People v. Wallace CA2/2 ( 2014 )

Filed 1/8/14 P. v. Wallace CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B243535
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. YA075709)
v.
DENNIS WALLACE et al.,
Defendants and Appellants.
APPEALS from judgments of the Superior Court of Los Angeles County.
James R. Brandlin, Judge. Affirmed as modified.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant Dennis Wallace.
John G. Steinberg, under appointment by the Court of Appeal, for Defendant and
Appellant Raymond Gibbs.
Joshua C. Needle, under appointment by the Court of Appeal, for Defendant and
Appellant Deeya Khalill.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and
Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
__________________
In an amended information filed by the Los Angeles District Attorney, appellants
Dennis Wallace (Wallace), Raymond Gibbs (Gibbs), and Deeya Khalill (Khalill) were
charged in count one with the murder of Adiel Quezada (Quezada; Pen. Code, § 187,
subd. (a)).1 In count two, Wallace and Khalill were charged with the murder of Tyronn
Bickham (Bickham, § 187, subd. (a)). As to both counts, it was further alleged that a
principal personally and intentionally discharged a firearm proximately causing the
deaths. (§ 12022.53, subds. (d) & (e)(1).) A special circumstance of multiple murder
was also alleged. (§ 190.2, subd. (a)(3).) In count three, Wallace and Khalill were
charged with the attempted murder of Emond Taylor (Taylor; §§ 187, subd. (a), 664.)
Pursuant to section 664, it was further alleged that the attempted murder was committed
willfully, deliberately, and with premeditation. As to count three, it was also alleged that
a principal was armed with a firearm. (§ 12022, subd. (a)(1).) And, pursuant to section
186.22, subdivision (b)(1)(C), it was alleged that the charged offenses were committed
for the benefit of, at the direction of, and in association with a criminal street gang.
Appellants pled not guilty and denied the allegations. A jury convicted appellants
of the charged offenses, found the murders in counts one and two to be first degree
murders, and found the allegations to be true.
The trial court sentenced Wallace and Khalill to life in prison without the
possibility of parole for counts one and two, plus two terms of 25 years to life for the
section 12022.53 allegations. The 10-year sentences for the section 186.22 allegations as
to counts one and two were stayed. For count three, Wallace was sentenced to state
prison for life, plus 11 years (one year for the section 12022 allegations and 10 years for
the section 186.22 allegation).
Gibbs was sentenced to 50 years to life for count one, consisting of 25 years to life
for the murder and 25 years to life for the section 12022.53 allegation.
Appellants timely appealed.
1 All further statutory references are to the Penal Code unless otherwise indicated.
2
We agree that the trial court improperly imposed a 10-year gang enhancement on
count three against Wallace and Khalill. As such, the 10-year sentence on count three is
stricken and replaced with a 15-year minimum parole eligibility term. (§ 186.22, subd.
(b)(5).) It follows that Gibbs is entitled to the 15-year minimum term for his sentence on
count one. We also agree that all of the appellants are jointly and severally liable for
victim restitution on count one and that Khalill and Wallace are jointly and severally
liable for victim restitution in count two. Thus, the abstracts of judgment must also be
modified to so reflect. In all other respects, the judgments are affirmed.
FACTUAL BACKGROUND
I. Prosecution Evidence
A. Evidence Related to Counts Two and Three (the Attempted Murder of Taylor
and the Murder of Bickham)
On August 10, 2001, at approximately 10:30 p.m., Taylor was living in a duplex
on San Pedro Street, which was frequented by the 135 Piru gang. Taylor was at home
with his brother and his friend, Bickham.
Taylor had seen Khalill and Wallace in the neighborhood during the five years he
had lived there. On several occasions, Wallace had asked Taylor where he was from, and
Taylor responded that he did not “gangbang” and was “from nowhere.” Taylor and
Bickham were not gang members, and Taylor did not associate with a gang.
At some point, Taylor and Bickham went outside to the front yard and walked
towards Bickham’s brown Caprice. A female joined them. As Taylor, Bickham, and the
woman stood near the trunk of the car, Taylor saw a white Nissan Altima that he had seen
“all the time.” The Altima was coming from Piru Street and slowed down as it passed
Taylor and Bickham.
3
Taylor saw four people in the car. Taylor could not clearly see the two people in
the back of the car, but he could see the two people sitting in the front seat: Wallace was
the driver and Khalill, known as “K-9,” was in the passenger seat.2
As the Altima drove by, Taylor heard someone in the car say, “‘They get a pass’”
or “‘Hey, you straight.’” The car drove past Taylor and his friends and continued down
the street.
Several minutes later, after the female had departed, Taylor saw the Altima again.
The Altima went across San Pedro Street and stopped near an alley. Taylor could see
that Wallace and Khalill were still in the front seat of the car.
A person wearing a black hoodie got out of the back seat and walked to the corner.
The person began shooting. Taylor ran towards his house, and Bickham ran in another
direction. Taylor jumped over his fence, ran into the back, and entered his house. Taylor
told his brother that someone was shooting at him.
A short time later, Taylor heard a knock on the door. When Taylor opened the
door, he saw Bickham, who had been hit by gunshots. Bickham fell to the ground.
Taylor called 9-1-1.
Bickham later died from his gunshot wounds.
Los Angeles County Sheriff’s Deputy Richard White responded to the area. At
the time, Bickham was being treated by paramedics. Deputy White attempted to speak to
Bickham, but he was unable to do so.
Deputy White surveyed the area and observed bullet strikes to a nearby white
Caprice and a fence. He also found 18 expended shell casings that were “spread out a
little bit” in a yard. The recovered casings were from “7.62 by 39-millimeter” rounds and
were all fired from the same weapon.
2 Taylor initially testified that Khalill was the driver and Wallace was the passenger,
but then he realized that he had erred. Taylor also testified that Wallace was associated
with the 135 Piru gang and that he had seen Wallace driving the Altima on prior
occasions. Taylor sometimes saw Khalill in the car with Wallace. Taylor never saw
Wallace’s mother driving the Altima.
4
Deputy White questioned Taylor, who was distraught and said that he had seen
four African-American males in a car and then he saw the shooter, who was also an
African-American male. Taylor said that he turned and ran.
When Taylor spoke with the police, he did not tell them that he saw Wallace’s
Altima or that he had seen Wallace driving the Altima. Taylor did not mention the
identities of the suspects because he still lived in the neighborhood and feared that they
might return and kill him.
The following day, Wallace and Khalill, along with two others, went to Taylor’s
house in a white Caprice. Wallace asked Taylor what had happened the previous day.
Taylor said that he did not know what had happened. The men suggested that perhaps
“the Mexicans” had been involved in the shooting. Taylor was uncomfortable because he
knew who had committed the shooting.
Taylor moved from the area after the shooting. He believed that “snitches” who
talked to the police got “beat up or killed.”
On August 13, 2001, Detective Frank Salerno interviewed Taylor over the
telephone. At that time, Taylor indicated that someone named “Dennis” was the person
who drove the Altima. Taylor had not seen anyone else drive that car.
On August 14, 2001, Detective Salerno again interviewed Taylor, who said that he
had seen the Altima on prior occasions. Taylor stated that he saw the Altima a second
time when it crossed San Pedro Street. The shooter exited the backseat of the car.
Taylor further relayed to Detective Salerno what had occurred on the day after the
shooting.
At some point later, Taylor mentioned to Detective Salerno that the other person in
the car was “K-9.” Taylor said that Wallace and Khalill were members of “1 Tray 5,”
which meant that they were members of the 135 Piru gang. Taylor said that Wallace was
the driver and that Khalill had been the passenger in the front seat. Detective Salerno
checked “department resources” and uncovered one person in the 135 Piru gang named
Dennis and someone else in the gang, Khalill, with the nickname of K-9.
5
Based on the information that he was given, Detective Salerno attempted to
ascertain whether Khalill drove a white Caprice. He found that there was a release of
liability in Khalill’s name on that type of car. He then found the Caprice in an impound
tow yard. Detective Salerno searched the vehicle and recovered a dark Nike hooded
jacket from the trunk.
Detective Salerno also investigated whether Wallace had any connection to a
white Nissan. He discovered that a white Nissan was registered to Wallace’s mother.
Detective Salerno located photographs of Wallace and Khalill and placed them
into photographic lineups. He then showed them to Taylor. In one photographic lineup,
Taylor identified Wallace as the owner of the Nissan Altima and one of the people he had
seen on the night of the shooting.
In another photographic lineup, Taylor identified Khalill as the passenger in the
Altima. Taylor was “[c]ertain” of his identifications.
On September 5, 2001, Detective Salerno and his partner, Detective Robinson,
notified Wallace and Khalill that they were under investigation for the murder of
Bickham. On that date, the sheriff’s department conducted a search of Wallace’s
residence, which was approximately four blocks south of where the shooting had
occurred. At that time, Khalill was also in the residence. In a bedroom closet, deputies
recovered a magazine for an AK-47 that was loaded with “7.62 by 39-millimeter” rounds.
A fingerprint analysis was conducted on the magazine and rounds, but no fingerprints
were recovered. A white Nissan Altima was located at the residence and impounded.
The murder went unsolved until 2010.
At the preliminary hearing in July 2010, Taylor identified Wallace and Khalill as
being in the front seat of the Altima. Taylor again was “[c]ertain” of his identifications.
6
B. Evidence Related to Count One (Murder of Quezada)
1. Quezada is shot to death
On July 25, 2008, Steven Buchanan3 (Buchanan) lived near the area of 139th
Street and Avalon Boulevard in the City of Los Angeles. Khalill, whom Buchanan knew
as K-9, lived nearby.
At approximately 8:30 p.m., Buchanan heard something that sounded like
gunshots. He went outside and got into a vehicle with his friend.
Three to five minutes later, Buchanan saw a male clad in a hoodie running past the
car as if “he had done something.” The male ran across the street and stood on the
sidewalk. The man eventually got into a black Chevy Tahoe that was driving by, and the
Chevy then drove away.
Los Angeles County Sheriff’s Deputy Jerry Montenegro went to Avalon
Boulevard in response to a 9-1-1 call. Deputy Montenegro saw a male Hispanic,
Quezada, bleeding from apparent gunshot wounds to his body. Paramedics
unsuccessfully tried to resuscitate Quezada, who was pronounced dead at the scene.
Deputy Montenegro saw 12 nine-millimeter and five .40-caliber shell casings
“spread about the scene” near Quezada. He also found five expended bullets.
The casings were examined, and it was determined that the 12 nine-millimeter
casings were all fired from the same firearm. The .40-caliber casings were all fired from
another firearm.
Quezada died from multiple gunshot wounds. He had 13 gunshot wounds that
resulted in 22 holes in his body. Out of the 13 gunshot wounds, three of them were fatal.
The nature of the bullet wounds was consistent with the shooter or shooters standing over
the victim while firing the shots.
3 At the time of trial, Buchanan was serving a sentence for criminal threats. In
1996, he had suffered a conviction for petty theft with a prior. Buchanan’s family still
lived in the area and he did not want to testify. During trial, Los Angeles County
Sheriff‘s Deputy Richard Hartley saw Buchanan in the “general population male Black
tank” at the courthouse; Buchanan and appellants were seated on the same bench and
were having lunch.
7
Eight projectiles were recovered from Quezada’s body. Four of the projectiles
were nine-millimeter and could have been fired from the same weapon, such as a Glock.
