NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. 159648)
Defendant Ronald Salter was convicted after a jury trial of first degree murder (Pen. Code, §§ 187a, 189) arising from the violent shooting death on the streets of Oakland, California of a young man 13 years his junior who lived in defendant's neighborhood, 17-year-old Anthony Custard.
Defendant raises three issues on appeal. He contends, first, that the trial court erred prejudicially in refusing to modify two standard CALCRIM instructions concerning the credibility of an unavailable witness whose preliminary hearing testimony was read at trial, resulting he says in a violation of his constitutional right of confrontation under both federal and state law. Second, he argues the trial court erroneously refused to admit hearsay evidence that someone else had threatened to kill the victim the very day (or, the day before) the victim was killed, which is third party culpability evidence defendant says was both relevant under state law, and admissible notwithstanding its hearsay character under the constitutional principles applied in Chambers v. Mississippi (1973) 410 U.S. 284. Defendant's final argument is that the trial court abused its discretion by admitting evidence of a prior assault he had committed seven years earlier; this, he says, was propensity evidence barred by Evidence Code sections 1101 and, alternatively, 352.
We reject all three contentions and affirm Salter's judgment of conviction.
At approximately 9:00 p.m. on the night of July 24, 2007, the shooting victim, 17-year-old Anthony Custard (nicknamed, "Burger"), and his good friend, 19-year-old Ira Hayes Jr. (nicknamed, "Little Cousin"), were walking together down their neighborhood street in Oakland, California, 69th Street, to the home of 24-year-old Carrington Scott (nicknamed, "Cool C."). Hayes Jr. was on his way there to buy some marijuana from Scott, and Custard had joined Hayes Jr. as Hayes Jr. walked past Custard's house and saw Custard outside talking on his cell phone. Hayes Jr. had lived in the neighborhood all his life. So had Scott. Custard, though, had lived in the neighborhood for only two years, was relatively unknown on Scott's end of the street, and didn't know Scott.
When Hayes Jr. and Custard arrived at Scott's house, someone else appeared to be finishing up a drug deal with Scott outside. When that concluded, Hayes Jr. began speaking with Scott on the sidewalk out in front of Scott's house to do the drug purchase, and Custard was standing off to one side still talking on his cell phone. Scott, who was nervous, noticed Custard's cell phone case on his hip and asked Hayes Jr. if Custard was carrying a gun; Hayes Jr. assured Scott it was just a cell phone case. According to Hayes Jr., Scott then remarked, "I don't want your partner to get knocked off over a phone case." (Scott denied this at trial, claiming he'd said only that he didn't want anyone to get hurt that night.) Custard overheard Scott's comments, got off the phone and exchanged some heated words with Scott who approached and tried to calm him down.
At this point, Hayes Jr. noticed defendant approaching them from across the street trying to see what was going on. Defendant, who was 30, had lived in the neighborhood all of his life; Hayes Jr. had known him since childhood.
What transpired next was the principal dispute at trial.
The prosecution's principal eyewitness was Hayes Jr. According to Hayes Jr., defendant approached and asked what was going on in an attempt to defuse the situation. Custard then pulled a black, semiautomatic gun out from behind him and held it at his side without pointing it at anyone, and told defendant and Scott to back up; Hayes Jr. told everyone to "just be cool," they backed away from Custard, and then he put the gun away and crossed the street while Hayes Jr. went up on the porch. Scott went into the house to get the drugs. As Hayes Jr. waited on the front porch for Scott to return, he saw defendant walk behind the house; when defendant returned from behind the house, he asked Hayes Jr. who Custard was and was skeptical of Hayes Jr.'s response (trying to defuse the situation, Hayes Jr. told defendant Custard was his cousin). Scott then reemerged at the front door of his house and concluded the drug sale with Hayes Jr. Hayes Jr. then descended from the front porch, and noticed Custard had walked back from across the street and was standing next to defendant on the sidewalk in front of Scott's house, engaged in conversation. Hayes Jr. made his way out of the front gate onto the sidewalk and encountered someone he recognized; he bummed a cigarette from that person and then, as he was bending down to light it, with his back turned to Custard and defendant, he heard shots ring out. He turned around and saw Custard on the ground as defendant stood over him, shooting Custard in the chest. Hayes Jr. ducked behind a camper parked on the street and then ran down an alleyway as more shots rang out. He then saw defendant flee on foot down the alleyway too.
Subsequent forensic analysis revealed Custard had been shot ten times: once in the head, and nine times in his torso.
Hayes Jr.'s account was corroborated by two other eyewitnesses. One was a bystander named Shelton Curtis who had been parked nearby in his car. As Curtis bent over to remove a fuse (to prevent vehicle theft), he heard shots and then witnessed the shooting through the rearview mirror of his car. Curtis then saw the shooter bend down and rifle through Custard's pockets, and run away. Curtis didn't get a good look at anyone's faces that night and seemed reluctant to identify anyone to police other than the victim. But Curtis estimated the shooter was "30, 35, not over 40."
Hayes Jr.'s account also was corroborated in large part by Scott's initial statement to police, who interviewed him approximately a month after the shooting. Scott didn't speak with the police when they came to his house the night of the shooting to inquire about it, and defendant admitted that before Scott met with police he told Scott "the whole world" expected Scott to "fold." In his police interview, Scott was at first reluctant to say much. But eventually, he told police he saw defendant shoot Custard in the head and then shoot him again as Custard lay on the ground, after Custard had pointed his gun directly at Scott and threatened to shoot him. Scott also told police that, about two or three weeks later, defendant told Scott he thought Custard was going to kill Scott, and also that he had taken Custard's gun. At the time Scott told police all of this, police had not yet spoken with Hayes Jr. and didn't know what Hayes Jr. would say; all police had known was that someone named "T." might be responsible but had no idea who it was.
