited. Moreover,thetrial court did- not makea finding that Robinson wasthe functionally equivalent to a gang expert, but rather the trial court found that that Robinson was a lay witness who did not havethe required expertise to opine that appellant was no longer a gang memberbased on Robinson’s observationsalone. Furthermore,the trial court did not abuseits discretion whenit excluded Robinson’s lay opinion testimony that appellant was no longer a gang 54 member based on his observations alone. In any event, any alleged error was harmless. A. Relevant Proceedings A hearing under Evidence Code section 402 was held on the admissibility of Robinson’s proposed testimony. (18RT 4690.) 0 Robinson wasa gang prevention outreach counselor with the Long Beach Parks, Recreation, and Marine Department. The organization’s function was to prevent gang violence and find employment the community’s youths. (18RT 4691-4692.)*! Robinson was a former gang member and primarily worked with gang members or ex-gang members. (18RT 4692.) Robinson had been a memberofthe 21st Street Gangsters. The 21st Street Gangsters were neither a “Rolling 20’s Gang” or a “Crip gang.” As Robinson explained, “[W]e weren’t even nothing then, back in my days. You know,I’m like forty years old, so it was something different then.” (18RT 4696.) Robinson knew appellant because appellant applied for a job through the program. After interviewing appellant, Robinson wantedto hire appellant to work for the organization. (I8RT 4692-4694.) Because everyone working for the organization could no longer be an active gang member, Robinson had to determine whether appellant was in a gang. (18RT 4694-4695.) *° Evidence Code, section 402, subdivision (b) provides thatthetrial court “may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury... .” 3! Although Robinsontestified that the organization workedclosely with the Long Beach Police Department, the only example he provided of the organization’s work with the police wasassisting the police identify victims of shootings. (J8RT 4692.) ** If appellant had not been incarcerated for the current offense, Robinson would have hired appellant. (18RT 4695.) 55 Robinson madethis determination by interviewing appellant, talking to gang membersin the community, and observing appellant’s demeanor. (18RT 4694- 4695, 4699.) When Robinsoninterviewed appellant, appellant stated that he was no longer in a gang and wastrying to gethis life together for the benefit of his children. (18RT 4695.) Robinson also talked to rival gangs in Long Beach including members of the RTC and the ICG about appellant’s gang membership. (18RT 4694, 4697-4698.) Robinson wastold that appellant was no longer a gang member. However, he could not remember whohadtold him that appellant was no longer a gang member, although it was more than one person. (18RT 4698-4699.) Robinson also observed appellant demeanor and opined the appellant was no longer a gang member“just by his conversation, the wayhefitted [sic] in and wastalking to the kids, letting them know there’s otherthings out there letted [sic] me know that his mind wasin a different place.” (18RT 4699.) Appellant offered Robinson’s testimony in response to the People’s evidencethat appellant claimed to be a member ofthe RTC. Specifically, appellant offered the evidence to rebut Officer Schaich’s testimonythat | appellant stated he “gang bang[ed].” (18RT 4700-4701.) Appellant argued that Robinson’s proffered testimony would show that appellant was no longer a gang memberat the time of the murder. (18RT 4700-4702.) 3 Defense counsel had previously argued that Robison’s testimony was admissible to rebut Officer Schaich’s testimony that appellant stated he was a gang member. Defense counsel argued that appellant hadtold Officer Schaich that he no longer “gang bangs” based on an entry on “the great sheet.” However, Officer Schaichtestified that appellant did not makethat statement to Officer Schaich. Officer Schaich did not know the source of the entry. Thus, the trial court denied appellant’s motion to admit the evidence on this ground because there was no evidence that appellant had ever madethe statement. (17RT 4526-4531.) 56 The prosecutor objected to the proffered testimony on multiple grounds. The prosecutor argued that Robinson’s proposed testimony was irrelevant. The prosecutor also argued that, if appellant was offering Robinson’s testimony as character evidence, the prosecution should be allowedto rebut that evidence. (18RT 4702-4703.) Moreover, the prosecutor argued that, pursuant to Evidence Codesection 1220, appellant’s own statement to Robinson that he was no longer a gang member wasinadmissible hearsay (18RT 4703)" and that statements by unknown gang members would also be hearsay (18RT 4704). Furthermore, the prosecutor argued that appellant was attempting to offer lay opinion testimony from Robinson “which the court would never allow an expert of the People to do.” (18RT 4704.) Thetrial court asked appellant, “With respect to the hearsay objection, ... what exception is there for the hearsay objection as to what [Robinson] would repeat about what other persons have told him and what defendant told him?” (18RT 4709.) Appellant stated that he was not offering the testimony for the truth of the matter asserted, but for Robinson’s state of. mind because the testimony would confirm Robinson’s opinion that appellant was not a gang member. (18RT 4709-4710.) Thetrial court stated that Robinson’s state ofmind wasnot an issue in the case. However, thetrial court agreed with appellant that the proposed testimony would be relevant to rebut the prosecution’s evidence, but, aside ** Evidence Code section 1220 providesin part: “Evidence ofa statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to whichheis a party in either his individual or representative capacity ....” Thus, to be admissible under this section, the statement must be offered by a party opposing the party declarant. Because appellant’s statement to Robinson wasoffered by appellant and appellant wasthe declarant, this section would be inapplicable. . 