The remaining four projectiles were all .40-caliber Smith and Wesson ammunition that
was fired from the same firearm. Israeli Military Industries manufactured a firearm, the
Desert Eagle or Baby Eagle, with the same general rifling characteristics found on the
.40-caliber projectiles.
Quezada belonged to the South Side Players gang and used the moniker Stomper.
The place where Quezada lived and was killed was claimed by the Barrio 13 gang.
Detective Michael Valento responded to the area where Quezada was killed and
noticed gang graffiti, including graffiti by the South Side Players and the B-13 gang, on
the walls of an alley behind the apartment complex where Quezada was killed. There
was no graffiti by the 135 Piru gang.
2. Information from Samuel Feissa (Feissa)
Feissa was a former member of the 135 Piru gang.4 Appellants were also
members of the 135 Piru gang. Wallace had the moniker “Poke”; Khalill had the
moniker “K-9”; Gibbs had the moniker “Peanut.”
Feissa lived “[f]airly close” to where Quezada was killed and could get there by
car in approximately five to seven minutes.
Feissa had been to Khalill’s house and had seen several guns, including a nine-
millimeter handgun, a “Desert Eagle 40,” and a nine-millimeter with an “extended clip.”
Feissa worked as an informant for Sheriff Detective Sean Shaw, who gave Feissa
“a couple of thousand” in “[i]ncrements.” Detective Shaw also gave Feissa a Toyota
Tercel to drive. Feissa received other benefits for being an informant, such as having one
case that “disappear[ed]” and being released when he was pulled over by sheriff’s
deputies.
4 Feissa was deemed unavailable and his preliminary hearing testimony was read at
the trial. He had a prior conviction for felony possession of marijuana and was on
probation at the time of the preliminary hearing.
8
On July 28, 2008, Feissa was arrested for possessing a firearm. At that time, he
told Detective Shaw about a murder that took place on July 25, 2008, on Avalon
Boulevard.5 In August 2008, Detective Shaw told Detective Valento that Feissa had
information about Quezada’s murder.
On August 7, 2008, Detective Valento interviewed Feissa. He investigated
Feissa’s case and determined that the gun that Feissa possessed was not the weapon that
had been used to kill Quezada. Feissa was not prosecuted in the firearm case. Feissa was
paid for the information he provided in appellants’ case.
Although generic information about Quezada’s murder had been publicized, the
police had not released information that two guns were used to kill Quezada, that one of
the weapons was a nine-millimeter, that the other weapon was a .40-caliber, that an
eyewitness had seen a Chevy Tahoe leaving the area shortly after the shooting, or that
Quezada was a South Side Player gang member.
Feissa said that he had previously met Quezada, who stated that he was from the
South Side Players. He had warned Quezada that people might think that he belonged to
the Barrio 13 gang.
Feissa was not present when Quezada was shot, but had heard about the crime
during several conversations. On one occasion, Feissa had been at Khalill’s house.6 In
addition to Khalill, Gibbs and others were there. Feissa asked Khalill about what had
happened and told Khalill that the victim did not belong to a rival gang. Khalill
responded, “‘Kick Mexicans.’”
5 Feissa also had information on the murder of Juan Llanos (Llanos) a “shot-caller
member” of the Barrio 13 gang, committed by Marcellous Prothro (Prothro) and Shawn
Simpson (Simpson). Prior to Feissa’s information, the murder of Llanos was unsolved.
Feissa received $7,250 for the information he gave in the Llanos murder and Quezada’s
murder; Feissa did not receive a reward that was put up by Llanos’s family. Prothro was
arrested on July 31, 2009, in the Llanos murder.
6 Prior to arriving, Feissa had smoked a “[c]ouple of blunts” of marijuana.
9
At some point during the event, Feissa had a conversation with Gibbs. Feissa
mentioned that the victim was not a rival gang member. Gibbs replied, “‘Fuck
Sarrios.’”7
During a telephone conversation, Khalill told Feissa that “they caught a Sarrio
slipping.” According to Feissa, Khalill said that he and Wallace had seen a rival gang
member. They drove to Khalill’s house on 139th Street. They retrieved “burners”
(guns). They walked down the street and returned to Quezada, asked him where he was
from, and then Khalill and Gibbs “dumped him out,” meaning they shot Quezada.
Appellants ran back to 139th Street. Wallace got into a dark blue Chevy Tahoe and left.
Approximately two or three months after the murder, Feissa had another
conversation with Gibbs while they were attending a “function.” Gibbs said that he and
Khalill had walked over to Quezada, that Khalill had asked Quezada where he was from,
and that Khalill and Gibbs had shot him while Wallace waited across the street as a
“lookout and cover.” Gibbs told Feissa that a “nine and 40” were used in the murder.8
Gibbs then ran back to Khalill’s house.
Gibbs said that Jerrod Taylor (Jerrod), known as “Baby Spoke,” was supposed to
do the murder and that he “bitched out” and became “[s]cared to put in work.” Jerrod
then joined the conversation. He said that “he had trucked it” (run fast), that “the
homeys” had given him the guns (a “nine and 40”), and “that he had to hit the wall and
. . . go [to] his house and put the guns up.” Feissa told Jerrod that he was “fucked up for
beating up Drip,” Jerrod’s neighbor, who had placed the guns in a trash can.
After obtaining information from Feissa, Detective Valento attempted to
corroborate that information. He believed that the case was a “prime candidate for
wiretap.”
7 According to Feissa, “Sarrio” is a derogatory name for a member of the rival
Barrio 13 gang.
8 Feissa later testified that he did not know what type of weapons were used in the
murder.
10
On November 29, 2008, Detective John Duncan showed photographs of Wallace’s
Chevy Tahoe to Buchanan. Buchanan said that the vehicle depicted in the photographs
looked similar to the one he saw on the night of Quezada’s murder, but thought that the
vehicle was darker.
C. Wiretaps of Appellants
Detective Duncan participated in a wiretap investigation involving the 135 Piru
gang. The 135 Piru gang was targeted because it was suspected in some murders and
shootings. As part of the wiretap investigation, appellants’ telephone calls were
monitored and recorded. Detective Duncan knew appellants and was familiar with their
voices.
Also as part of the wiretap investigation, the police sometimes engaged in
“stimulation tactics,” such as serving search warrants or placing something in the media.
All of these tactics were designed to “stimulate” gang members to converse with each
other on the telephone.
Detective Duncan listened to a number of calls that were recorded pursuant to the
wiretaps of 135 Piru gang members. In those calls, appellants never said anything to
indicate that they were shocked that they were being charged with the murder; nor did
they say that Feissa had murdered Quezada.
1. Recorded telephone call between Khalill and Krystal Woolard
(Woolard) on October 9, 2008
On October 9, 2008, Woolard was incarcerated in jail for prostitution. During a
recorded telephone call, Khalill said that he was “killing” people “out here.”
2. Telephone call between Gibbs and an unidentified female on
February 17, 2009
During the recorded telephone call, Gibbs and an unidentified female discussed
death. Gibbs stated that some people at his funeral might say that he “‘shot like [two]’”
people.
11
3. Recorded telephone calls on February 21, 2009
On February 21, 2009, a stimulation was done using the television show, “L.A.’s
Most Wanted.” The show aired at 10:30 p.m. The sheriff’s department gave the show
some information on three different homicides to stimulate the suspected individuals
involved in those crimes to have telephone conversations about the offenses. During the
show, composite drawings of Wallace and Khalill were televised.
Shortly after the program aired, a telephone conversation was recorded between
Wallace, someone named “Evil,” and an unidentified male. During the conversation,
Evil told Wallace that he heard that Wallace and K-9 had been on “America’s Most
Wanted” for “some shit” that had happened on “February 8th and the other day.”
Wallace said that he did not know “what the fuck they’re talking about.”
An unidentified male then came on the line. He stated that “whatever” or
“wherever” Wallace went, he should let the unidentified male know so that he could get
Wallace “some kind of little change to have in [his] pocket when [he] get[s] to where [he
is] going.”
At 10:47 p.m., Gibbs called Wallace and asked if Evil had called. When Wallace
stated that he had “just heard,” Gibbs responded: “Ain’t that some crazy shit?”
At 10:50 p.m., Gibbs and Khalill also had a telephone conversation. When Gibbs
asked if Evil had called, Khalill replied, “Yea, blood well I’m outta here!” Khalill stated
that he needed to “figure some shit out” and to see “what the fuck [was] going on.” He
added that he would be dropped off at “the whooptie.”9
4. Recorded telephone calls on February 24, 2009
On February 24, 2009, another stimulation was done in which the police
conducted searches on certain residences, including those of Khalill and Jerrod.
9 According to Detective Duncan, “whooptie” replaces the noun that is being
discussed and could be used instead of saying “car” or “neighborhood” or “gun.”
12
During a recorded telephone conversation, Khalill told Wallace that the police
threw him in the car and went “through [his] shit.” Khalill said that a homicide detective
asked “a gang of questions” about Wallace. Khalill denied knowing Wallace.
Khalill stated that the police had confiscated 30 photographs and “ransacked” his
belongings. The police told him that they had “‘aired that shit’” and that they had
received 40 telephone calls. Khalill said that the police had found Gibbs’s identification
and wanted to know where he was.
Wallace asked Khalill if he had called “the baby.” Khalill replied, “I called you
first blood.” Wallace said that he was going to school and advised Khalill to “keep [him]
posted.”
Khalill then stated that the “good thing [was] they obviously ain’t got shit.” He
added that someone was talking to the police.
Wallace responded that he was surprised that the police had not searched his
residence and said that he was going to call home to see if a search had begun, noting that
“when they do shit like that, they hit everybody at the same time.”
At 7:10 p.m., Gibbs called Jerrod, who stated that the police had “hit” his house.
Jerrod said that the police had asked for Gibbs and Khalill’s location. Jerrod denied
knowing Gibbs.
Gibbs advised Jerrod that the police “ain’t got shit” and that the police could not
do anything. Jerrod replied that he had heard that the police had “just hit” the houses of
two other 135 Piru gang members. Jerrod stated that the police had found “the thirty odd
box,” which, according to Detective Duncan, was a rifle. Jerrod said that “they took the
gun” and that he had “seen the burner.”
Jerrod then said that the police had searched his house for two hours and brought
in a dog. Gibbs said that he was “fucked if they find that whooptie.”
Jerrod reiterated that someone was “snitching.” He denied doing anything or
knowing anything.
Finally, Jerrod said that when the police arrived at his house, he ran to the back
door and said, “‘Poke, it’s the police!’” Poke “took off running.”
13
5. Recorded telephone conversation between Khalill and “Fat Dog” on
February 28, 2009
During the conversation, Khalill asserted that “somebody’s telling” and that the
identity of the person would “come to light” during any court proceeding. Fat Dog
asserted that the person who was talking to the police would not want to testify because
“we’re going to be in that court waiting.”
6. Recorded telephone conversations on March 3, 2009
On March 3, 2009, at approximately 4:00 p.m., another stimulation was done in
which members of the sheriff’s department went to Wallace’s residence and obtained his
DNA sample. Wallace was told that the DNA sample was being obtained so that it could
be compared to an expended casing at the scene of the 2001 homicide.
After the stimulation, at 4:38 p.m., Wallace called Khalill and told him to leave
wherever he was because the police just “hit” him in Pasadena and took a DNA sample.
Wallace stated that the police suspected that they had committed “that 2001 shit.”
Wallace further said that the police told him that they would obtain Khalill’s DNA.
Wallace said that the police told him that his boat was “‘sinking’” and that he was
on “‘borrowed time.’” Khalill said that things were “getting worse and worse.”