Scott had known defendant since early childhood and was friends with defendant's brother, and defendant was a good friend of Scott's older brother. At first, Scott claimed total ignorance of the killing in his police interview. Then later, as he began opening up but before he implicated defendant, he said he was inside his house playing video games when he heard shots fired.
"T." was defendant's nickname.
Defendant regarded Scott as timid (a "scared little ass bitch") and, later from jail, called him "100 percent rat ass." Four years after giving his statement to police, on the eve of trial, Scott recanted the statement and claimed the police had pressured him into framing defendant.
Defendant testified on his own behalf. His version of events diverged from that of the prosecution largely at the point of Custard's argument with Scott. According to defendant, Custard waved his gun around and pointed it at Scott belligerently. Defendant crossed the street over to their side because he just wanted to watch, and see how Scott would handle himself.
Defendant claimed Custard's killer was a young man between the age of 17 and 21 who opened fire while running toward Custard after Custard had fired at him first. The shooter and two other young people had pulled up in a dark-colored car that had stopped in the street just moments before. The shooter and his fellow passenger had emerged from the car with guns drawn. Defendant vaguely recognized the three younger men from the neighborhood but didn't know their names. The car sped off after the shooting, and defendant stayed on the scene briefly to check on Custard. Then he left before police arrived, and went to the store to buy himself a beer.
According to defendant, in addition to Shelton Curtis, three other people witnessed the killing: a friend of Hayes Jr.'s named "Smaller Bound" who had been with Hayes Jr., Custard and Scott when defendant arrived on the scene; another young person from the neighborhood, named "Woe" (or "Little Bra," or "Little Brother"), who showed up on a bicycle in the midst of Custard's argument with Scott, knew the car occupants, and spoke with them briefly before the shooting began, and a person defendant knew from the neighborhood named "Top," who drove up in a white car and came to a stop just as the shooting began. Hayes Jr. had left on Woe's bicycle before the shooting started, and Scott had gone back into his house.
Scott's account at trial corroborated defendant's testimony. Scott testified a friend of Hayes Jr.'s named "Baby Cuz" was there too (a person Hayes Jr. had never heard of); Custard pulled the gun on Scott and pointed it at him; he saw someone ride up on a bicycle he didn't recognize but whom Hayes Jr. knew and addressed as "Woe"; Hayes Jr. left on the bicycle; Scott saw the shooter's car drive up and stop in the middle of the street in front of his house, he went into his house and then heard gunshots, then he heard the car doors shut and the car drive off. Scott also testified that the day after the shooting, he spoke with Hayes Jr. who said he didn't know what happened but apologized for bringing Custard there, and said he saw the car with the young occupants drive up and also saw "Cuz" there too.
The jury heard over three hours of recorded telephone calls the defendant made after his arrest, while in jail awaiting trial. The prosecution argued the calls revealed extensive efforts by defendant to enlist his friends and family members to help him intimidate witnesses—most notably, Hayes Jr. and Scott—and to hide and/or destroy evidence, including a gun. At trial, defendant admitted he "somewhat' tried to obscure his meaning on the calls, testifying he did so because he didn't want to be overheard by other inmates who might try to cut a "deal" with authorities and become informants, and "maybe, sometimes" also because he knew the calls were recorded. But defendant denied any attempt to intimidate witnesses or hide or destroy evidence. We refrain from detailing the calls, which are summarized at length in the respondent's brief, but touch upon representative highlights below.
The jury returned guilty verdicts of first degree murder and felon in possession of a firearm, Salter was sentenced to a prison term of 50 years to life, and this appeal followed.
The Trial Court's Refusal to Modify Standard Jury Instructions Concerning Witness
Credibility , CALCRIM Nos. 226 and 317 , Did Not Violate Defendant's
Constitutional Rights to Confrontation.
Ira Hayes Jr. did not testify at trial; rather, a transcript of his examination at the preliminary hearing was read to the jury. In a series of pre-trial rulings, the trial court determined that the prosecution had made reasonable, good faith efforts to locate Hayes Jr. for trial without success, and that his prior testimony could be utilized instead due to his unavailability. In that pre-trial context, the trial court also made a finding that defendant was responsible for Hayes Jr.'s disappearance.
The court had listened to "about three and a half hours' worth" of the audiotaped jailhouse calls and found, among other things, that there was "an enormous amount of that air time on the telephone focusing on what appears to be this witness and interfering with his ability to freely testify in this case," in conversations between defendant and "four or five or six" separate people. It found there were "[n]umerous references to, 'place the order and I'll take care of it, let me know what you want done, I'm going to get at that person, I'm going to get at that person's father,' things of this nature."
The jury was instructed under CALCRIM No. 317, that "[t]he testimony that Ira Hayes Jr., has given under oath was read to you because he is not available. You must evaluate this testimony by the same standards that you apply to a witness who testified here in court." (Italics added.) That instruction, in turn, implicated another, more general instruction the jury received under CALCRIM No. 226 concerning witness credibility. The credibility instruction referenced 14 factors the jury "may" consider in evaluating a witness's testimony, along with "anything" else "that reasonably tends to prove or disprove" the truth or accuracy of the testimony. One of the 14 factors was, "What was the witness's behavior while testifying?" Another was, "What was the witness's attitude about the case or about testifying?"