57 from Robinson’s personal observations, Robinson’s testimony would be inadmissible hearsay. (18RT 4710-4711.) Thetrial court tentatively ruled that Robinson could testify to his opinion that appellant was no longer a gang memberbased onhis personal observations. (18RT 4711.) The prosecutor then argued that Robinson’s observation and opinion of whether appellant was a gang member would be character evidence and that, as character evidence, the People should be allowed to rebut that ‘evidence. The prosecution again argued that the evidence wasirrelevant. Further, the prosecutor argued that Robinson should not be allowed to offer his opinion on appellant’s gang membership based on demeanor and behavior because a gang expert would not be allowed to offer such an opinion. (18RT 4712-4714, 4719-4721.) Appellant responded that the evidence wasrelevant to rebut the police officer’s testimony that appellant admitted he was a gang member. Appellantstated that he had “a little issue, but . . . [understood]”thetrial court’s ruling that Robinson could nottestify about appellant’s statement to Robinson that he was no longer a gang member. Appellant askedthetrial court to allow Robinsonto testify about his observations and the screening process involvedin hiring appellantin the organization. (18RT 4714- 4719.) Ultimately, the trial court precluded Robinson from opining that appellant was no longer a gang member because twoofthe bases for his opinion were hearsay, including appellant’s statement to Robinsonthat he was no longer a gang memberand statements by unnamed gang members in the community that appellant was no longer a gang member. Although Robinson would only be allowedto testify to his personal observations, the trial court believed that the jury would be “misled” and would not have the complete information of Robinson’s opinion. (18RT 4721-4723.) Thetrial court further found that Robinson’s opinion that appellant was no longer a 58 gang memberbasedonhis interactions with other people wasnot rationally based on his perception,stating: And I don’t believe that there is sufficient expertise established by Mr. Robinson. He doeshavesignificant history or involvementeither personally with a gang or now morerecently since he is no longer an active gang member- - no longer a gang memberatall, his work with gang members apparently on a daily basis gives him sufficient expertise I believe to be knowledgeable about gangs, but not sufficient based on observation alone of the defendant’s interaction - - and we don’t know how manyoccasions- - with persons on the street to form that opinion. (18RT 4723.) Afterwards, appellant made a record “with respect to the court’s ruling.” Appellant stated that the prosecution was allowed to ask appellant’s mother, “a lay person” whether appellant was a gang member and stated that appellant was offering “the same thing.” However, appellant noted that Robinson was “someone who has more expertise” on gangs than appellant’s mother. (18RT 4723-4726.) B. Appellant Has Forfeited His Claim that the Trial Court Erred by Excluding Robinson’s Testimony Because Robinson Was a Gang Expert Attrial, appellant did not seek to have Robinson qualified as a gang expert and did not argue that Robinson’s proposed testimony was admissible hearsay because it qualified as expert testimony. Rather, appellant argued that Robinson wasa “lay witness” just like appellant’s mother, who had been allowedto testify that appellant admitted that he was a gang member. (18RT 4723-4726.) Because appellant failed to have Robinson qualified as an expert and failed to argue that Robinson’s testimony was admissible as expert testimony, the issue has not been preserved on appeal. (See Evid. Code, § 354, subd. (a) [reversal not warranted on ground that evidence was erroneously excluded unless “[t]he substance, purpose, and relevance of the 59 excluded evidence was made knownto the court”]; see, e.g., People v. Lucas (1995) 12 Cal.4th 415, 462 [the defendant forfeited his claim that the evidence was admissible as a statement against penal interest because defense counsel’s failure to proffer the testimony on that ground deprived the trial court the opportunity to make the determination]; People v. Fauber (1992) 2 Cal.4th 792, 854 [holding that defendant was precluded from asserting forfirst time on appeal that statements were not hearsay because his counsel did not “specifically raise th[e] ground of admissibility” urged on appealin the trial court].) C. The Trial Court Did Not Make a Finding That Robinson Wasa Functional Equivalent to a Gang Expert Contrary to appellant’s assertion (AOB 57 [“while Robinson wasnot formally qualified as a gang expert, the court made a finding that was, for all intents and purposes, functionally equivalent”), the trial court did not makea finding that Robinson was the functional equivalent of a gang expert. Rather, the trial court found that, because Robinson was a lay witness, he could not testify about hearsay statements made by appellant and unnamed gang members anddid not have sufficient expertise to rationally determine whether appellant was a gang memberbased only his personal observations. (18RT 4723.) Moreover, contrary to appellant’s assertion, the