At 5:36 p.m., Gibbs told Khalill that Wallace had just called him to tell him that
the police had taken his DNA.
7. Recorded telephone call between Wallace and his mother on March 3,
2009
During a recorded telephone conversation, Wallace’s mother told Wallace that if
the police had enough evidence, they would have arrested him. Wallace said that the
police were “workin’ on it” and that the police were “gettin’ ready” for a trial. Wallace
advised his mother to call an attorney, tell the attorney that the police had taken his DNA,
and that Wallace wanted to hire him.
14
8. Recorded telephone conversation between Khalill and his mother on
August 3, 2009
Khalill told his mother that he had just been charged with two murders and was
“tryin[’] to just soak it all in.” When Khalill’s mother asked him if he was “even there,”
he responded that he had been “there,” but that he did not know “what the fuck they
[were] talkin’ about.” Khalill complained that people were “tryin[’] to ruin [his] life.”
D. YouTube Video of Khalill
As part of the investigation into the 135 Piru gang, Detective Duncan searched
YouTube for any videos by the gang. During the search, Detective Duncan recognized
Khalill in a video. The video had been placed on YouTube in 2007.
In the video, Khalill performed a rap song. At the start of the video, Khalill asks:
“That kid on San Pedro?” Then, he adds that that person is “dead.” Khalill then states
that he could “back mine, or spray it out and stack mine.” He said that he burned “trees
like a torch” and that he “roll[ed] with gutless gunners” and “Glock cockers.” Khalill
says that there was “blood in the drain” and that “[n]o witness, no name equal no one to
blame.” He also states that “[d]ue to repercussions, neighbors scared to speak.” At
another point, Khalill says, “Welcome to my murder show.” He adds: “One Glock, two
pops, two drops.” He concludes with: “a rider causing more casualties than Al
Queda.”10
E. Feissa’s Proffer Interview and Proffer Agreement
In March 2009, Feissa was arrested and charged with burglary, narcotic sales, and
gang conspiracy. In August 2009, Detective Valento conducted a proffer interview with
Feissa and a prosecutor. As part of that procedure, Feissa entered into a proffer
agreement, which promised that the information Feissa gave during the interview would
not be used against him.
10 According to Detective Duncan, a “rider” is someone who puts in work for the
gang.
15
In the proffer interview, Feissa stated that on the night of Quezada’s murder,
Feissa told appellants that Quezada was not a member of the rival gang, Barrio 13. He
also told Detective Valento: “‘K-9 said that he’s fitting to be gone for [the] rest of his
life. He’s about to be gone for the rest of his life.’” When Detective Valento asked
Feissa what Khalill was referring to when he said that, Feissa answered, “‘the little kid
that got killed.’” Feissa indicated that sometimes he could not remember whether the
information he received from Khalill was in person or on the telephone.
During the proffer interview, Feissa also said that, at some point, he got into
Wallace’s Chevy Tahoe and had a conversation with Wallace, who said that “it had to be
done.” Feissa believed that Wallace was referring to Quezada’s murder.
Feissa was consistent that he spoke to Khalill and Gibbs about the murder. He
was also consistent in reporting that Khalill and Wallace drove by and “saw a Sarrio
slipping,” that Khalill and Wallace returned to Khalill’s house and “talked to the
homeys,” that appellants walked to Avalon Boulevard, that Khalill asked Quezada where
he was from, that Khalill and Gibbs were the shooters and that Wallace was the lookout,
that a nine-millimeter and a Desert Eagle 40 were used, that appellants ran back to
Khalill’s house, and that Wallace got into his Chevy Tahoe and drove away.
Approximately one month later, Feissa entered into a leniency agreement. Under
the terms of the agreement, Feissa pled guilty to the charges against him and agreed to
testify in appellants’ case, as well as in Simpson and Prothro’s case (for the Llanos
murder). Feissa would remain in custody until the preliminary hearings in both cases had
occurred. Feissa would not be sentenced until the conclusion of both trials, and the
sentence would be left to the trial court’s discretion.
Once Feissa was released from custody, he was relocated. In July 2011, he was
arrested for the murder of Daveon Childs. Feissa received no leniency in that case. The
parties stipulated that Feissa was guilty of the murder of Daveon Childs, who was killed
in a drive-by shooting on January 3, 2008.
16
F. Events Occurring After Feissa’s Proffer Agreement
Appellants were arrested on July 31, 2009. On that date, Detective Duncan looked
at the cellular telephone recovered from Wallace and found a video from “L.A.’s Most
Wanted” that had been aired as a stimulation.
Wallace’s phone also had a photograph of Jerrod and Khalill. In the photograph,
Khalill and Jerrod appeared to be “throwing . . . gang signs.”
In the contacts section of Wallace’s phone were listings for “B Spoke,” “Peanut,”
“K-9,” and “Ethie” (Feissa’s moniker).
G. Gang Expert Testimony
Detective Duncan testified as a gang expert. He opined that appellants, Jerrod,
and Feissa were all members of the 135 Piru gang. In August 2001, one rival of the Piru
gang included the Nutty Block Crips. Bickham was a legacy member of the Nutty Block
Crips, as he was the son of a well-known Nutty Block gang member, Michael Tresvant.
Detective Duncan believed that it would have been “a pretty good score for a 135 Piru
gang member to kill the son of Michael Tresvant.”
In July 2008, the number one rival of the Piru 135 gang was the Barrio 13 gang.
Detective Duncan did not believe that Quezada was a member of the Barrio 13 gang.
According to Detective Duncan, gang members sometimes went on missions
together.
In Detective Duncan’s experience, people were reluctant to report gang crimes.
Thus, law enforcement commonly used informants to gain gang information and obtain
information about a particular crime. Informants sometimes got paid. They were often
gang members who had criminal histories.
The prosecutor gave Detective Duncan two hypotheticals based on the 2001 and
2008 murders. He opined that both crimes were committed in association with a criminal
street gang.
17
II. Defense Evidence
A. Gibbs’s Evidence
1. Jolon Gordon (Gordon)
On July 25, 2008, at approximately 8:30 p.m., Gordon was near 139th Street and
Avalon Boulevard to go to the mailbox for his mother. He had a clear view of the
apartment across the street. As he approached the mailbox, he saw one male walking on
Avalon Boulevard; he did not recognize the person. He also saw three people jaywalking
at an angle across the street.
While Gordon was at the mailbox, a “[g]uy got shot.” When Gordon heard the
gunshots, he ducked behind the mailbox. While he was ducking behind the mailbox for
approximately 12 seconds, he saw a black Toyota Camry drive by. The car was “burning
rubber” and was going fast. Gordon also saw the three jaywalkers running back across
the street.
One of the three jaywalkers looked at Gordon as he ran back across the street.
Gordon got a good look at the person, who was a tall African-American male with braids.
Gordon was familiar with appellants from the neighborhood. He did not see them
when the shooting occurred. He was “100 percent sure” that Khalill was not anyone he
had seen on the night of the shooting. When he was interviewed by Detectives Gene
Morse, Valento, and Duncan, he never mentioned Gibbs as being one of the people he
had seen on the night of the shooting.
Gordon spoke to Detectives Valento and Duncan in 2011 in Texas. He was shown
three photographic lineups. He identified Wallace as someone he recognized from the
neighborhood, but not as someone he had seen on the night of the murder. He also
recognized Khalill in one of the lineups.
Later, Gordon told detectives that if Khalill had been involved in the shooting, he
(Gordon) would have said so. But he also told Detective Valento that he was nervous
because Khalill knew “everything” about his family and that his family still lived in the
area. He had no doubt that “the person,” who the parties stipulated was Khalill, would
retaliate.
18
In a later conversation between Gordon and Detective Morse, Gordon did not tell
Detective Morse that he was too scared to identify Khalill or that he was afraid for his
safety for being a snitch.
Appellants never threatened Gordon.
2. Feissa
On March 3, 2009, Detective John Duncan was working with Detective Ty Labbe
in investigating the July 25, 2008, murder. They interviewed Feissa, who was in custody.
During the interview, Feissa blamed someone named Matrell for logging onto his
(Feissa’s) home computer and accessing certain data, as well as handling a package.
Detective Labbe believed that Feissa was lying.
Detective Labbe also accused Feissa of “‘playing [law enforcement].’”
Detective Duncan believed that Feissa was being dishonest about whether he was
a drug trafficker.
Detectives Duncan and Labbe learned that Feissa was a suspect in the murder of
Daveon Childs. When they questioned him about his involvement, he lied and attempted
to blame someone else for that murder.
After the interview with Feissa, Detective Labbe filled out a card indicating that
Feissa was an unreliable informant. Detective Labbe explained that because there was a
threat against Feissa and Detective Labbe could not control him, Feissa was a “liability.”
Also, Feissa was not truthful about his whereabouts or his activities. Although Detective
Labbe completed a card indicating that Feissa was unreliable, that did not mean that he
was being dishonest in regards to the information he provided in the Llanos murder or the
Quezada murder.
In fact, the information provided in the Llanos and Quezada murder investigations
was corroborated.
19
B. Khalill’s Evidence
1. Jackie Kidd (Kidd)
Kidd, Khalill’s aunt, testified that Khalill lived in Atlanta in the 1990’s with his
mother and father. He did not move back to Los Angles until after October 13, 2001, and
she could not recall a time prior to that date when he had visited Los Angeles. (Kidd had
not told law enforcement this information, even though she knew that Khalill had been
arrested.
2. Feissa
On July 29, 2008, at approximately 10:30 p.m., Deputy Greggory Campbell and
his partner, Mark Antrim, conducted a traffic stop of a black Toyota Camry in which
Feissa was a passenger. Deputy Campbell detained the occupants of the vehicle. While
the occupants were being removed from the vehicle, Deputy Campbell discovered a
loaded nine-millimeter handgun at Feissa’s feet. Feissa was arrested. Deputy Campbell
considered the weapons possession to be gang-related. But, he did not believe that they
were going to do a drive-by shooting because there were two females in the car.
Elvie Porter (Porter) was in custody in a case in which he was charged with
attempted murder and a gang allegation. Feissa and Porter were housed in adjoining
cells. At some point, Feissa threatened to testify falsely in Porter’s case. He told Porter
that he had testified falsely in several other cases, including one involving K-9. Feissa
also mentioned that the detectives in the case made him read the murder books and that
he had memorized them.
3. Martin Flores (Flores)
Flores, a court-appointed gang expert, testified that if Quezada was writing graffiti
on the walls in the neighborhood, it would be considered disrespectful to Barrio 13 and
could result in the person being shot or killed. He believed that it was “unheard of” for a
gang member to kill the son of another gang member merely because he was the son of a
20
gang member.11 He was unaware of any conflict between Michael Tresvant and
appellants.
In 2001, in urban low-income neighborhoods, Caprices and Impalas were popular
cars among young people. The Caprice was a popular car with gang members.
From 1999 to 2001, Taylor was “at peace” with Wallace. Flores was unaware of
any conflict between Khalill and either Taylor or Bickham.
When asked a hypothetical question similar to the facts of the Quezada murder,
Flores opined that it was “less likely” that an older gang member would have committed
the crime, and “more likely” that younger gang members would be committing such
crimes.
Finally, Flores testified that he was familiar with cases in which an informant in a
gang used his role as an informant to retaliate against certain gang members. Because
informants were given “incentives,” they had a motive to lie against the gang. Based on
the information he had reviewed, Flores believed that Feissa “at one point was an active
member from 135.”