Those factors are: "How well could the witness see, hear, or otherwise perceive the things about which the witness testified? [¶] How well was the witness able to remember and describe what happened? [¶] What was the witness's behavior while testifying? [¶] Did the witness understand the questions and answer them directly? [¶] Was the witness's testimony influenced by a factor such as bias or prejudice, a personal relationship with someone involved in the case, or a personal interest in how the case is decided? [¶] What was the witness's attitude about the case or about testifying? [¶] Did the witness make a statement in the past that is consistent or inconsistent with his or her testimony? [¶] How reasonable is the testimony when you consider all the other evidence in the case? [¶] Did other evidence prove or disprove any fact about which the witness testified? [¶] Did the witness admit to being untruthful? [¶] What is the witness's character for truthfulness? [¶] Has the witness been convicted of a felony? [¶] Has the witness engaged in other conduct that reflects on his or her believability? [¶] Was the witness promised immunity or leniency in exchange for his or her testimony?"
Earlier, the trial court had rejected two modifications defense counsel had requested to these standard instructions. Defense counsel had asked to modify CALCRIM No. 317 so that jurors would be told to "evaluate [Hayes Jr.'s] testimony by the same standards that you apply to a witness who testified here in court, except as otherwise instructed." And he had asked to add an admonition to CALCRIM No. 226, the general instruction on credibility: "In evaluating [Hayes Jr.'s] preliminary examination testimony you will not be able to consider his behavior while testifying because you did not observe it. Also you will not be able to consider his attitude about the case or about testifying because you did not observe his demeanor or hear his voice inflection. Do not substitute the behavior or attitude of the substitute witness for that of Ira Hayes Junior."
Defendant contends the court's refusal to make these modifications violated his rights of confrontation under the Sixth Amendment and under article I, section 15 of the California Constitution. He maintains that the instructions, as given, erroneously elevated transcript testimony to "first-class status," by directing jurors to "treat transcript testimony on an equal footing with live testimony," when in fact it is "second-class evidence," because it is inherently impossible to judge a witness's demeanor and attitude from a cold transcript. Stated simply, he contends the instructions erroneously conveyed that transcript testimony is equal in stature to the testimony of a live witness, when under settled constitutional confrontation clause jurisprudence it is an inferior substitute, "a compromise dictated by the necessity imposed by a witness's unavailability." The danger here, he says, "was not . . . that the jurors could not appreciate that the witness reading the transcript was not Ira Hayes Jr." The danger, rather, was that the jurors "could not appreciate that neither the reader nor they themselves were in no [sic] position to assess Ira Hayes's attitude or demeanor from mere text read to them." Alternatively, he says, "even if the jurors are perceptive enough to realize that the absence of live demeanor represents a significant gap in the assessment of credibility, they are led to believe they must ignore such insight as a matter of law," which rendered the instruction "legally inaccurate."
We disagree. It is unnecessary to decide whether there could be any constitutional implications arising from an instruction of the sort defendant says was given, because CALCRIM Nos. 226 and 317, taken together, do not have the meaning defendant ascribes to them.
There is a serious question as to whether defendant had any confrontation right to assert at all, given the court's pre-trial finding, in effect, that defendant had engaged in witness intimidation. "The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated." (Reynolds v. United States (1878) 98 U.S. 145, 158; see also Davis v. Washington (2006) 547 U.S. 813, 833 ["one who obtains the absence of a witness by wrongdoing forfeits the constitutional right of confrontation"].) This issue was not raised below, however, and neither party addresses it on appeal.
The jury was not, as defendant contends, instructed to "treat transcript testimony on an equal footing with live testimony." Rather, the jury was instructed under CALCRIM No. 317 merely to "evaluate" Hayes's prior testimony "by the same standards that you apply to a witness who testified here in court." It would be obvious to any reasonable juror that not every credibility factor listed in CALCRIM No. 226 will apply to every witness, whether testifying live or not. (See footnote 4, ante.) For example, not every witness will harbor potential bias or prejudice, or have a personal stake in the case's outcome. Not every witness will have a felony conviction. Or have been promised immunity. Not every witness will admit to having been untruthful. Not every witness will have made a prior statement that is either consistent or inconsistent with their testimony. And, as pertinent here, it is not every witness whose demeanor while testifying, or attitude, the jury will be in a position to evaluate. In short, we conclude no reasonable juror would interpret these instructions in such a way as to require them to give equal weight, automatically, to live testimony and transcript testimony.
The instructions also do not, as defendant contends, direct the jury to "ignore" the fact that "the absence of live demeanor represents a significant gap in the assessment of credibility." The jury was instructed that, above all, "You alone must judge the credibility or believability of the witnesses," and to "use your common sense and experience" when "deciding whether testimony is true and accurate." That it is impossible to discern witness demeanor from words on a printed page is common sense. And nothing in the instructions precluded the jury from discounting the weight of Hayes Jr.'s testimony for that reason. Defendant repeatedly asserts that jurors might not realize they cannot judge witness demeanor and attitude from the mere written word, which is why a cautionary instruction to that effect was necessary. But calling it a "common fallacy" for jurors to believe that it is possible to do so, does not make it so. Defendant presumes too low a bar for the reasonable juror. (Cf. People v. Lucas (2014) 60 Cal.4th 153, 293 [rejecting argument that jury would accept out-of-court statements of witnesses who did not testify at face value without assessing their credibility; "no reasonable juror would interpret these instructions so 'as to preclude their applying the relevant portions of [standard pattern jury instruction on witness credibility] to their evaluation of all the evidence, including the out-of-court statements' "].)