prosecutor did not argue that Robinson could not offer the “expert” opinion that appellant was no longeractive in the gang. (AOB 54.) Instead, the prosecutor argued that Robinson should not beable to offer his opinion on whether appellant was a gang memberbased solely on Robinson’s observations of appellant’s demeanorbecause an expert or any other witness would not be allowed to do so, stating: “I don’t believe that it should be allowed that [Robinson] should comein and renderan opinion based on factorsthat I can’t imagine 60 would ever be allowed from another witness.” (18RT 4721; see also 18RT 4713-4714 [“Apparently,it’s going to be suggested by the defense that [Robinson] has somesort of expertise and ability to divine from the defendant’s speech or behavior whether or not he’s a gang member. And I do not think anyonehaseither that ability, and, certainly, no one else would be allowed to render an opinion such as that.”].) Asstated above, appellant did not seek to have Robinson qualified as | a gang expert and did not argue that the out-of-court statements made by appellant and unnamed gang members were admissible because Robinson was an expert witness. This Court should not assumeerror in the absence of a record affirmatively showing that thetrial court made such a finding. (Evid. Code, § 354.) Thus, Robinson could nottestify to the hearsay statements made by appellant and unnamed gang membersthat appellant was no longer a gang member. In any event, Robinson clearly lacked qualification as a gang expert on appellant’s gang, the RTC. Even if relevant, hearsay evidenceis inadmissible “[e]xcept as provided by law ... .” (Evid. Code, § 1200, subd. (b).) Depending uponthenature of the hearsay exception, the law interposes certain foundational requirements. In regards to expert testimony, Evidence Code section 720 requiresthat, against the objection of a party,” the proponent of the evidence must show that the proffered expert “has special knowledge,skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimonyrelates.” (Evid. Code, § 720, subd. (a).) “Whether a person qualifies as an expert in a particular case . . . depends uponthe facts of the case and the witness’s qualifications.” ( People v. Bloyd (1987) 43 Cal.3d 333, 357.) * Because appellant never offered Robinson as an expert, the prosecution did not have the opportunity to object. 61 Here, appellant did not establish that Robinson had anyspecial knowledge of appellant’s gang. Robinson had been a memberofthe 21st Street Gangsters, which wasneither a “Rolling 20’s Gang” nor a “Crip gang.” In fact, when Robinson was a gang member,it does not appearthat appellant’s gang had even existed. (18RT 4696 [“we weren’t even nothing then, back in my days. You know,I’m like forty years old, so it was | something different then.”].) Furthermore, there was no evidence that Robinson had any formaltraining or education on gangs, specifically, gangs in the Long Beach area. Although Robinson was an ex-gang memberand had experience with ex-gang members, this fact alone did not qualify him as an expert on appellant’s gang or whether any person was an active gang memberornot. D. Appellant Has Forfeited His Claim that the Trial Court Erred by Excluding Robinson’s Testimony as Character Evidence under Evidence Code Section 1102 Appellant has forfeited his claim that the trial court erred whenit excluded Robinson’s testimony because it was admissible as character evidence pursuant to Evidence Code section 1102. Appellant did not offer Robinson’s testimony as character evidence. Rather, it appears that appellant made strategic choice not to offer the evidence as character evidence. In criminal cases, the prosecution is generally prohibited from introducing evidence of a defendant’s bad character or reputation in order to prove heor she acted in conformity with that character in committing the: charged offense. (People v. Ewoldt (1994) 7 Cal.4th 380, 393.) A defendant, on the other hand, may introduce “evidence of the defendant’s characterora trait of his character in the form of an opinion or evidence of his reputation” in order to “prove his conduct in conformity with such characteror trait of character.” (Evid. Code, § 1102, subd. (a); Evid. Code, 62 § 1324 [“[e]vidence ofa person’s general reputation with reference to his character or trait of his character at a relevant time in the community in which he then resided or in a group with which he then habitually associated is not made inadmissible by the hearsay rule”’].) However,“[a] defendant whoelicits character or reputation testimony opens the doorto the prosecution’s introduction of hearsay evidence that undermines testimony of his good reputation or of character inconsistent with the charged offense.” (People v. Tuggles (2009) 179 Cal_App.4th 339, 357-358.) Once the door is opened, the prosecution may then pursue an inquiry “‘as to the contents and extent of the hearsay upon which the opinion was based, and may disclose rumors,talk, and reports circulating in the community.’” (Ud. at p. 358, quoting People v. Eli (1967) 66 Cal.2d 63, 78.) “The prosecution may explore opinion-based hearsay by asking whether the witness has heard of statements at odds with the asserted good character or reputation.” (People v. Tuggles, supra, 179 Cal.App.4th at D. 358.) Here, appellant argued that Robinson’s proffered testimony that he wastold by appellant and unnamed gang members that appellant was no longer a gang was non-hearsay becauseit was not offered for the truth of the matter asserted, but to show Robinson’s state of mind. In addition, | appellant argued that appellant’s statement to Robinson that he was no longer a gang memberwas admissible as a “party admission.” However, appellant did not offer the evidence as character evidence. (18RT 4709- 4712.) In fact, the prosecutor noted, “Now,if it’s going to character, that’s one thing. But if we’re talking character, then let’s call it that, and then allow me to respond.” (18RT 4712.) Afterwards, appellant did not state that the evidence was admissible as character evidence, but argued that the evidence wasrelevantto rebut the prosecution’s evidence that appellant was a gang member. (18RT 4714-4719.) 