C. Wallace’s Evidence
Robert Shomer (Shomer), a psychologist who specializes in eyewitness
identification, testified extensively that eyewitness identification is “the least reliable
means of identification we have,” even “under the very best conditions.” Even if a
witness is “very confident,” his identification could “not [be] accurate at all.”
11 According to Flores, shooting Michael Tresvant’s son would not have given
anyone “bragging rights” because the son was not a documented gang member.
21
III. Rebuttal Evidence
A. Detective Valento’s Interviews with Gordon
Detective Valento interviewed Gordon on several occasions. During an interview
in August 2008, Gordon did not mention that he had seen three people running across the
street. He did mention that he had seen a black Camry. Gordon said that he was unsure
whether the Camry was involved in the shooting and that the occupants may have been
trying to drive away from the area because they had heard the gunshots and were afraid.
In May 2011, Detective Valento flew to Texas to interview Gordon because
Gordon had told Detective Morse that he had additional information regarding the
murder. During the May 2011 interview, Gordon stated that he had seen three
individuals walk across the street; then he heard gunshots and ducked behind a mailbox;
then he saw the same three people running back in his direction. Gordon said that one of
the three had stopped and looked at him. Gordon also said that he had seen a person
walking down the street, but that that person was not responsible for the shooting.
Detective Valento showed Gordon some photographic lineups. When Detective
Valento showed Gordon the photographic lineup containing Khalill’s photograph,
Gordon did not make any identifications. In another lineup containing Wallace’s
photograph, Gordon mentioned Wallace’s gang moniker, but did not specifically identify
Wallace’s photograph. He did not identify Gibbs in a third photographic lineup.
After the interview, Gordon called Detective Valento and said that he had more
information to disclose. Detective Valento asked Gordon if he had originally been
reluctant to speak to detectives due to fear, and Gordon replied, “‘Something like that,
bro.’”
Detective Valento later interviewed Gordon in a car outside of Dallas. Gordon
said that he recognized someone in one of the lineups, but that he was nervous to make an
identification. Gordon stated that he recognized “K-9 from 135.” He also said that
Khalill knew Gordon and his family. And, Gordon stated that someone had thrown
something at his vehicle, and when Gordon stopped and got out of his car, Khalill
confronted him and said “‘I know where you live.’”
22
Gordon called Khalill a “ringleader.” When Detective Valento asked if Gordon
meant that Khalill was a “shot-caller,” Gordon agreed that that was a better description.
Khalill’s position in the gang was one reason why Gordon was fearful of retaliation.
B. Search of Feissa’s Computer
At some point, Feissa’s computer was searched. On the computer was a
photograph of Llanos, with his face crossed out; the number 135 appeared below the face.
Feissa was in jail at the time Llanos was murdered.
Feissa told Detective Valento that Simpson used the paint brush function on the
computer to cross out the photograph of Llanos. Simpson was subsequently convicted of
murdering Llanos.
Feissa’s computer also contained a photograph of a hand holding a handgun. The
weapon appeared to be a “small caliber handgun, probably .380 or [a] .25 auto.”
DISCUSSION
I. The trial court did not err in denying the severance motions
Gibbs argues that the trial court erred in denying his motion to sever count one
from the other counts.12
Section 954 permits the joinder of “‘two or more different offenses of the same
class of crimes or offenses.’” (People v. Myles (2012) 53 Cal.4th 1181, 1200; see also
People v. McKinnon (2011) 52 Cal.4th 610, 630.) “The law favors the joinder of counts
because such a course of action promotes efficiency.” (People v. Myles, supra, at
p. 1200.)
12 Below, Wallace filed a motion to sever his case from that of his codefendants; that
motion was also denied by the trial court. On appeal, Wallace joins in the argument
raised by Gibbs. But, Wallace’s “reliance solely on [Gibbs’s] arguments and reasoning is
insufficient to satisfy his burden” of showing error and prejudice. (People v. Nero (2010)
181 Cal.App.4th 504, 510, fn. 11.) After all, their positions are completely different—
Gibbs argues that count one should have been severed from the trial; Wallace argued that
his case should have been severed from that of his codefendants. Because Wallace raised
a different claim in the trial court, and because that claim is governed by a different test
than the one raised by Gibbs on appeal (People v. Homick (2012) 55 Cal.4th 816, 848),
Wallace’s contention fails.
23
Here, counts one through three were of the same class of crimes or offenses
because they alleged murder and attempted murder. (People v. Thomas (2011) 52 Cal.4th
336, 350; People v. Soper (2009) 45 Cal.4th 759, 771.) Thus, the statutory requirements
of joinder were met.
When the statutory requirements for joinder are satisfied, a trial court has the
discretion to sever the counts; however, “there must be a ‘clear showing of prejudice to
establish that the trial court abused its discretion in denying the defendant’s severance
motion.’” (People v. Myles, supra, 53 Cal.4th at p. 1200.) An abuse of discretion occurs
when the ruling by the trial court exceeds the bounds of reason. (People v. Hartsch
(2010) 49 Cal.4th 472, 493.)
A refusal to sever charges may be an abuse of discretion when: (1) evidence on
the charges would not be cross-admissible in separate trials; (2) certain charges are likely
to inflame the jury against the defendant; (3) a weak case is joined with a strong case, or
two weak cases are joined together; and (4) any of the charges carries the death penalty or
the joinder of them turns the matter into a capital case. (People v. Myles, supra, 53
Cal.4th at p. 1201.)
Here, some of the evidence related to the wiretapped recordings would have been
cross-admissible if the charges based on the 2001 murder and attempted murder had been
tried separately from the 2008 murder charge. For example, many of the recorded
telephone calls showed a connection among all three appellants or a connection between
Wallace and Khalill. Because the evidence was cross-admissible, that alone was
sufficient for the trial court to refuse to sever the charged offenses. (People v. Hartsch,
supra, 49 Cal.4th at p. 493; People v. Soper, supra, 45 Cal.4th at pp. 774–775.)
Even if the evidence were not cross-admissible, other factors confirm that the trial
court did not abuse its discretion in rejecting Gibbs’s severance motion. Because the
charges related to the 2001 and 2008 incidents both involved senseless and unprovoked
murders, one was not more likely to inflame the jury than the other. (People v. Soper,
supra, 45 Cal.4th at p. 780.) If anything, the 2008 murder was more offensive than the
2001 incident because the 2001 incident involved a drive-by shooting, in which Bickham
24
was killed and gunshots were fired at Taylor, whereas the 2008 incident involved
numerous gunshots fired at Quezada while he was on the ground. Although Gibbs argues
that the gang evidence related to the 2001 crime was unduly inflammatory, this evidence
“paled in comparison to the evidence of the most prejudicial facet” of the 2008 murder—
“its absolute senselessness,” its utter brutality, and the extreme amount of overkill.
(People v. McKinnon, supra, 52 Cal.4th at p. 631.) Thus, there was little likelihood that
the joinder of the charges would inflame the jury.
Contrary to Gibbs’s assertion, the evidence related to the 2008 murder was not
weak compared to the evidence of the 2001 charges. The 2001 charges were supported
by the testimony of Taylor, who identified Khalill and Wallace as being involved in the
crimes, as well as evidence that the police found ammunition at Wallace’s house that was
the same caliber as casings found at the murder scene. The 2008 charge was supported
by Feissa’s testimony. The recorded telephone conversations further established the
connection among appellants.
Although Gibbs claims that the evidence related to the 2008 murder was weak
because it relied on Feissa’s testimony, Feissa’s background actually buttressed his
testimony because it supported an inference that he would have had access to appellants
and that they would have been willing to make incriminating statements to him. Even if
the 2001 evidence may have appeared somewhat stronger than the 2008 evidence at the
time of the severance motion, “the salient point is that the proffered evidence was
sufficiently strong in both cases.” (People v. Soper, supra, 45 Cal.4th at p. 781.)
Moreover, the evidence related to the 2001 charges and the evidence related to the 2008
murder were sufficiently distinct “as to render the likelihood of prejudice minimal.”
(People v. Mendoza (2000) 24 Cal.4th 130, 162.) In light of these factors, there is little
likelihood that the jury was improperly influenced by evidence of one murder in
determining guilty on the other.
Notably, “it [is] always . . . possible to point to individual aspects of one case and
argue that one is stronger than the other.” (People v. Soper, supra, 45 Cal.4th at p. 781.)
“A mere imbalance in the evidence, however, will not indicate a risk of prejudicial
25
‘spillover effect,’ militating against the benefits of joinder and warranting severance of
properly joined charges.” (Ibid.) “Furthermore, the benefits of joinder are not
outweighed—and severance is not required—merely because properly joined charges
might make it more difficult for a defendant to avoid conviction compared with his or her
chances were the charges to be separately tried.” (Ibid.)
Gibbs further argues that the denial of his severance motion resulted in a due
process violation. We are not convinced.
“Even if a trial court’s severance of joinder ruling is correct at the time it was
made, a reviewing court must reverse the judgment if the ‘defendant shows that joinder
actually resulted in “gross unfairness” amounting to a denial of due process.’” (People v.
Mendoza, supra, 24 Cal.4th at p. 162; see also People v. Myles, supra, 53 Cal.4th at
p. 1202.) Here, there was no due process violation.
First, the evidence related to the 2001 offenses and the evidence relating to the
2008 murder were “simple and distinct.” (People v. Soper, supra, 45 Cal.4th at p. 784.)
Thus, the jury would have been able to “compartmentalize the evidence presented in the
two cases,” thereby insuring that there would be “no improper spillover effect” or gross
unfairness by the joinder of the charges. (Ibid.)
Second, the separate nature of the 2001 offenses and 2008 murder was highlighted
by the prosecutor and the trial court. For example, the prosecutor made clear during
opening statement that count one (the murder of Quezada) was “charged against all three
defendants,” while counts two and three (relating to the murder of Bickham and the
attempted murder of Taylor) applied “only to defendants Wallace and Khalill.” The
prosecutor reiterated that counts two and three “do not pertain to defendant Gibbs. I want
to be clear about that.” The trial court also emphasized that Gibbs was not charged in
counts two and three, noting, after Taylor’s testimony, that Gibbs was “not charged in
this offense, is not suspected in his offense,” and that “nothing regarding the testimony of
this witness or the allegations on this case are to be used against Mr. Gibbs for any
purpose.”
26
Moreover, the trial court instructed the jury that “[a]ll three defendants are charged
in count 1,” which involved the murder of Quezada, but that only Khalill and Wallace
were charged in counts two and three. The trial court also instructed the jury that it “must
separately consider the evidence as it applie[d] to each defendant” and that it “must
decide each charge for each defendant separately.” And, the trial court instructed the jury
that Wallace and Khalill, but not Gibbs, were charged with the special circumstance of
having been convicted of more than one murder in this case. The statements by the
prosecutor and the trial court instructions “mitigated the risk of any prejudicial spillover.”
(People v. Soper, supra, 45 Cal.4th at p. 784.)
Citing U.S. v. Bradley (9th Cir. 1993) 5 F.3d 1317 (Bradley) and Bean v. Calderon
(9th Cir. 1998) 163 F.3d 1073 (Bean), Gibbs contends that the jury would have
disregarded the instructions. However, decisions by federal courts are not binding on this
court. (People v. Beltran (2013) 56 Cal.4th 935, 953.) And, Gibbs failed to provide any
evidence to overcome the presumption that the jurors followed the trial court’s
instructions. (People v. Racklin (2011) 195 Cal.App.4th 872, 877.)