While we agree with defendant that it's impossible to judge the demeanor of a witness whose prior testimony is read at trial, we do not agree that it will always be impossible to discern that witness's attitude about the case or about testifying. Sometimes, attitude can be reflected in the content of a witness's testimony, irrespective of visible or audible cues.
Second, even if the average juror were not astute enough to realize that it is more difficult to assess the credibility of a witness who does not testify live than a witness who does appear in court, we would perceive no constitutional violation in the refusal of an instruction on that subject. As defendant points out, one component of the right of confrontation is indeed the right to have a jury observe and evaluate a witness's demeanor. (See Maryland v. Craig (1990) 497 U.S. 836, 845-846; People v. Herrera (2010) 49 Cal.4th 613, 620-621.) But the right of confrontation is not absolute. (Craig, at p. 844; Herrera, at p. 621.) The Sixth Amendment does not bar the introduction of preliminary hearing testimony (or other prior testimony) in a criminal trial when a witness is unavailable. (See, e.g., Ohio v. Roberts (1980) 448 U.S. 56, 58-73, abrogated on other grounds in Crawford v. Washington (2004) 541 U.S. 36, 60-69; Mattox v. United States (1895) 156 U.S. 237; see also California v. Green (1970) 399 U.S. 149, 165-166.) The reason is because witness unavailability is a circumstance in which countervailing demands of " 'public policy and the necessities of the case' " come into play (Mattox, at p. 260; see also Craig, at pp. 848-849), and defendant's prior opportunity for cross-examination satisfies the Framers' intent in guaranteeing the right of confrontation. (See Crawford, at pp. 54-58.)
Given that a defendant has no constitutional right to have a jury observe the demeanor of an unavailable witness whose prior testimony is admitted into evidence, it hardly follows that a defendant has a constitutional right to an instruction concerning the jury's inability to observe that witness's demeanor. Regardless of whether such an instruction might be theoretically helpful or appropriate as a matter of non-constitutional state law, defendant has not persuaded us that either the federal or state confrontation clause requires it. Defendant does not argue that the use at trial of Hayes Jr.'s preliminary hearing testimony itself violated his constitutional rights. Yet, by attacking the constitutionality of these standard jury instructions, defendant in effect mounts a backdoor attack on the use of that prior testimony. None of the cases cited to us in the briefing that upheld the admission of preliminary hearing testimony against a confrontation clause challenge have suggested that such evidence is constitutionally permissible only if juries receive a limiting instruction concerning its supposed inferiority. And while instructional questions were not at issue in those cases, nothing in their reasoning would lead us to that conclusion either.
Accordingly, we conclude the trial court did not err in refusing defendant's requested modifications to the jury instructions.
The Exclusion of Hearsay Evidence Concerning
a Third Party's Potential Guilt
Prior to trial, the defense made an offer of proof that the victim, Custard, told his mother the evening he was killed that his girlfriend's brother, Marquis Thiessen, had threated to kill him. The threat, it was argued, had been precipitated by an altercation earlier in the day, or the day before, between the victim and his girlfriend, Nikita Jones, in which the victim allegedly attacked his girlfriend and broke the windshield of her car. The defense sought to introduce evidence of Thiessen's death threat through the victim's mother, acknowledging her testimony would present "hearsay problems" but arguing evidence of the death threat nonetheless was reliable, and was relevant third party culpability evidence that circumstantially linked Thiessen to the crime. (See People v. Hall (1971) 41 Cal.3d 826, 833 (Hall).) Citing and discussing cases addressing the admissibility of third party culpability evidence, the trial court asked defense counsel if there was anything more to the conversation than that, or any evidence directly or circumstantially linking Thiessen to the crime, and defense counsel responded, "[n]ot at this point." The trial court ruled the evidence was inadmissible, both because it was hearsay and because the offer of proof failed sufficiently to link Thiessen directly or circumstantially to the homicide. The court concluded that its probative value was "very slight" while its admission would present a significant risk of misleading and confusing the jury and of undue consumption of time. The trial court indicated it remained open to revisiting the issue, though, based on any additional information that might come to light.
Defendant now argues this in limine ruling was erroneous, and that testimony by Custard's mother about the alleged death threat was both relevant under the standard announced in Hall, and admissible notwithstanding its hearsay character. Concerning the latter, defendant concedes the victim's out-of-court statement to his mother concerning the threat is inadmissible hearsay, but he argues that "principles of due process required a loosening of the technical rules of hearsay preclusion" under Chambers v. Mississippi, supra, 410 U.S. 286. The reason, he says, is that "otherwise trustworthy evidence relevant to a critical issue at trial cannot be precluded because of its failure to meet the technical foundational requirements of a state hearsay rule."
After the close of evidence, the defense requested leave to reopen evidence to introduce evidence of the death threat. That request was denied too. Defendant does not challenge the latter ruling on appeal, but focuses only on the trial court's pre-trial in limine ruling excluding evidence of the death threat. We note only that there was a further offer of proof at that point that the death threat was made by phone, and concerning some further details about the altercation between Custard and his girlfriend. No further details about the threat itself or Thiessen were provided.
"A trial court's ruling excluding third party culpability evidence is reviewed for abuse of discretion." (People v. Elliott (2012) 53 Cal.4th 535, 581.)