63 Because appellant did not offer Robinson’s testimony as character evidence, the issue has not been preserved on appeal. (People v. Marks (2003) 31 Cal.4th 197, 228 [“A general objection to the admission or exclusion of evidence, or one based on different ground from that advanced attrial, does not preserve the claim for appeal”]; see, e.g., People y. Doolin (2009) 45 Cal.4th 390, 438 [finding that the defendant had forfeited his claim that the trial court had failed to consider the inflammatory nature of the uncorroborated testimony that he raped an ex- girlfriend and mistreated another ex-girlfriend by failing to makethe arguments attrial].) E. The Trial Court Did Not Abuse Its Discretion WhenIt Excluded Robinson’s Lay Opinion TestimonyThat Appellant Was No Longer a Gang MemberBased on His Observations of Appellant’s Interactions with People in the Community The trial court did not abuseits discretion when excluded Robinson’s lay opinion testimony that appellant was no longer a gang memberbased on Robinson’s personal observations of appellant’s interaction with the children involved in the program. (People v. Waidla, supra, 22 Cal.4th at p. 717 [appellate court applies the abuseof discretion standard of review to any rulingby trial court on the admissibility of evidence”].) Expert testimony may be “premised on material that is not admitted into evidence so long asit is material of a type that is reasonably relied upon by experts in the particular field in formingtheir opinions. [Citations.]” (People v. Gardeley (1996) 14 Cal.4th 605, 618.) As long the material is the type reasonably relied upon by experts in the field, ordinarily inadmissible evidence can form the properbasis for an expert’s opinion testimony; and the expert witness, whose opinion is based on such inadmissible matters can, whentestifying, describe the material that forms the basis of the opinion. (/bid.) 64 However, Robinson was not an expert witness, but rather a lay witness. As such, Robinson could only express his opinion on whether appellant was active gang memberif it was rationally based on his perception and helpful to a clear understanding of his testimony. (Evid. Code, § 800, subd. (a); People v. Farnam, supra, 28 Cal.4th at p. 153.) Accordingly, Robinson could nottestify to the hearsay statements made by appellant and unnamed gang members that appellant was no longer an active memberofthe RTC. Here,the trial court found that Robinson’s opinion testimonythat appellant was no longer a gang memberwasrelevant. (18RT 4710-4711.) However, the trial court found that Robinson did not have “sufficient expertise” to opine that appellant was no longer a gang member“based on observation alone of the defendant’s interaction[s] ... with persons on the street to form that opinion.” (18RT 4723.) Accordingly, the trial court precluded Robinson’s testimony that appellant was no longer a gang memberbecausethe jury would be “misled” about that opinion because two of the bases for Robinson’s opinion were inadmissible hearsay. Thus, the jury would not have the complete information on Robinson’s opinion. (18RT 4721-4723.) Pursuant to Evidence Codesection 352,“a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate[s] thetrial court understood andfulfilled its responsibilities .....” (People v. Williams (1997) 16 Cal.4th 153, 213.) Under Evidence Codesection 352,the trial court enjoys broad discretion in assessing whetherthe probative valueofparticular — evidence is outweighed by concerns of undue prejudice, confusion or consumption of time . . . [and] its exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious 65 or patently absurd mannerthat resulted in a manifest miscarriage ofjustice.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125, citations omitted, italics in original.) A reviewing court evaluates the exclusion of evidence underthis section for abuse of discretion. (People v. Mungia (2008) 44 Cal.4th 1101, 1130.) Here, appellant cannot showthatthe trial court exclusion of Robinson’s testimony wasarbitrary, capricious, or patently absurd. Evidence may be excluded under Evidence Code section 352 whenits admission “will create substantial danger of . . . of misleading the jury.” Although the evidence wasrelevant to whether appellant was an active gang memberat the timeofthe shooting, there was a dangerthat the testimony would mislead the jury. Robinson could not base hisopinion on inadmissible hearsay because he wasa lay witness. Robinsontestified that his opinion that appellant was no longer an active gang member wasbased on three factors: (1) appellant’s statement that he was no longer a gang member; (2) statements by unnamed gang membersthat appellant wasno longer an active gang member; and (3) Robinson’s personal observations of appellant’s interactions with other people. Absentthe first two factors, Robinson would simply be speculating as to appellant’s gang status based on his extremely limited interactions with appellant when appellant applied for a job at the organization. Therefore, under the circumstances, appellant cannot show thatthe trial court’s decision to exclude the evidence was arbitrary, capricious, or patently absurd because the jury would not have had the complete information about the foundation of Robinson’s opinion. (18RT 4721-4723.) 