In any event, the two cases are distinguishable. Bradley did not involve a
severance motion. (Bradley, supra, 5 F.3d at pp. 1319–1321.) And, in that case, the
challenged evidence showed a propensity for violent crime and became the focus of latter
stages of trial and the prosecutor’s closing argument. (Id. at p. 1322.) In contrast, the
evidence here related to two distinct incidents and the instructions made clear that Gibbs
was not charged in connection with the 2001 crimes.
Likewise, Bean is inapposite. In that case, the defendant moved to sever two cases
in which he was charged. The prosecutor urged the jury to consider evidence of the
defendant’s modus operandi to determine the defendant’s guilt in both cases and the
instructions given only stated that each count charged a distinct offense and had to be
decided separately. (Bean, supra, 163 F.3d at pp. 1083–1084.) In contrast, here it was
made clear by both the prosecutor and the trial court’s instructions that only count one
applied to Gibbs.
27
Gibbs’s reliance upon People v. Albarran (2007) 149 Cal.App.4th 214 is also
misplaced. That case did not involve a severance motion; instead, it considered the
admission of gang evidence that was deemed irrelevant to the charges. (Id. at pp. 227–
228.)
Finally, for the same reasons already discussed, a more favorable result for Gibbs
was not reasonably probable even if count one had been tried separately from counts two
and three. (People v. Tafoya (2007) 42 Cal.4th 147, 162.) Accordingly, we conclude that
the trial court did not err in denying Gibbs’s severance motion.
II. The trial court properly admitted Feissa’s preliminary hearing testimony
Gibbs and Khalill argue that the trial court erred by admitting Feissa’s preliminary
hearing testimony.13
A. Events at the preliminary hearing
Prior to the preliminary hearing, Khalill’s attorney told the trial court that there
was “uncharged conduct on behalf of [Feissa] regarding [a] shooting incident.” The
prosecutor stated that there was “a pending investigation” into the matter. Khalill’s
attorney responded that he needed the information because Feissa was an informant and
the information might relate to “motive and biases and those kind[s] of things.”
Wallace’s counsel then noted that Feissa was “apparently making deals to testify
against [appellants] in return for something from the prosecutor for a case that he has
pending.” He opined that “this might be one of those incidents” and that Feissa was
“testifying not only in this case but in other cases.” Wallace’s attorney then informed the
trial court that Wallace did not want to “waive any more time.” He suggested that the
information on Feissa be “flushed] out some other time.”
13 Wallace attempts to join in their arguments. However, his “reliance solely on
[Gibbs’s and Khalill’s] arguments and reasoning is insufficient to satisfy his burden” of
showing error and prejudice. (People v. Nero, supra, 181 Cal.App.4th at p. 510, fn. 11.)
Unlike Gibbs and Khalill, Wallace decided not to cross-examine Feissa during the
preliminary hearing. Thus, their arguments do not necessarily establish error or prejudice
in his case.
28
The trial court declared a recess until the following morning and requested that
Gibbs and Khalill’s attorneys determine whether they wanted to proceed with the
preliminary hearing or conduct a hearing into the investigation of Feissa.
The next day, Khalill’s counsel stated that he was requesting “all of the
information” law enforcement had regarding the incident in which Feissa was a suspect.
Counsel argued that the information was relevant to Feissa’s “potential bias and/or
motive to cooperate with the police.” Gibbs and Wallace joined in the request.
The trial court denied the motion, finding that the attorneys could cross-examine
Feissa on bias and “prior investigation.” The preliminary hearing then began. Feissa was
called as a witness.
1. Cross-examination by Khalill
Feissa admitted that he had spoken with the police about this case “[a] few” times;
the conversations were always recorded.
He testified that he had a criminal case involving a burglary. Under a leniency
agreement, Feissa would be sentenced after trial, but would be released from custody
after testifying at the preliminary hearing. He was facing prison time for the crimes and
was “scared of prison.”
Feissa further testified that he wanted to go home as soon as he could.14 At first
he stated that he was facing “a couple of years” in state prison due to his plea, but then
eventually admitted that he was facing five to seven years.15
Khalill’s attorney then asked Feissa if he had been convicted in a narcotics case.
Feissa replied that he had, that he went to court in March 2008, and that he pled guilty in
a marijuana case. He said that he was told by the prosecutor that the crime would be a
misdemeanor if he did community service. Feissa promised to do the community service.
14 The magistrate did not allow defense counsel to pose questions about whether
Feissa wanted to be in jail during the summer, asking counsel to “move through this.”
15 The magistrate stopped questions about whether seven years was more than two
years, commenting that he did not want to “waste time” and did not want any “drama.”
29
When Khalill’s attorney pushed questions about whether Feissa “gave [his] word,” the
trial court sustained the prosecutor’s objections on relevance grounds; the trial court also
found the question to be argumentative. Khalill’s attorney did ask Feissa whether he had
performed the community service; he replied that he did not.
Khalill’s attorney was allowed to ask Feissa whether he was having problems with
his memory. He admitted that he did not “remember things,” and he admitted that he had
told someone that he forgot things as a result of past drug use.16
Feissa invoked his Fifth Amendment privilege when asked questions about a
murder and two attempted murders that had occurred on Tarrant Street (the Tarrant Street
murder) and when asked whether there were any other criminal investigations pending.
Feissa testified that he was paid for information he provided in this case, but he
did not recall the amount; the trial court sustained an objection to questions about
whether he was paid in cash and whether he was going to pay taxes on those monies.
Feissa was not present during the 2008 murder and had not been a witness to it.
His knowledge was limited to what Khalill, Gibbs, and others had told him. He denied
that he was giving information to the police to get out of jail.
Throughout his questioning of Feissa, Khalill’s attorney repeatedly argued with
the trial court, contending that he was not being allowed to cross-examine Feissa
meaningfully.
2. Cross-examination by Gibbs
Feissa testified that he joined the 135 Piru gang in 2006, but he was no longer in
the gang. Gibbs was a member of the gang, and Feissa had talked to him in the past.
Feissa stated that he had “hit . . . up” Quezada once in front of Quezada’s house.
Feissa knew it was dangerous to hit up Quezada while in another gang’s territory.
On July 28, 2008, Feissa was at home. He went to Khalill’s house at night at some
point after the murder. While there, Feissa also talked to Gibbs.
16 The trial court did not allow questions about which drugs he had used and the
length of drug use.
30
Feissa had smoked a “[c]ouple of blunts” of marijuana that day, one in the
morning and one in the evening. Feissa said that they did not make him high.
Feissa used cocaine before he went to jail. Although he did not know the date that
he last used cocaine, he did not use cocaine on the day of the murder.
He received money for information on this case.
The proffer agreement required Feissa to be truthful. If he lied or someone
thought he was lying, the deal would “go away.”
Later, Feissa testified that he drove a car in 2008. When asked what type of car he
had been driving, Feissa initially invoked the Fifth Amendment. Later, he answered that
he did not own a car, but he drove a white 2001 Volkswagen Jetta.
Feissa testified that he was familiar with the area of 139th Street and Avalon
Boulevard. There was a mailbox on the northwest corner and, if a person was standing at
that mailbox, he could see the location where the murder occurred on July 28, 2008.
Feissa testified that Gibbs told him that he walked across Avalon Boulevard to
shoot Quezada. He ran away after the shooting and went to Khalill’s house.
Gibbs told Feissa about the murder while he was at a pool party. Gibbs, Feissa,
and Jerrod were in the backyard when Feissa asked Gibbs about the murder. Although
Gibbs said that a “nine and 40” were used in the murder, Feissa admitted that he told the
police that one of the guns was a Desert Eagle.17 He believed what Gibbs said about the
incident.
Feissa asserted the Fifth Amendment when asked if he had to put in work for the
gang.
Feissa was given a Toyota Tercel by Detective Shaw. Sheriff’s deputies would let
Feissa go if they pulled him over.
17 Gibbs did not mention the Desert Eagle to Feissa. And later, Feissa testified that
he did not know what kind of guns were used in the shooting of Quezada. But, he had
been told that the two most common weapons that the 135 Piru gang used were the nine-
millimeter and the Desert Eagle.
31
3. Cross-examination by Wallace
Wallace did not cross-examine Feissa.
4. Further cross-examination by Khalill
Feissa testified that he was not given an unmarked police car to drive. He had told
the police that the first name of Peanut was Trayvon or Laquon. He also told them that
Khalill did not say that he had shot anyone. Feissa was not close to anyone in the 135
Piru gang, but he did not tell the police that.
After Feissa received money from Detective Shaw, Feissa continued to “hang[]
around” the neighborhood. He never smoked PCP. In 2008, he had a fist fight with
someone in the 135 Piru gang.
5. Further cross-examination by Gibbs
Since high school, Feissa had arguments with Gibbs.
B. Events at trial
Prior to trial, the prosecutor moved to admit Feissa’s preliminary hearing
testimony because Feissa was unavailable (Evid. Code, §§ 240, 1291). In the motion, the
prosecutor stated that she anticipated that Feissa would assert his Fifth Amendment rights
if called to testify in appellants’ case.
The prosecutor argued that at the time of the preliminary hearing, Feissa had been
in custody on two counts of second degree burglary, one count of transporting a
controlled substance, and one count of criminal street gang conspiracy. Pursuant to a
“leniency agreement,” Feissa pled guilty to the charges and testified at the preliminary
hearing in this matter, as well as in a preliminary hearing in a case against Prothro and
Simpson. Feissa’s sentence for his case would be determined by the trial court and could
range from time served to seven years. Prior to entering into the leniency agreement,
Feissa gave a “‘Proffer Interview,’ which necessitated a ‘proffer agreement’ granting him
protection against his proffer statements being used against him.” The prosecutor further
asserted that, pursuant to the leniency agreement, Feissa had been released on his own
recognizance after his testimony at the preliminary hearing and had relocated out of state.
32
The prosecutor then pointed out that on July 7, 2011, Feissa had been charged with
the Tarrant Street murder. Feissa’s case also involved “relevant gun and gang
allegations,” such as section 186.22. The prosecutor argued that, in light of the pending
charges against Feissa, she reasonably anticipated that he would assert his Fifth
Amendment privilege if called to testify. After all, “[a]ny testimony by Feissa” in
appellants’ case regarding statements made to him by appellants would be “incriminating
to Feissa because it [would] demonstrate[] his membership and status level within the
135 Piru criminal street gang.”
Prior to trial, the court held a hearing. The prosecutor called Feissa, who invoked
his Fifth Amendment rights and refused to answer the prosecutor’s questions. After
taking judicial notice of the fact that Feissa was being prosecuted for murder and that
there was a section 186.22 allegation the trial court sustained Feissa’s assertion of his
Fifth Amendment privilege.
The prosecutor then asked Feissa if he intended to invoke his Fifth Amendment
privilege to any questions about Quezada’s murder. He replied, “Yes.”
Feissa also invoked the Fifth Amendment when Gibbs’s attorney asked him
questions about whether he knew or recognized Gibbs, whether he had signed a
document in which the Los Angeles Sheriff’s Department had found him an unreliable
informant, or had any conversations with Gibbs. Gibbs’s attorney argued that Feissa’s
invocation of the Fifth Amendment was “inappropriate” and that Feissa should be
directed to answer the questions because they did not relate to any charges against him.
Wallace and Khalill joined in Gibbs’s argument.
Feissa’s attorney argued that anything Feissa said about any relationship he had
with appellants would potentially incriminate him in his pending case because the case
involved gang allegations. The trial court sustained Feissa’s assertion of privilege.