The trial court did not abuse its discretion in excluding this evidence under section 352. The standard for admitting evidence that a third party committed the charged offense was established by our Supreme Court in Hall, supra, 41 Cal.3d 826. Although such evidence "need only be capable of raising a reasonable doubt of defendant's guilt," not "any evidence, however remote, must be admitted." (Id. at p. 833.) The court cautioned that evidence of a third person's "mere motive or opportunity to commit the crime . . . will not suffice to raise a reasonable doubt about a defendant's guilt." (Ibid.) Rather, it held, "there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (Ibid.) In Hall, this standard was held to be satisfied, and thus the trial court had erred in excluding third party guilt evidence, where the defense offer of proof linked the third party to the actual murder: footprints in the victim's bedroom matched the kind of shoes the third party wore, there was evidence the killer was likely left-handed and so was the third party, and the third party knew unique details about the murder. (See id. at pp. 830-831, 833.)
By contrast, in People v. Prince (2007) 40 Cal.4th 1179, 1239-1243 (Prince), our Supreme Court rejected an argument similar to the one defendant makes here: that the trial court abused its discretion in excluding hearsay evidence that a third party (the victim's boyfriend) had furious arguments with the victim and had threatened her with a knife, and that the error unconstitutionally deprived the defendant of a fair trial under Chambers v. Mississippi. The Supreme Court reasoned that even if the evidence had not been excludable as hearsay, the trial court did not abuse its discretion in excluding it because, contrary to Hall, the offer of proof did not directly or circumstantially connect the victim's boyfriend to the actual commission of the murder, but "demonstrated no more than motive," and the trial court also appropriately determined the evidence's slight probative value was outweighed by its potential for delay and confusion of the issues. (See id. at pp 1242 1243.) Nor is Prince an outlier. Nearly one hundred years ago, in an opinion quoted with approval in Hall, our Supreme Court could not have been clearer: "mere evidence of . . . motive coupled with threats . . . is inadmissible unless coupled with other evidence tending to directly connect such other person with the actual commission of the crime charged." (People v. Mendez (1924) 193 Cal. 39, 51, italics added, cited with approval in Hall, supra, 41 Cal.3d at p. 832; see also People v. Perkins (1937) 8 Cal.2d 502, 514 [no error in excluding evidence of death threat made by third party shortly before murder]; People v. Wagner (1937) 21 Cal.App.2d 92, 95.)
After disposing of the issue under state law, Prince then rejected defendant's contention that the exclusion of the third party guilt evidence nonetheless violated his federal constitutional rights. It reasoned, without the need for elaboration, that " '[t]here was no error under state law,' " the court observed, " 'and we have long observed that, "[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's [state or federal constitutional] right to present a defense." ' " (Prince, supra, 40 Cal.4th at p. 1243; see also People v. Bradford (1997) 15 Cal.4th 1229, 1325 [exclusion of third party culpability evidence did not violate due process or deprive defendant of the opportunity to present a defense].)
Judged by these standards, there was no abuse of discretion. Defendant asks rhetorically, in his reply brief, "Does respondent seriously maintain that a death threat, issued the day before Anthony Custard was killed . . . and which threat was in fact motivated proportionately by a violent assault on the threatener's sister, was irrelevant evidence?" But under Prince and the other authorities we have just discussed, the answer is that the probative value of such evidence, without more, is limited. The trial court did not abuse its discretion in concluding that the probative value was outweighed by other factors. Defendant cites no contrary authority.
In his reply brief, defendant cites out-of-state authority in which a trial court admitted evidence of a third party's death threat against the victim. (See State of Arizona v. Machado (Ariz. 2012) 246 P.3d 632, 633.) Its admissibility was not at issue, however, and in any event we are bound by decisions of our highest court interpreting and applying the law of California law, not decisions interpreting the law of Arizona.
Ignoring Prince, and instead citing Holmes v. South Carolina (2006) 547 U.S. 319, 327, defendant also argues that the preclusion of relevant third party-culpability evidence violates his federal constitutional right to present a defense, but Holmes suggests the opposite. It implies that Hall's rule regarding third party-culpability evidence is constitutional. (See Holmes, at pp. 326-327 & 327, fn. * [citing, inter alia, Hall as example of "widely accepted" rules regulating the admission of third party culpability evidence].) That is because "the Constitution permits judges 'to exclude evidence that is "repetitive . . . , only marginally relevant" or poses an undue risk of "harassment, prejudice, [or] confusion of the issues." ' " (Id. at p. 327.) Defendant's bid to convert this issue into an error of federal constitutional dimension is thus defied by decisions of both our state's highest court and the United States Supreme Court.
Finally, even if the court had erred in excluding this evidence and federal constitutional harmless error review under Chapman v. California (1967) 386 U.S. 18 were required, the claimed error was harmless beyond a reasonable doubt. Even defendant (forthrightly) acknowledges the prosecution's case was "strong." First, two eyewitnesses implicated defendant in the shooting. The principal one was Ira Hayes Jr., who had no motive to lie, and there was no evidence he had been pressured by police into falsely implicating the defendant. And Hayes Jr. not only described seeing defendant commit the killing, he also testified about two conversations reflecting defendant's consciousness of guilt. According to Hayes Jr., defendant called him a couple of days after the shooting and told him to "forget about what happened," and urged him to offer a story if anyone asked. And the story bore a striking resemblance to defendant's account at trial: that a gray car pulled up as he and the victim were walking down the street, and someone opened fire on the victim. Hayes Jr. also testified that defendant called him a second times a few weeks later and purported to assure him that information he had been hearing wasn't true, and that defendant "wasn't going to do nothing to me in the first place and stuff like that." Defendant told Hayes, Jr., "I know your dad and I know your family, so you ain't got nothing to worry about. Just keep your mouth closed."