66 II. THE TRIAL COURT DID NOT ABUSEITS DISCRETION WHEN IT ADMITTED AN AUDIO RECORDING OF A JAILHOUSE TELEPHONE CONVERSATION BETWEEN APPELLANT AND FRAZIER Appellant contendsthat the trial court erred when it admitted into evidence an audio recording of a jailhouse telephone conversation between appellant and Frazier. (AOB 74-102.) Specifically, appellant argues that the evidence wasirrelevant (AOB 87-91), that the trial court abused its discretion because the recording’s probative value was outweighedbyits prejudicial impact (AOB 91-93), that the recording should have been excluded because it was unintelligible (AOB 93-98), and the admission of | the recording violated his right to due process (AOB 98-99). Respondent disagrees. . A. Relevant Proceedings A recording of a telephone conversation between appellant and Frazier was played for the jury. (1SRT 3892-3894, 3897; Peo. Ex. 27.) During the telephonecall, appellant asked Frazier “[w]hat you guys doing?” Frazier stated, “Nothing. I talked to Troub man and I’m trying to get a hold of the dude so I can find out what happenedin there.” Frazier asked, “Who was it? Why they detain you?” Frazier stated that he did not know andasked Frazier was “talkin[g] my homeboylittle Troub.” Appellant then explained what happenedat the preliminary hearingstating, “They pointed cuz out and kept me man.” (3CT Supp. IV 511, italics added.) Later, Frazier inquired into the identity of one of the witnessesat the preliminary hearing, asking appellant: “Okay now, who said something.. . Whois this person, a lady?” Appellant responded, “Twoladies and... . [a] dude, but they ain’t sayin[g] shit. They ain’t sayin[g] nothing. I thinkin[g] 67 they got help. The[jJudge said no doubt in his mindthat he think I’m guilty of the crimes. They pointed the homeboy out.” (3CT Supp. IV 512.) Frazier then asked, “Well who are these people? Get the transcripts.” Appellant responded, “Yeah,I fixin to tell my lawyers man.” Appellant | then stated, “But he said he fixin to goout there and investigate. You know I ain’t got, I ain’t do this cuz, they ain’t go.” Frazier stated, “I know.” Appellant then twice stated, “Don’t even worry aboutit.” Frazier stated, “Man I’m worried about it man. I know how the folksis.” Frazier then stated, “I ain’t just.” Appellant then stated “Nigger need that DA hit that’s whothe nigger need hit.” Frazier states, “Yeah, but you know, you know.” Appellant stated, “You know that’s whatI’m thinking fool. He’s mad because he’d come up with that proof on the nigger.” (3CT Supp. IV 513.) Appellant and Frazier discussed Frazier’s attempts to contact Troub. Frazier stated that he was “waitin[g] on Troub” and that Troub was “supposed to comeby last night, but he went to Pomona...” Frazier then talks about having to see a psychiatrist. Frazier stated that he found two pistols in the garage. Appellant warned Frazier “Don’t be talking over the phonecuz. They’ve got mygirl’s phone tapped.” Frazier then stated, “but anywayI gave them to [T]roub.” (@CT Supp. IV 513-515.) The prosecution moved to admit into evidence this audiotaped recording of appellant’s jailhouse telephone conversation between appellant andhis brother, Tony Frazier. The prosecutor argued that appellant’s statements on the audiotape were admissible as admissions and were relevant because there was reference to “some guns” that were found and given to “Troub” and another reference to “hitting the district attorney.” (14RT 3566-3567.) Sherman objected to the admission ofthe audiotape on the grounds that the audiotape washearsay, that Sherman was denied separate jury, that the admission of the tape would deny Shermanhis rightto 68 confrontation, there was no foundation as to the moniker “Troub,” and that there was “a 352 issue” because “‘it is likely going to be difficult for the jury to understand what’s on the tape.” Shermanalso argued that he could not have given the pistols to Frazier because he had been incarcerated since December6, 1997, before the preliminary hearing, which was conducted on January 9, to January 10, 1997. (14RT 3567- 3571.) Appellant “concurred with the statements [Sherman] has made concerning the accuracy of[the] tape. My office as well is having a difficult time in transcribing the tape.” Moreover, appellant argued that appellant’s statement that he needed the “district attorney hit”? was not relevant because “it is not a terrorist threat case.” Appellant also argued that, because there was no information on the type ofpistols that Frazier wasreferring to, it was “far-fetched, remote” that the pistols would relate to the instant murder. Appellant noted that “[i]t is talking about someone talking to [appellant] saying, “I found twopistols.’ It does not say, ‘I found twopistols at the crime scene’ or ‘these are the two pistols you threw away and gave to me.’” Appellant also objected on hearsay grounds. (14RT 3571-3774.) | The prosecutor argued that the audiotape was admissible as a party admission and as a statement by co-conspirators. (14RT 3577.) The prosecutor respondedthat the evidence was relevant to show appellant’s and Sherman’s “consciousnessof guilt.” The prosecutor argued that the evidence was not “remote” and was relevant. The prosecutor explained that the murders occurred on December6, 1996. The preliminary hearing was conducted on January 9, 1997. Sherman wasnot held to answer and 36 DDA Deborah Cole-Hall was the district attorney that conducted the preliminary hearing. (16RT 4136.) DDA Cole-Hall’s testimony regarding the atmosphereat the preliminary hearing was excluded. (16RT 4148-4150.) 