In response to questions from Khalill’s attorney about whether he grew up on the
streets of Compton, whether he received money from the sheriff’s department, the
shooting on Tarrant Street, receipt of leniency, and whether he knew Khalill, Feissa again
33
asserted the Fifth Amendment. Khalill’s counsel objected. The trial court sustained
Feissa’s invocation of the Fifth Amendment to each question.
Based upon what had transpired, Wallace’s attorney elected not to cross-examine
Feissa. The prosecutor had no further questions.
After hearing argument from counsel, the trial court found that Feissa was
unavailable due to the assertion of his Fifth Amendment privilege. It found that he had
legitimately invoked the Fifth Amendment to the questions asked. It also determined
that, after reviewing the preliminary hearing transcript, appellants had had the
opportunity to “fully cross-examine” Feissa at the preliminary hearing. Thus, his
preliminary hearing testimony could be read to the jury.
With respect to due process, the trial court noted that appellants had the right to
attack Feissa’s credibility with information that was “not within the four corners of the
preliminary hearing transcript.” In other words, if the defense had any documents or
witnesses that “would shed light” on Feissa’s credibility, they could “bring it on.”
Likewise, if there was information that “on prior occasions [he had] admitted to being
untruthful, that [he had] given false testimony, or that [he had] engaged in other criminal
conduct [that was] not addressed within the four corners of the preliminary hearing
transcript,” the defense would be allowed to admit such evidence. Later, the trial court
reiterated that it was going to allow the defense to “use other collateral impeachment
within the scope of [Evidence Code section] 352” to impeach Feissa and as not limiting
them solely to the impeachment that occurred during the preliminary hearing.
Later in the proceedings, the trial court warned defense counsel that they would be
“really limited on the Tarrant Street murder as far as what information” they sought to
admit. But, it was not, and would not, preclude the defense from impeaching Feissa “on
other bad crimes . . . or prior convictions involving moral turpitude, et cetera.” The trial
court agreed that the defense was allowed to admit evidence of various instances in which
Feissa had lied and the knowledge of the police that Feissa had lied.
34
C. Appellants had an adequate opportunity to cross-examine Feissa at the
preliminary hearing
“Although defendants generally have the right to confront their accusers at trial,
this right is not absolute.” (People v. Seijas (2005) 36 Cal.4th 291, 303; People v. Harris
(2005) 37 Cal.4th 310, 332.) “‘If a witness is unavailable a trial and has testified at a
previous judicial proceeding against the same defendant and was subject to cross-
examination by that defendant, the previous testimony may be admitted at trial.’”
(People v. Seijas, supra, at p. 303; see also People v. Harris, supra, at p. 332; Evid.
Code, § 1291.)
“To admit prior testimony of an unavailable witness, the party against whom it is
offered . . . must not only have had the opportunity to cross-examine the witness at the
previous hearing, he must also have had ‘an interest and motive similar to that which he
has at the [subsequent] hearing.’” (People v. Smith (2003) 30 Cal.4th 581, 611; People v.
Harris, supra, 37 Cal.4th at pp. 332–333.) “[I]t is the opportunity and motive to cross-
examine that matters, not the actual cross-examination.” (People v. Smith, supra, at
p. 611.)
Here, appellants had an adequate opportunity to cross-examine Feissa. They were
allowed to question him about a variety of topics related to his credibility and his possible
motives to be untruthful, including the leniency agreement he had entered into, his fear of
being incarcerated and the length of the sentence he was facing, his failure to complete
community service in another case, his memory problems and whether those problems
were caused by drug usage, the fact that he had been arrested when he decided to give
information to the police about the Quezada murder, the money he had received for
giving information to law enforcement, his membership in the 135 Piru gang, his
concession that he had “hit . . . up” Quezada prior to Quezada’s murder, the type of car he
drove in July 2008, and the fact that he had not been present during the 2008 murder.
The restrictions on the questioning imposed by the magistrate primarily related to
redundant questioning on matters already covered or questioning on irrelevant or minor
topics. For example, the magistrate refused questions regarding whether Feissa wanted to
35
be incarcerated in the summer, whether seven years in state prison was more than two
years in state prison, whether seven years in state prison was a long time, whether Feissa
had told a judge that he would do community service, the reasons why Feissa had not
completed his community service and why he believed that there had been a probation
violation hearing, the type of drugs Feissa had ingested that led to his memory problems
and the length of that drug use, whether he gave the police information on another
homicide case, and whether he was paid in cash for the information he provided to law
enforcement and whether he paid taxes on that money. Thus, the magistrate imposed
only minor limitations during the cross-examination of Feissa; he did not unduly restrict
appellants’ ability to fully cross-examine him. (People v. Valencia (2008) 43 Cal.4th
268, 294.)
Moreover, at trial, the trial court allowed the defense to attack Feissa’s credibility
with information that was “not within the four corners of the preliminary hearing
transcript.” As a result, appellants presented testimony to the jury that two detectives
believed that Feissa had been untruthful in a number of situations, including lying about
his lack of involvement in the murder of Daveon Childs. The defense also presented
evidence that Feissa threatened to testify falsely in Porter’s trial; that Feissa had stated
that he had testified falsely in other trials, including a trial involving someone named K-
9; and that Feissa claimed that he had read the murder books in appellants’ case and had
memorized them. The jury also learned that Feissa sometimes attempted to blame other
people to divert suspicion from himself and that he was involved in an incident with
Llanos prior to Llanos’s murder.18 Finally, the defense presented evidence that Feissa
had been arrested on July 29, 2008, in a black Camry after a loaded nine-millimeter
18 The jury also heard that Feissa had given information in the Llanos case and had
received $7,250 for that information.
36
handgun was found at his feet.19 Thus, the jury heard substantial evidence related to
Feissa’s credibility and his possible involvement in Quezada’s murder.
In sum, appellants “undertook a thorough and effective cross-examination” of
Feissa and were able to comprehensively question him about his motives to testify falsely
and about factors that affected his credibility. (People v. Hollinquest (2010) 190
Cal.App.4th 1534, 1549.) Appellants were also allowed to impeach Feissa’s credibility
through evidence that had not been presented at the preliminary hearing. As such, the
trial court did not err or violate appellants’ constitutional rights in admitting the
preliminary hearing transcript. (People v. Valencia, supra, 43 Cal.4th at p. 294.)
Khalill’s reliance upon Davis v. Alaska (1974) 415 U.S. 308 (Davis), People v.
Brock (1985) 38 Cal.3d 180 (Brock), and Smith v. Illinois (1968) 390 U.S. 129 (Smith) is
misplaced. In Davis, the defendant was allowed only a limited cross-examination of the
witness (Davis, supra, at p. 318); in contrast, as set forth above, appellants were allowed
to extensively cross-examine Feissa about his credibility and motives. In Brock, the
preliminary hearing examination of a witness occurred in a hospital room because the
witness had been hospitalized for terminal diseases; during the examination, he was on a
number of medications and showed signs of discomfort, disorientation, and confusion.
(Brock, supra, at pp. 191–192.) Contrariwise, here, appellants engaged in an extensive
cross-examination of Feissa, and Feissa was not unable to answer the questions. Finally,
in Smith, the defendant was unable to question a witness about his true name and the
location of his residence. (Smith, supra, at pp. 130–131.) Here, the defense was able to
question Feissa about topics that impacted his credibility and motives for identifying
appellants as the individuals who committed the Quezada murder.
19 Gordon testified that he saw a black Toyota Camry drive by when Quezada was
shot.
37
D. Feissa’s infrequent invocation of his Fifth Amendment rights did not prevent
appellants from an adequate opportunity to cross-examine him
Gibbs and Khalill argue that Feissa’s invocation of his Fifth Amendment rights at
the preliminary hearing prevented them from having an adequate opportunity to cross-
examine Feissa; therefore, his preliminary hearing testimony should have been stricken.
“It is a bedrock principle of American (and California) law, embedded in various
state and federal constitutional and statutory provisions, that witnesses may not be
compelled to incriminate themselves.” (People v. Seijas, supra, 36 Cal.4th at p. 304; see
also People v. Williams (2008) 43 Cal.4th 584, 613.) “‘To invoke the privilege, a witness
need not be guilty of any offense; rather, the privilege is properly invoked whenever the
witness’s answers “would furnish a link in the chain of evidence needed to prosecute” the
witness for a criminal offense.’” (People v. Williams, supra, at pp. 613–614.) “A
witness may assert the privilege who has ‘reasonable cause to apprehend danger from a
direct answer.’” (People v. Seijas, supra, at p. 304; see also People v. Williams, supra, at
p. 614.) “‘To sustain the privilege, it need only be evident from the implications of the
question, in the setting in which it is asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because injurious
disclosure could result.’” (People v. Seijas, supra, at p. 304; accord People v. Williams,
supra, at p. 614.)
A witness’s refusal to answer questions based on his right against self-
incrimination may curtail a party’s ability to adequately cross-examine that witness.
(People v. Seminoff (2008) 159 Cal.App.4th 518, 525.) Courts “have recognized that
striking a witness’s entire testimony is a drastic solution and that there are alternatives
when the witness has refused to answer one or two questions on cross-examination on
matters that are collateral, such as credibility.” (People v. Sanders (2010) 189
Cal.App.4th 543, 556; see also People v. Seminoff, supra, at pp. 525–526.) “In sum,
there is solid support, both judicial and scholarly, for the proposition that when one or
two questions asked during cross-examination are at stake and those questions relate to a
collateral matter such as the nonparty witness’s credibility, the trial court need not strike
38
the entirety of that witness’s direct testimony.” (People v. Sanders, supra, at p. 556;
accord People v. Seminoff, supra, at p. 527.)
Here, striking Feissa’s preliminary hearing testimony was not required because the
questions only related to collateral matters. For example, Feissa asserted his Fifth
Amendment privilege to questions related to the police investigation of Feissa’s possible
involvement in the Tarrant Street murder, a case unrelated to the one against appellants.
Feissa also invoked the privilege when asked whether he had put in work for the gang.
He also invoked the Fifth Amendment privilege when asked about the type of car he
drove in 2008. While this question might have related to whether Feissa was involved in
Quezada’s murder, he subsequently answered the question.20 Because all of the
questions Feissa refused to answer related to collateral matters, the trial court did not err
in refusing to strike all of his preliminary hearing testimony. For the same reason,
appellants’ ability to cross-examine Feissa was not curtailed.21
Khalill urges reversal pursuant to Lawson v. Murray (4th Cir. 1988) 837 F.2d 653(Lawson). As previously set forth, decisions of the federal district or appellate courts are
not binding on state courts. (People v. Racklin, supra, 195 Cal.App.4th at p. 877.) In any
event, that case is distinguishable. In Lawson, the defense witness who invoked the Fifth
Amendment “was clearly attempting to say just enough to exonerate” the defendant
“without implicating himself,” and was, thus, “trifling with the truth” on matters that
20 And, during trial, the defense presented evidence that Feissa had been arrested on
July 29, 2009, in a black Toyota Camry after a loaded nine-millimeter handgun was
found at his feet.
21 It follows that People v. Hathcock (1973) 8 Cal.3d 599 is distinguishable. In that
case, the witness asserted the Fifth Amendment privilege to questions asking her to
“repudiate specific portions of her prior testimony relating to defendant’s participation in
the crime.” (Id. at p. 616.) Collateral matters were not at stake. (Ibid.) And, in any
event, the Court of Appeal did not reach the merits of the question of whether her refusal
to answer these questions was proper as it found the issue forfeited on appeal. (Ibid.)