The other eyewitness, bystander Shelton Curtis who witnessed the shooting through the rearview mirror of his car, described a single shooter approach the victim on foot, open fire, and run (not drive) away. Curtis saw no car full of youngsters parked in the middle of the street. And he recalled seeing someone else standing near the gate of Scott's house when the shooting took place, consistent with the prosecution's theory (and Scott's statement to police) that Scott witnessed the killing too.
Second, the forensic evidence was consistent with the prosecution's theory, not the defendant's theory, in at least two ways. Only ten shell casings were found at the scene, all from the same gun, which is inconsistent with defendant's testimony that there was another shot—one fired first by the victim. In addition, defendant concedes in his brief that "the evidence established that whoever shot Anthony Custard, shot him once in the head from close range while he was standing, and nine times in the torso as he lay prone on the ground." (Italics added.) Yet, defendant testified the shooter never got closer than five feet to the victim.
Third, in the three hours of recorded jail calls, which defendant grudgingly concedes "perhaps added to the weight of the prosecution case," defendant repeatedly appears to be discussing efforts to intimidate witnesses and hide and/or destroy evidence, which reflects his consciousness of guilt. Many of these calls were recorded years before trial, within months of defendant's arrest. Others were recorded four years later, as the prospect of an actual trial loomed and a trial date was set and the tone of his calls became more frantic ("[T]ell him, 'I'm the man . . . it's the 8th inning.' Tell him 'it's the bottom of the 8th.' . . . [¶] And I need my family—I need my family cause, the rest these niggas are suckers"). Defendant's explanations for the calls were highly implausible—such as the claim he was merely trying to conceal a laptop from his ex-girlfriend because it contained messages relating to other women, and the claim he was trying to communicate with Hayes Jr. and Scott merely to help them secure proper legal representation.
For example (and these are the tip of an extremely large iceberg): just days after defendant's arrest, an acquaintance told him "[t]he mother fuckers they be interrogating. But they—they be missing shit too though." (Italics added.) Defendant told someone else that day he wasn't going to "snitch on myself" to police and that "I'm gonna come up out of this. [¶] . . . [¶] . . . . if, you know, if I send the word you know what I'm saying." (Italics added.)
The following day, defendant asked whether his brother "still got that yada da yada." When his brother said yes, defendant became agitated ("What the fuck I thought you gave it to um, Ol' Boy?), and his brother explained, in code (referring to the "Yankees"), he'd been unable to do so because the police had been surveilling him. Defendant insisted, "you gotta call dude so dude can get that, you know what I'm talking about?"
A few days later, still awaiting receipt of the prosecution's discovery materials, defendant learned from his lawyer that Ira Hayes Jr. had implicated him, just as police had been telling him. Defendant told a friend that day that discovery was "the only thing I gotta wait on," and his friend told him "just call me and let me know what I gotta do man. Just call me." In another call the same day, defendant discussed an "order" he would give once he received the prosecution's discovery. His cousin told him, "[P]lace that order, that's all you got to do," and defendant said that once he received the prosecution's discovery, "that's when the order will come in." Defendant testified that his cousin owed him some money, but couldn't explain his cousin's comment about "plac[ing] the order," testifying that "[h]e's talking nonsense." He also couldn't recall what he himself meant when he said "that's when the order will come in," but testified "[o]bviously it has to do with money."
Defendant spoke with his brother that day too (in a threeway call with their sister also on the line), and asked whether his brother had "relieved [himself]" of an item they did not identify. When told no, defendant became angry: ("[D]o that man, what the fuck do you mean? [Caller A2]: No, I haven't yet. I'm about to be (unintelligible), so, uh, I mean (Black)—(Black Cuzz) gone have to do it. [¶] [Defendant]: No do—no what the fuck you mean? What the fuck you mean?"). One of the callers assured defendant "I'll make sure that happen," and defendant insisted they "call dude tonight—man, right now and see what's up, can he come grab that," and reminded them too, "Make sure you—that little—that one little piece and stuff." Defendant testified the conversation was about his laptop computer which needed a broken part fixed. He acknowledged being upset on the call, and testified it was because his brother was procrastinating and "I'm a punctual person."
Three days later, defendant assured a cousin, "the motherfucker that got me up in here—you know what I'm saying, my folks is gone take care of that." (Italics added.)
And the calls went on, and on. For example, October 13, 2007: "[Defendant]: . . . if my nigga go, do, um, like I'd asked him to, man this should be, uh, it wo—it should turn out being Versace." (Italics added.) October 16, 2007: "[Brother]: . . . You don't worry about it. Everything gone be okay. Everything going to be taken care of." (Italics added.) October 16, 2007: "[Defendant]: Have you seen Baby? [¶] . . . [¶] Cuz I really need you to get on dude's head. . . . [¶] . . . [¶] get at that dude." (Italics added.) November 23, 2007: "[Defendant]: hey when you was telling me about that other, what—was it good or bad? [¶] [Call participant]: Uh, I think it would be good because they're uh, uh, he talked to his brother . . . and he hella scared." (Italics added.)
For example, in one call, a friend told him Little Baller Bound (i.e., Hayes Jr.) was "still floatin' around," but assured defendant "[t]hat little nigga ain't nothin' but a phone call away," and defendant asked "Can you take the reins?" The friend asked, "[w]hat you need me to do?," and assured defendant, who was "about to go ... ballistic" and "about to lose it," that "[a]ll you have to do is tell me what you need done, blood. There ain't no two ways to it. You tell me, or let little bra know exactly." In another call, after mentioning that "my thing is set" for October, he told the caller two other people were planning to "hook up" with the caller in order to "collaborate."