69 released afterwards.*’ The telephone conversation occurred on January 12, 1997. (14RT 3574-3575.) Moreover, the prosecutorstated that the murders werealleged to have occurred during a conspiracy.' The prosecutor explained that the statements were made by co-conspirators and that the evidence ofthe tape showed an ongoing conspiracy and was madeto further the conspiracy. (14RT 3575- 3576.) Furthermore, the prosecutorstated that any statement made by appellant would be admissible as an admission under Evidence Code 1220. (14RT 3576.) | | The prosecutor stated that the transcript was not evidence,but the recordingitself was the evidence. Thetranscript was a toolto assist the jury listening to the recording, but would be collected after the tape was played. During deliberations, the jury would only have the audiotape. The prosecutor did not object to correcting the transcript if changes neededto be made. (14RT 3577-3578.) The audiotape wasplayed forthe trial court. (14RT 3578-3579.) Afterwards, the prosecutor argued that the conversation also involved intimidating witnesses because Frazier asked who the witnesses were and wanted to get the transcripts to locate the witnesses. (14RT 3579.) - Sherman’s counsel contested “who [was] being referred to as “Troub’” because Sherman’s counsel maintained that Sherman had been incarcerated on December9, 1996. In addition, Sherman argued that the words on “page 4 between lines 22 and 26”were unclearand it was speculation as to what was said. Shermanalso argued that a “conspiracy is not demonstrated in any way by [appellant] talking to somebody else.” (14RT 3579-3580.) 37 The prosecutor did not know theexact date that Sherman was released, but knew that Sherman was notheld to answerat the preliminary hearing. (14RT 3577.) 70 Appellant submitted on her previous arguments and concurred with Sherman’s arguments. (14RT 3580-3581.) The prosecutor then argued that the statements were highly relevant “to three areas concerning consciousnessofguilt: disposing or hiding evidence, witness intimidation, murdering a district attorney as well. All those things go to consciousness of guilt, the desire of a co-conspirator not to be convicted of the charged offense.” The prosecutor then stated that Frazier, whom appellant was speaking with, was also a co-conspirator. The prosecutoralso stated that, although the transcript was “substantially accurate,” he was amenable to altering the transcript. (14RT 3581-3582.) Thetrial court ruled that the audio tape was admissible, as follows: “I am going to makea ruling on the admissibility and allow the tape to be admitted. However, to the extent there is a difference with the transcript, if you can agree as to the wording other than this wording for the transcript so that we can amendthis to correct words that may bein error here. I will instruct the jury that the transcript is not necessarily the accurate interpretation of the words from the tape itself which is evidence.” (14RT 3585-3585.) The prosecutor then suggested that thetrial court listen to the audiotape and note how the court interpreted the audiotape because the prosecutor thought “‘it is going to be extremely difficult, if not tmpossible, for the parties here who are advocates on either side to agree on those things ....” The trial court agreed and asked the prosecutor for a copy of the audiotape. (14RT 3586-3587.) Appellant stated that the other person speaking in the audiotape was his brother, Tony Frazier. Appellant stated that he intendedto call Frazier and his girlfriend Darlene Garrett to testify. (14RT 3590-9592.) | The jury was given a copy ofa transcript ofthe tape to assist them. Thetrial court instructed the jury: 71 I’ll remind the jury at this time that the documentthat you’re receiving is not evidencein this case. This is an interpretation of the conversation that is heard on the tape recording. The only reason it’s being provided to youis to help you as youlisten to the tape to understand whatit is that’s being played on thetape. The actual evidencein this case is the tape recordingitself. Now you mayhavea different interpretation for words or sentences that are stated on the tape. You’re to use your interpretation as the evidence, so it’s your interpretation. This is only to provided to you as an aid, and when weare concluded with the playing of the tape, you’ll need to turn back in the transcript that you have. They will not be offered to you as evidencein the case and they will not be available to you in the jury room as you begin your deliberation at the conclusion of all the evidence. It is simply an aid to you to help you understand whatit is that you’re hearing on the tape. So if you have different - - if you hear something different than what is stated on that document,it is - - what you hear is what is evidence for you to consider. (15RT 3895-3896.) The tape was thenplayed for the jury. (1SRT 3897.) B. Appellant’s Recorded Conversation with Frazier Was Relevant to Show Appellant’s Consciousness of Guilt Except as otherwise provided bystatute, “all relevant evidenceis admissible.” (Evid. Code, § 351.) Evidence of witness intimidation may be relevant to prove consciousness of guilt. (People v. Williams (1997) 16 Cal.4th 153, 206, citing People v. Weiss (1958) 50 Cal.2d 535, 554, superseded by statute on another ground as stated in People v. Griffin (1991) 235 Cal.App.3d 1740, 1746.) Moreover, a defendant’s “le]fforts to suppress testimonyagainst himself indicate a consciousnessof guilt on the part of a defendant, and evidence thereof is admissible against