39
were “so relevant and pertinent.” (Lawson, supra, at p. 656.) In contrast, Feissa only
invoked the privilege to questions on collateral matters.
E. The motion for new trial was properly denied
After appellants were convicted, Gibbs filed a motion for new trial asserting that
his constitutional rights had been violated when Feissa’s preliminary hearing testimony
was read to the jury. Wallace and Khalill joined in Gibbs’s motion. The trial court
denied the motion. On appeal, Khalill argues that the trial court erred because the
prosecution made Feissa an unavailable witness by charging him with the murder of
Daveon Childs.
We review the trial court’s order for abuse of discretion. (People v. Lightsey
(2012) 54 Cal.4th 668, 729.)
Under Evidence Code section 240, subdivision (b), “[a] declarant is not available
as a witness if the exemption, preclusion, disqualification, death, inability, or absence of
the declarant was brought about by the procurement or wrongdoing of the proponent of
his or her statement for the purpose of preventing the declarant from attending or
testifying.” (See People v. Hollinquest, supra, 190 Cal.App.4th at p. 1551.) To establish
a violation of a defendant’s confrontation rights due to misconduct by the prosecutor that
resulted in the unavailability of a witness, the defendant must prove three elements:
(1) the prosecutorial misconduct “was entirely unnecessary to the proper performance of
the prosecutor’s duties and was of such a nature as to transform” a “witness willing to
testify into one unwilling to testify”; (2) “the prosecutor’s misconduct was a substantial
cause in depriving the defendant of the witness’s testimony”; and (3) the testimony the
defendant was unable to present was material to his defense.22 (People v. Hollinquest,
supra, at p. 1552.)
22 Because Khalill is asserting that the prosecutor procured Feissa’s absence, People
v. Roldan (2012) 205 Cal.App.4th 969 does not apply. In that case, the prosecutor did
nothing to prevent the victim from being deported. (Id. at pp. 976–985.)
40
Here, the trial court did not abuse its discretion in denying the motion for new trial
because appellants have not provided any evidence that the prosecutor had an improper
motive or otherwise engaged in misconduct that resulted in Feissa’s assertion of his
privilege against self-incrimination. Although Khalill argues that the prosecution should
have granted immunity to Feissa, delayed charging him, or held his trial more quickly,
there is no evidence that the prosecutor acted improperly. The prosecution is not
obligated to confer immunity to a witness. (People v. Williams, supra, 43 Cal.4th at
p. 622; People v. Hollinquest, supra, 190 Cal.App.4th at p. 1551.) There is no evidence
that the prosecution purposely delayed the start of trial until after Feissa was charged in
the Daveon Childs case. And, there is nothing in the appellate record indicating that the
prosecution intentionally made Feissa unavailable for trial. “In the absence of any
evidence” of improper motive or misconduct, appellants have failed to establish that “the
prosecutor acted with the specific objective of preventing the witness from testifying
within the meaning of [Evidence Code] section 240, subdivision (b)” or that she violated
appellants’ confrontation rights. (People v. Hollinquest, supra, 190 Cal.App.4th at
p. 1553.) Thus, the trial court properly denied appellants’ motion for new trial.
III. The trial court did not abuse its discretion in refusing to allow Gibbs to play Feissa’s
entire recorded statement
Gibbs contends that the trial court erred when it refused to allow him to play a 42-
minute recording of an interview of Feissa by law enforcement.23
A. Relevant facts and proceedings
During the trial, the trial court told Gibbs that it was “disinclined” to allow him to
“play the entire transcript” of an interview with Feissa because “much of it [was] not
relevant to the issues in the case.” The trial court stated that it would allow the defense to
23 Again, Wallace joins in Gibbs’s argument. In the trial court, Wallace noted that
he “would just like to hear Mr. Feissa’s voice, to put voice to the transcript,” but he did
not join in Gibbs’s motion to play the entire recorded interview. The failure to join in a
motion of a codefendant constitutes a waiver of the issue on appeal. (People v. Wilson
(2008) 44 Cal.4th 758, 793.)
41
“call whatever witnesses” were necessary “to establish whether or not on a prior occasion
Mr. Feissa lied to law enforcement.” But, the trial court found issues related to another
murder and “a lot of other things” in the recording irrelevant.
Gibbs responded that Feissa had been “deemed to be a confidential, reliable
informant,” but that detectives “throughout the course of that 42-minute interview,”
brought up “various” incidents in which they accused Feissa of lying or “being
disingenuous.”
The trial court reiterated that the defense could call witnesses and ask if Feissa had
lied and, if so, how he had lied. However, the trial court would not allow the defense “to
play a 40-minute tape for the purposes of being able to try and have the jury figure out
how in effect this guy lied.”
Later, the trial court stated again that defense counsel could “ask the investigator
any of those questions [relating to Feissa’s honesty].” The trial court added that if there
were “specific portions” of the tape that involved a statement by Feissa that was
“untruthful,” then it would allow counsel to play those portions of the tape. But, “the
entirety of the tape involves a number of subjects that aren’t relevant to the trial.” Thus,
under Evidence Code section 352, while the defense could “address any issues that
[were] prior inconsistent statements or [related to Feissa’s] bad character,” it could not
play the entire tape.
B. Analysis
“Under Evidence Code section 352, a trial court has ‘broad power to control the
presentation of proposed impeachment evidence “‘“to prevent criminal trials from
degenerating into nitpicking wars of attrition over collateral credibility issues.”
[Citation.]’” [Citation.]’ [Citation.]” (People v. Mendoza (2011) 52 Cal.4th 1056,
1089–1090; see also People v. Harris (2008) 43 Cal.4th 1269, 1291.) “‘“‘Within the
confines of the confrontation clause, the trial court retains wide latitude in restricting
cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal
relevance.’ [Citation.]” [Citations.]’ [Citation.]” (People v. Mendoza, supra, at p. 1090;
see also People v. Harris, supra, at p. 1292.) “A trial court’s exercise of discretion under
42
[Evidence Code] section 352 will be upheld on appeal unless the court abused its
discretion, that is, unless it exercised its discretion in an arbitrary, capricious, or patently
absurd manner.” (People v. Thomas (2012) 53 Cal.4th 771, 806.)
With these principles in mind, we conclude that the trial court did not abuse its
discretion in disallowing Gibbs from playing the entire 42-minute taped interview of
Feissa. The trial court apparently listened to the entire recording or read a transcript and
concluded that the 42-minute interview contained a number of issues that were not
relevant to appellants’ case or to Feissa’s credibility. Gibbs has not presented anything to
contradict the trial court’s conclusion.
Moreover, the trial court specifically allowed Gibbs to present portions of the
tape-recorded interview involving untruthful statements by Feissa, but counsel chose not
to do so. The trial court also allowed the defense to present witnesses to establish that
Feissa had been untruthful. Under these circumstances, although hearing Feissa’s
“manner of speaking” during the interview “might have assisted the jury in determining
credibility, the trial court acted well within its discretion in precluding the defense” from
playing the entire taped interview. (People v. Avila (2006) 38 Cal.4th 491, 592.)
Even if the trial court had erred, reversal is not required because any alleged error
was harmless. (People v. Boyette (2002) 29 Cal.4th 381, 428.) The application of
ordinary rules of evidence, such as Evidence Code section 352, does not generally
infringe on a defendant’s constitutional rights. (People v. Boyette, supra, at pp. 427–
428.) While the complete exclusion of defense evidence could rise to the level of a
constitutional violation, that is not what occurred here. And, the exclusion of evidence
on a minor or subsidiary point does not infringe on a defendant’s right to present a
defense. (People v. Boyette, at p. 428.)
And, a different result was not reasonably probable. Substantial evidence was
submitted to impeach Feissa’s credibility, including Detective Labbe’s conclusion that
Feissa was unreliable, the two detectives’ belief that Feissa had been untruthful on a
number of occasions, Feissa’s threat to testify falsely in Porter’s case, and Feissa’s
statement that he had testified falsely in trials. Although Gibbs contends that the jury’s
43
request for a readback of Feissa’s testimony indicates that it was struggling with that
testimony, such a conclusion is merely speculative and could just “as easily [have been]
reconciled with the jury’s conscientious performance of its civic duty.” (People v.
Houston (2005) 130 Cal.App.4th 279, 301.) It follows that any alleged error was
harmless and does not compel reversal.
IV. The trial court did not abuse its discretion in denying the motion for mistrial
Gibbs contends that the trial court erred when it denied his motion for a mistrial
after a detective testified that Feissa’s information led to a conviction in another murder
case.24
A. Relevant facts and proceedings
During the prosecution’s case-in-chief, Detective Valento testified that Feissa had
information on two murders that he was investigating: the murder of Quezada and the
murder of Llanos. Prior to the information from Feissa, the murder of Llanos was
unsolved.
During a sidebar discussion, Gibbs’s attorney argued that the information
regarding the Llanos murder was not relevant. The prosecutor argued that there had
already been a “great attack” on Feissa as being unreliable and that Feissa had been “paid
an absurd amount of money for being an informant.” Thus, she wanted to counteract the
defense effort with evidence that Feissa helped to solve “an additional homicide,”
resulting in convictions. The prosecutor believed that the evidence would show that
Feissa was reliable.
The prosecutor then stated that she did not intend to spend a “lot of time on that
murder” and could “streamline” the evidence by showing that Feissa’s information
“resulted in a conviction.” The prosecutor noted that Feissa did not even testify in the
other case, which established that other evidence corroborated Feissa’s information.
24 Again, Wallace attempts to join this argument. At the risk of sounding redundant,
his “reliance solely on [Gibbs’s] arguments and reasoning is insufficient to satisfy his
burden” of showing error and prejudice. (People v. Nero, supra, 181 Cal.App.4th at
p. 510, fn. 11.)
44
Wallace’s counsel then objected to the evidence, arguing that there were a “lot of
so-called reliable informants that have succeeded in obtaining convictions for the People,
who [have] later . . . been reversed.” He asserted that the proffered evidence did not
establish that Feissa was reliable. Gibbs’s attorney joined in the objection.
Pursuant to Evidence Code section 352, the trial court excluded evidence
regarding the conviction in the other case. While the evidence might be relevant in
rebuttal, it was not relevant in the prosecution’s case-in-chief.
During direct examination of Detective Valento, the prosecutor asked about the
arrest of the defendants in the Llanos case. He responded: “The driver, Marcellous
Prothro, was arrested on July 31, 2009. The shooter, alleged shooter at the time, now
convicted, was the passenger in that vehicle, which—.”
Gibbs’s attorney objected and moved to strike the answer. During a sidebar
discussion, Gibbs’s attorney asserted that what had happened was “just what the court
stated should not happen.” Counsel moved for a mistrial.
After hearing argument from the prosecutor, the trial court denied the motion.
Back in front of the jury, the trial court stated: “With regards to the last portion of the
answer that the witness gave as to whether or not a conviction occurred in some other
case, that’s stricken as being irrelevant to the issues in this case.”
Gibbs subsequently called Detective Duncan as a witness. He had interviewed
Feissa on March 3, 2009, while Feissa was in custody. Gibbs’s attorney attempted to
show that Detective Duncan believed that Feissa had been untruthful during that
interview. He was examined about an affidavit in another matter in which he stated that
he was unaware of any gang member confidential informants who provided “‘100 percent
truthful information.’” He conceded that an in-custody gang member informant had a
motive to lie or give false information.