Fourth, neither Hayes Jr. nor Scott, the only two eyewitnesses who identified defendant to police, were willing to so testify by the time of trial four years later. Scott, as we have said, recanted. And Hayes Jr. was nowhere to be found. An investigator for the prosecution, police officer Jeff Wood, testified about his efforts to locate Hayes Jr. before trial in order to serve him with a trial subpoena, without success.
Fifth, one of defendant's own witnesses, neighborhood resident Kassandra Riley, testified to an incriminating conversation defendant had with her shortly after the killing which also reflected his consciousness of guilt. According to Riley, defendant approached her in the parking lot of a Walmart store a few days after the shooting, told her the police suspected he was the shooter and asked whether she had seen him out on the street that night, and she told him she hadn't. (Riley had gone outside onto the street that night minutes after the shooting, having been awakened by the sound of gunshots.) Defendant claimed the Walmart encounter took place a month later, but denied the substance of the conversation.
Sixth, apart from Scott, defendant could not locate a single eyewitness to corroborate his version of events. Not a "lady friend" who allegedly dropped him off in the neighborhood that night before the shooting ("Jasmine"), whose last name and precise whereabouts he did not know. Not "Top," one of the other people he claimed was present at the scene but whom defense investigators could not locate. Not "Woe" on the bike, or Smaller Bound, both of whom defendant claimed were neighbors of his, and whom he also claimed to have asked his lawyers to locate. He even claimed to have a mutual friend in common with one of the people in the shooter's car, but that mutual (unidentified) friend, he claimed, was dead.
Seventh, after he was arrested, defendant never once asked his lawyers to contact Scott—whom defendant knew well—even though defendant claimed to be trying to put his lawyers in touch with other eyewitnesses in this period, and even though Scott, according to Scott's own revised account at trial, had seen the mystery car pull up with the killer inside. Defendant claimed this was because he didn't trust Scott, who was "scared of his own shadow," and it would be a waste of time because defendant didn't know what Scott had seen, and thought he'd gone back into the house by the time of the killing. Yet, defendant also admitted calling Scott himself from jail years later, in September 2011, a month before Scott recanted his police statement to defense investigators.
Eighth, defendant's version of events was itself highly implausible. He testified that both passengers in the car drew their weapons as they got out of the car, but only one of them ran up and shot Custard. While not inconceivable, it's highly dubious that, after Custard supposedly fired at them, only one of the two with weapons drawn would return fire. And that he would do so running straight toward the person that had just shot at him.
And finally, the notion that Scott had been pressured by police into falsely implicating defendant and then, four years later, finally told the truth about what really happened was more than suspect. No doubt, police kept him in an interview room at the station for a long time the day he told them what he saw (11 hours), and he wasn't told he was free to leave. But he was initially reluctant even to acknowledge he knew anything about the shooting, completely denying any involvement. The jailhouse calls make clear that defendant was desperate to get in touch with Scott. This was a witness whom, from the outset, defendant said "the whole world" expected to "fold" and whom defendant later called "100 percent rat ass." Defendant concedes (at page 9 of his reply brief) Scott's credibility was "inherently suspect." And Scott claimed to have waited four years to come forward with the truth about his lifelong family friend because it was only then he realized defendant "was indeed being charged for murder" and was "facing some significant time for this," begging the question why he didn't speak up much sooner to try to help defendant who sat languishing in jail.
Accordingly, principally for these reasons, any error in declining to allow Custard's mother to testify that Custard said Theissen had threatened to kill him, was harmless beyond a reasonable doubt.
Admission of Evidence of Defendant's Prior Assault of David Manuel
Finally, we turn to defendant's argument that the trial court improperly admitted evidence of a prior assault he had committed, on an individual named David Manuel. The incident took place seven and a half years before Custard's homicide, when defendant was provoked by Manual who taunted him about the recent murder of one of his friends and punched him, and he then beat Manual so badly that Manual ended up in a coma, paralyzed on one side. Defendant eventually admitted to having inflicted great bodily injury on Manuel, and suffered a felony conviction. But not before falsely denying responsibility and blaming others for his crime: initially, defendant acknowledged to police he and Manual had got into a scuffle and that he had hit Manual several times, but he claimed the scuffle had ended and then other youths he could not specifically identify had arrived and were the ones who had viciously beat Manuel as Manuel lay helpless on the ground. Video surveillance footage, though, showed it was defendant.
Details of the Manuel assault came in through the prosecution's cross-examination of defendant, after the trial court initially, in a pre-trial ruling, had ruled the assault inadmissible. The trial court cited multiple grounds for admitting this evidence, including that defendant had given a similar explanation for the prior incident that turned out not to be true (i.e., blaming others whom defendant could not identify), making the evidence relevant and admissible under the "pat excuse" doctrine to prove defendant's explanation in the present case was fabricated (see People v. Moody (1976) 59 Cal.App.3d 357, 361; People v. Ricketts (1970) 7 Cal.App.3d 441, 445-446 (Ricketts)). Defendant now contends the trial court was wrong on every basis it gave for admitting this evidence. But we address only the pat excuse doctrine, for the trial court did not abuse its discretion in admitting evidence of the assault on that basis.