him. [Citation.] Generally, evidence of the attempt ofthird persons to suppress testimonyis inadmissible against a defendant wherethe effort did not occur in his presence. [Citation.] However, if the defendant has authorized the attempt of the third person to suppress testimony, 72 evidence of such conductis admissible against the defendant. [Citations.]” (People v. Weiss, supra, 50 Cal.2d at p. 554; accord People v. Hannon (1977) 19 Cal.3d 588, 600 [“the admission of evidence purporting to show suppression or attempted suppression of evidence is erroneousabsent the prerequisite ofproof that the defendant was present at such an incidentor proofof authorizationof suchillegal conduct”], disapproved on another ground by People v. Martinez (2000) 22 Cal.4th 750, 762-763.) To be admissible, there needs to be someevidencein the record which, if believed by the jury, wouldsufficiently support an inference that a defendant attempted to suppress evidence. (Cf. People v. Pensinger (1991) 52 Cal.3d 1210, 1246[finding thatthe trial court did not err in instructing the jury on consciousness ofguilt from attempted suppression of adverse evidence].) Here, there was ample evidence from thetape, if believed bythejury, that would support an inference that appellant was attempting to suppress evidence. From the tape, it was reasonable to infer appellant and Frazier’s references to “Troub,” which was Sherman’s gang moniker, were references to Sherman. Frazier wanted to know what happenedat the preliminary hearing. Appellant asked Frazier if he had talked to “my homeboyTroub.” Appellantthen explained that a witness “had pointed cuz out and kept me man.” (3CT Supp. IV 511.) At the preliminary hearing, Jarmarillo had mistakenly identified Shermanas the gunman,but later corrected himself. (16RT 4100-4101.) When Officer Thrash interviewed Rainey, Rainey referred to Sherman as “Baby Troub.” (16RT 4174-4177, 4204-4206.) Thus, from this evidence, a juror could reasonably infer that appellant’s reference to “Troub” was a reference to Sherman. Frazier stated that he had been waiting for Troub andthat he found two pistols in his garage. Atthat point, appellant warnedFrazier, “Don’t be talking over the phone cuz. They’ve got my girl’s phone tapped.” Frazier 73 then stated that he gave the pistols to Troub. (3CT Supp. IV 513-515.) From this evidence, a reasonable juror could infer that appellant reaction to Frazier’s statement about the pistols indicated a consciousnessofguilt. (See, e.g., People v. Tripp, supra, 151 Cal.App.4th at p. 957 [attempt to dispose of or hide contraband indicated a consciousnessof guilt].) Moreover, from the content of the tape, a jury could reasonably infer that appellant and Frazier were attempting to intimidate witnesses. People living in gang-claimedareasare frequently reluctant to come forward and speak to police for fear of retaliation. (16RT 4178-4180.) Gangs are very successful in intimidating witnesses from testifying in court. It is very commonfor a witness to a crime to not wantto be involvedin the investigation of the crime. (17RT 4378-4379.) The mere presence of a gang memberis enoughto intimidate a potential witness because the witnesses live in the gang’s territory. (17RT 4379.) In fact, at the preliminary hearing, Hernandez wasreluctant and afraid, and Jaramillo was crying and nervousabouttestifying. (17RT 4446-4447.) Frazier was unable to attend the preliminary hearing, but specifically asked appellant for the identities of the witnesses, stating “Well who are these people? Get the transcripts.” (3CT Supp. IV 513.) Thus, the jury could infer that appellant and Frazier were discussing waysto intimidate the witnesses. In addition, from appellant’s statement that he wanted the DA “hit,” the jury could infer that appellant wanted to kill the prosecutor to prevent her from prosecutingthe case. (People v. Wilson (1992) 3 Cal.4th 926, 940 [“Defendant’s actof soliciting the murderofa critical prosecution witness was highly probative of defendant's consciousness of guilt, which in turn wasprobativeofhis identity as the perpetrator of the charged offenses”]; People v. Pensinger, supra, 52 Cal.3d at p. 1246 [finding the defendant’s argumentthat this conversation with the informant about killing a witness was “mere jailhouse rhetoric is unpersuasive” and concluding “the evidence 74 was suggestive enoughto allow the jury reasonably to concludethatit showeda consciousnessof guilt”].) Therefore, the taped conversation between appellant and Frazier was relevant. C. The Trial Court Did Not Abuse Its Discretion When It Admitted Evidence of Appellant’s Conversation with Frazier into Evidence Appellant contends, eveniftape is relevant, the trial court has discretion, pursuant to Evidence Code section 352, becauseits probative value was outweighedbyits prejudicial impact. Appellant argues that the any inference of appellant’s consciousness of guilt was mere speculative and without support from the record. As an example, appellant argues that there was no evidencethat appellant’s references to Troub were references to Sherman. (AOB 91-93.) Appellant is mistaken. As stated above, it was reasonableto infer that appellant and Frazier’s references to “Troub” were references to Sherman, whose gang moniker was “Baby Troub.” (16RT 4175.) Frazier wanted to know what happenedat the preliminary hearing. Appellant asked Frazier if — he had talked to “my homeboy Troub.” Appellant then explained that a witness “had pointed cuz out and kept me man.” (3CT Supp. IV 511.) At the preliminary hearing, Jarmarillo had mistakenly identified Sherman as the gunman,butlater corrected himself. (16RT 4100-4101.) In addition, when Officer Thrash interviewed Rainey, Rainey referred to Sherman as “Baby Troub.” (16RT 4174-4177, 4204-4206.) Thus, it was not speculation that Sherman wasreferred to as Troub in the tape, but a reasonable inference from the evidence. (People v.. Cluff(2001) 87 Cal.App.4th 991, 1002 [“In any given case, one ‘may speculate about any number of scenarios that may have occurred .... A reasonable inference, however, ‘may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [{]...A 75 finding of fact must be an inference drawn from evidence rather than ...a 299 mere speculation as to probabilities without evidence.’”], quoting People v. Morris (1988) 46 Cal.3d 1, 21, disapproved on an unrelated pointin /n re Sassounian (1995) 9 Cal.4th 535, 543, fn. 5.) D. TheTrial Court Properly Denied Appellant’s Motion to Exclude the Recording of Appellant’s Telephone Conversation with Frazier on the Ground Thatthe Recording Was Unintelligible Appellant contends thatthe trial court erred when it denied his motion to exclude the recording of appellant’s conversation with Frazier on the ground that the recording was unintelligible. Specifically, appellant argues that the portion of the recording where appellant and Frazier discuss the gunsin the garage wasnotsufficiently intelligible to be probative. (AOB 93-98.) “TA] tape recording may be admissible even if substantial portions of it are unintelligible.” (People v. Siripongs (1988) 45 Cal.3d 548, 574; People v. Hall (1980) 112 Cal.App.3d 123, 127.) The legal standard for admissionofapartially unintelligible recording requires a balancing of probative value against prejudice. Recordings and written transcriptions need not be completely intelligible as long as relevant material is _ intelligible, and the unintelligible portions would not lead to speculation by the jury or unfairness. (See People v. Polk (1996) 47 Cal.App.4th 944, 952.) Here,the trial court listened to the tape, reviewed the transcript, and made changesto the transcript for accuracy. (1SRT 3850.) Thetrial court was aware of any inaudible, unintelligible portions of the recording, as well as those parts that were clearly intelligible and probative. The unintelligible portions of the recording were marked as “unintelligible” in the transcript. (See 3CT Supp. IV 511-519.) Although Sherman’s counsel argued that it would be speculation as to what wassaid aboutthepistols in 76 the garage, the trial court listened to the tape and denied this argument. Thus,the trial court properly ruled that the tapes were admissible after carefully balancing whethertheir prejudicial impact would outweightheir probative value. Moreover,the portion of the recording discussing the pistols was not unintelligible. The portions of the tape that refer to the pistols were not marked bythetrial court as unintelligible. (CT Supp. IV 514.) In fact, the transcript was accurate. Frazier testified that, during the conversation with appellant, Frazier had stated, “Yeah, I gave him someand J had found two pistols in the garage here.” (17RT 4543-4545.) This corroborates the accuracy ofthe recording and transcript. Furthermore, notwithstanding the portion of the recording that appellant claimed was unintelligible, other portions of the tape also showed appellant’s consciousness of guilt. As stated above, from appellant and Frazier’s discussion of the witnesses identities, appellant’s stated desire that he wantedthe district attorney “hit,” and appellant’s reaction to Frazier’s mentioning ofthe pistols, the jury could infer that appellant exhibited a consciousness of guilt. Thus, the trial court did not abuseits discretion when it admitted the tape into evidence. (See, e.g., People v. Siripongs, supra, 45 Cal.3d at p. 574 [“in spite of unintelligible portions, the tape clearly demonstrated defendant’s efforts to remove incriminating evidence from his home. Comprehensivetranscripts of the tape manifesting his attempt to destroy relevant evidence were madeby both interpreters. Under these facts, we cannot find an abuse ofdiscretion in admitting the tape recording”]; People v. Miley (1984) 158 Cal.App.3d 25, 36 [tape recording and transcripts containing unintelligible parts was not unduly prejudicial as admitted; the trial court listened to the tape, comparedit to the transcript, and madecorrectionsto the transcript for accuracy].) 77 In addition, the trial court did not err when it allowed the jury to use the transcript as a guide whenlistening to the recording. (AOB 95-98.) As stated above, thetrial court listened to the tape, reviewed the transcript, and made changesto the transcript for accuracy. The relevantportionsofthe transcripts were not marked unintelligible. Moreover, Fraziertestified that he madethe statementin the transcript about the pistols during his conversation with appellant. Thus, there is no indication that of the portion of the tape was “so inaudible [that it] could not be accurately transcribed.” (AOB 96.) In any event, the trial court admonishedthe jury that the transcript was simply an aid and that it was to “use your [own] interpretation [of the words] as the evidence. (15RT 3895.) E. Appellant’s Due Process Right Was Not Denied When the Trial Court Admitted the Taped Conversation into Evidence Appellant contends that the admission into evidenceofthe taped recorded conversation between appellant andhis brotherviolated his right to due process. (AOB 98-99.) “‘The admission ofrelevant evidence will not offend due process unless the evidenceis so prejudicial as to render the defendant’s trial fundamentally unfair.’”” (People v. Partida (2005) 37 Cal.4th 428, 439, quoting People v. Falsetta (1999) 21 Cal.4th 903, 913.) “<«