Evidence Code section 1101 prohibits the use of character evidence, such as criminal misconduct, to prove conduct on a specific occasion, but does not prohibit the use of criminal misconduct "to prove a relevant fact other than defendant's criminal disposition." (People v. Ewoldt (1994) 7 Cal.4th 380, 386, 404; see Evid. Code, § 1101.) Thus, when evidence of another crime is offered to show that the defendant's testimony is implausible or untruthful, section 1101 does not bar its admission. (See People v. Millwee (1998) 18 Cal.4th 96, 130-131 (Millwee); Evid. Code, § 1101, subd. (c) ["Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness"].) In particular, when the defendant has offered a similar innocent explanation for another crime, the trial court has discretion to admit evidence of the other crime as proof that the defendant's present explanation is fabricated too. That is the thrust of the "pat excuse" doctrine relied on by the trial court here. (See Ricketts, supra, 7 Cal.App.3d at pp. 445-446; People v. Moody, supra, 59 Cal.App.3d at p. 361; People v. Wilson (1991) 227 Cal.App.3d 1210, 1217; accord, Millwee, supra, 18 Cal.4th at p. 131.) In this case, evidence concerning the Manuel assault "tend[ed] to establish that the defense testimony about [exonerating circumstances] was fabricated." (Ricketts, at pp. 445-446.) Simply put, his excuse for that prior incident was sufficiently similar to his defense here such that details of the episode were relevant, probative and admissible to attack his credibility.
We are not persuaded by defendant's arguments to the contrary. In his opening brief, defendant maintains this theory of admissibility "is simply not an independent category of [Evidence Code section] 1101[subdivision] (b) admissibility," but instead is simply an element of the common design or plan theory of admissibility under Evidence Code section 1101, subdivision (b). This misstates the law. The Supreme Court has expressly held the to the contrary. (See Millwee, supra, 18 Cal.4th at pp.130-131.) Nor, as defendant asserts in his reply brief, are these authorities limited to situations in which the charged and uncharged crimes are the same. (See, e.g., Millwee, at p. 131 [murder and non-fatal shooting]; Ricketts, supra, 7 Cal.App.3d at pp. 445-446 [receiving stolen property and vehicle theft].)
In his reply brief, defendant also argues that the exculpatory explanations must be "identical in specific ways." Nothing in the case law contains such a limitation, however, or suggests the trial court's discretion in this area is limited by razor-sharp precision. At any rate, defendant's explanation of what happened in this case is strikingly similar to his account in the prior one: both incidents involved, as defendant acknowledges, "spontaneous explosions of violence," the level of violence both times was extreme, and both times defendant was concededly present yet blamed others he could not identify who suddenly arrived on the scene and perpetrated the violence he was accused of committing. It is undeniable that he lied regarding the previous assault, and the trial court did not abuse its discretion in allowing the jury to hear evidence of that prior episode to decide if he was lying this time too.
Because evidence of the Manuel assault was relevant and admissible, that leaves only the question whether the trial court abused its discretion in refusing defendant's request to exclude it under Evidence Code section 352 as unduly prejudicial, and we have little trouble concluding it did not. Defendant asserts, in general terms, that this is really "the only question." However, defendant has not argued, much less demonstrated, that no reasonable judge could conclude the probative value of this evidence outweighed its potential for prejudice. And the Supreme Court in Millwee rejected such a claim in similar circumstances. (See Millwee, supra, 18 Cal.4th at p. 131 [evidence of uncharged offense "was highly probative on the limited credibility issue for which it was offered, . . . [the] defendant's credibility was a crucial issue at trial, and . . . the potential for undue prejudice was slight," because limited evidence was introduced about it, the uncharged offense was less inflammatory than the charged homicide because it was nonfatal, and jury was instructed it had no bearing on defendant's character].) For these reasons, defendant has not persuaded us that the court's discretion was abused under Evidence Code section 352.
We question whether defendant preserved this issue for review because, although he objected to this evidence under Evidence Code section 352 during pre-trial proceedings, and then the court initially declined to admit the evidence, he did not renew an objection under Evidence Code section 352 when the matter was revisited in the midst of trial and the People asked, again, to be permitted to explore the incident. The People have not asked us to deem the issue forfeited, however, and so we will briefly address it.
Finally, any error in allowing this evidence was harmless. The jury was instructed not to conclude from evidence of the Manuel assault "that the defendant has a bad character or is disposed to commit crime." Furthermore, the jury knew defendant was violently ill-tempered. He admitted to a previous felony conviction for illegally possessing a firearm. He admitted beating up a fellow inmate in jail ("a young street punk"). His recorded jail calls were laced with violent rants (e.g., " 'I'm ready to crack one of these nigga's faces so bad, blood' "; "I'm going to punch buddy in his mother-fucking stomach, man, with this square ass"; "I'll beat the brakes off this nigga. Beat the black off his ass"). And he admitted that, had he encountered his friend's murderer on the streets, he willingly would have killed the assailant with his bare hands. So, to the extent evidence of the Manuel assault should have been excluded as bearing on his propensity for violence, the evidence was cumulative. There wasn't anything about the Manuel incident, apart from defendant's having been charged and convicted, that was significantly more inflammatory than what this jury could deduce from a considerable body of other evidence.
Defendant asserts in his opening brief that the error here was of federal constitutional dimension and therefore subject to harmless error review under Chapman v. California, supra, 386 U.S. 18. None of the authorities he cites on this point at pages 42-43 of his opening brief support that contention, however. And although in his reply brief, defendant chides the People for purportedly failing to address this point, defendant has it backwards. He does not address People v. Malone (1988) 47 Cal.3d 1, cited at page 123 of the People's brief, in which our Supreme Court rejected the proposition that the erroneous admission of other crimes evidence violates due process, holding such errors are subject to the state harmless error standard of People v. Watson (1956) 46 Cal.2d 818. (Malone, at p. 22.) --------
The judgment is affirmed.
STEWART, J. We concur. /s/_________
KLINE, P.J. /s/_________