During cross-examination by Khalill, Detective Duncan testified that Feissa had
denied being involved in the murder of Daveon Childs and denied being a drug trafficker
between California and Texas.
45
During cross-examination by the prosecutor, Detective Duncan stated that the
information Feissa provided in the Llanos murder had been corroborated. When she
asked if the case had resulted in a conviction, Detective Duncan replied affirmatively.
Defense counsel did not object.
During recross-examination, Khalill’s attorney asked: “You said that basically,
Mr. Feissa’s information about the Juan Llanos case led to a conviction, essentially?”
Detective Duncan replied, “I believe so, yes.” He then testified that Feissa did not testify
at that trial. He denied looking at Feissa as a suspect in the Llanos case, but said that
investigators “did things to make sure he wasn’t pawning that murder off on someone
else.”
The prosecutor then called Detective Valento as a rebuttal witness. After he
verified that Feissa had identified suspects in the Llanos case, he testified that other
witnesses corroborated Feissa’s identifications. The prosecutor then asked if the trial
resulted in a conviction, and Khalill’s attorney objected. The trial court overruled the
objection, but Detective Valento did not answer the question.
B. Analysis
“‘“A mistrial should be granted if the court is apprised of prejudice that it judges
incurable by admonition or instruction.”’” (People v. Dement (2011) 53 Cal.4th 1, 39;
see also People v. Collins (2010) 49 Cal.4th 175, 198.) “‘“Whether a particular incident
is incurably prejudicial is by its nature a speculative matter, and the trial court is vested
with considerable discretion in ruling on mistrial motions.”’” (People v. Dement, supra,
at pp. 39–40; see also People v. Collins, supra, at p. 198.) A mistrial motion should be
granted when a defendant’s “‘“chances of receiving a fair trial have been irreparably
damaged.”’” (Ibid.)
Here, the trial court did not abuse its discretion in determining that Detective
Valento’s volunteered statement did not result in incurable prejudice necessitating a new
46
trial.25 His comment about the conviction in the Llanos case was “brief and isolated.”
(People v. Dement, supra, 53 Cal.4th at p. 40.) The isolated reference was “easily cured
by striking the evidence and admonishing the jury to disregard it.” (People v. Leavel
(2012) 203 Cal.App.4th 823, 825.) We presume that the jury followed the trial court’s
admonishment, and Gibbs has not rebutted that presumption. (Ibid.) It follows that the
trial court acted well within its discretion in denying the motion for mistrial.26
V. The admission of Feissa’s testimony was not improper merely because he was an
informant
Appellants argue that their constitutional rights were violated by the admission of
Feissa’s testimony because he was an “inherently unreliable” informant. As Gibbs
acknowledges, the California Supreme Court has repeatedly rejected such claims. (See,
e.g., People v. Hovarter (2008) 44 Cal.4th 983, 997; People v. Jenkins (2000) 22 Cal.4th
900, 1007–1008; People v. Ramos (1997) 15 Cal.4th 1133, 1165.) We therefore deny
this contention. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Khalill takes it one step further—he claims that because Feissa’s testimony was
inherently unreliable, it did not constitute sufficient evidence. This argument fails as
well. When a claim of insufficient evidence is raised, the appellate court reviews the
entire record in the light most favorable to the judgment to determine whether there was
reasonable and credible evidence from which a trier of fact could find a defendant guilty
beyond a reasonable doubt. (People v. Lee (2011) 51 Cal.4th 620, 632.) In making this
25 Although Gibbs asserts that the prosecutor committed misconduct, the appellate
record does not support such a conclusion. The prosecutor did not attempt to elicit
inadmissible evidence in violation of a court order; and the record does not show that she
failed to control her witness. The prosecutor merely asked about the arrests of the
defendants in the Llanos case, and the detective nonresponsively mentioned the
conviction. Thus, there was no prosecutorial misconduct. (People v. Collins, supra, 49
Cal.4th at pp. 196–199.)
26 And, we acknowledge that Detective Duncan subsequently testified, without
objection, that the Llanos case resulted in a conviction, a point reiterated during cross-
examination by Khalill.
47
determination, the reviewing court presumes in support of the judgment the existence of
every fact the jury could reasonably deduce from the evidence. (Ibid.) “‘[E]ven
testimony which is subject to justifiable suspicion do[es] not justify the reversal of a
judgment, for it is the exclusive province of the . . . jury to determine the credibility of a
witness.’” (Ibid.) In other words, we do not resolve issues of credibility. (Ibid.)
Here, the jury heard a variety of factors affecting Feissa’s credibility and
determined his testimony to be credible. We cannot, and will not, reassess his credibility.
VI. Alleged prosecutorial misconduct
Khalill contends that the prosecutor committed misconduct by using a puzzle
analogy during closing argument.27
A. Relevant facts
Both before and after the presentation of evidence, the trial court instructed the
jury with CALCRIM No. 220, which states that a criminal defendant is “presumed to be
innocent” and that the prosecution has the burden of proving each defendant guilty
“beyond a reasonable doubt.” The instruction explains that “[p]roof beyond a reasonable
doubt is proof that leaves you with an abiding conviction that the charge is true. The
evidence need not eliminate all possible doubt because everything in life is open to some
possible or imaginary doubt.” The instruction further cautions that “[u]nless the evidence
proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal
and you must find them not guilty.”
The trial court also instructed the jury with CALCRIM No. 200, which provides:
“You must follow the law as I explain it to you, even if you disagree with it. If you
believe that the attorneys’ comments on the law conflict with my instructions, you must
follow my instructions.”
The trial court further instructed the jury with CALCRIM No. 222: “Nothing that
the attorneys say is evidence. In their opening statements and closing arguments, the
attorneys discuss the case, but their remarks are not evidence.”
27 Gibbs joins in this argument.
48
During the closing argument, the prosecutor stated: “Ladies and gentlemen, jury
trials, and the evidence is sort of like a puzzle. We give you all the pieces . . . through
witnesses, through exhibits. And your job as a juror is to put them together and
determine if you can see the picture on the front of the box. [¶] So because jury trials are
a combination of human beings and not a science project or [a] math problem, it’s not
like buying a new Jigsaw puzzle, where all the pieces are there. [¶] It’s like buying a
Jigsaw puzzle at a garage sale, where you get it home, and maybe some of the pieces are
missing. Or a dog chewed on one piece, so it doesn’t fit anywhere, or there’s marinara
sauce on another piece. [¶] But at the end of the day, even though that Jigsaw puzzle
isn’t brand new, the question is, can you see the picture on the front of the box. Is it a hot
air balloon with kittens in it, or whatever it may be.”
The prosecutor then discussed the evidence in the case and the law, and applied
the evidence to the law.
She concluded with the following: “And that at the end of the day, when you add
up all the pieces, when you put that Jigsaw puzzle together, and you add everything up in
totality and look at it in its whole, it is clear to you that those defendants are guilty as
charged, and responsible for the murders that they are charged with.”
B. Forfeiture
A prosecutor’s conduct violates the federal Constitution if his actions so infect the
trial with unfairness that it results in a denial of due process. (People v. Whalen (2013)
56 Cal.4th 1, 52; People v. Thompson (2010) 49 Cal.4th 79, 120.) If the conduct is below
this level, it violates California law if it involves the use of “deceptive or reprehensible
methods” to persuade the jury. (People v. Whalen, supra, at p. 52; People v. Thompson,
supra, at p. 120.)
To preserve a claim of prosecutorial misconduct, a defendant must make a timely
objection to the alleged misconduct and ask the trial court to admonish the jury, unless an
admonishment would not have cured the harm. (People v. Whalen, supra, 56 Cal.4th at
p. 52; People v. Thompson, supra, 49 Cal.4th at pp. 120–121.)
49
Here, as Khalill concedes, there was no objection to the prosecutor’s allegedly
improper statements. Thus, he has forfeited on appeal any claim of misconduct. (People
v. Houston (2012) 54 Cal.4th 1186, 1223.)
C. Even if appellants had not forfeited this argument on appeal, it still fails
because the prosecutor’s comments were not improper
Even if this argument had not been forfeited on appeal, it still fails. It is
misconduct for a prosecutor to misstate the law and to absolve the prosecution from its
duty to prove its case beyond a reasonable doubt. (People v. Boyette, supra, 29 Cal.4th at
p. 435; People v. Marshall (1996) 13 Cal.4th 799, 831.) Khalill contends that, under
People v. Katzenberger (2009) 178 Cal.App.4th 1260 (Katzenberger) and People v.
Otero (2012) 210 Cal.App.4th 865 (Otero), the prosecutor misstated the reasonable doubt
standard by using a puzzle analogy. We are not convinced. In both of those cases, the
prosecutor used a Power Point presentation as a visual aid to explain reasonable doubt.
(Katzenberger, supra, at p. 1264; Otero, supra, at p. 873.) That is a far cry from the
simple jigsaw puzzle analogy employed by the prosecutor here. And, unlike the
prosecutor in Katzenberger and Otero, she certainly did not suggest that the reasonable
doubt standard could be based upon a few pieces of evidence or by a quantitative
measurement of evidence. (Katzenberger, at p. 1264; Otero, at p. 873.)
Even if the prosecutor committed misconduct, reversal would not be required
because any misconduct was harmless. (Katzenberger, supra, 178 Cal.App.4th at
p. 1269.) As set forth above, the evidence against appellants was strong. And, the jury
was instructed on the reasonable doubt standard and was told that it must follow the trial
court’s instructions, including if the attorneys’ comments on the law conflicted with the
trial court’s instructions. We presume the jury followed the trial court’s instructions.
(People v. Anzalone (2013) 56 Cal.4th 545, 557.)
VII. The trial court properly discharged Juror No. 6
Khalill contends that the trial court improperly discharged Juror No. 6. Khalill
and Wallace forfeited this claim. Even on the merits, this claim must be rejected because
the trial court properly discharged Juror No. 6; she had a scheduled vacation.
50
A. Relevant facts and proceedings
During the middle of trial, on Friday, December 16, 2011, the trial court received a
note from Juror No. 6, which indicated that the juror had “travel plans,” namely to depart
for Connecticut on December 18, 2011. The juror stated that she had not mentioned the
travel plans during the “‘hardship segment’” of jury selection because the flight had not
been booked at that time. The juror booked the flight after learning that the trial “would
go through December 16th” and that the court calendar indicated that it would be
“‘dark’” after that. The juror purchased a “‘low cost ticket’” on November 30, 2011, and
stated that it would cost her at least $100 to change her ticket or purchase a new one.
When the trial court asked the parties how they wanted to address the issue of
Juror No. 6’s vacation plans, Gibbs’s and Khalill’s counsel responded that they did not
know.
The trial court deferred the issue until later in the day, when it became clearer
whether they were going to be able to close evidence that day.
In the presence of the jury, the trial court told Juror No. 6 that it had received her
note and intended to address it later that day. The trial court then informed the jury that
the “best-case scenario” was that the evidence portion of the case would conclude that
day, but that the “worst-case scenario” was that the evidence presentation would end on
Monday. It asked the jurors to assume the “worst-case scenario” and wanted to know
whether any jurors had a scheduling conflict.
Juror No. 4 stated that he was planning to go on a family vacation from
December 21, 2011, through December 30, 2011. But, he had made “back-up plans” and
could meet his family later.
In the afternoon of December 16, 2011, the trial court held an additional
proceeding regarding Juror No. 6. During a sidebar discussion, Juror No. 6 stated that
she had checked into flights for “late Wednesday [December 21, 2011] evening” and
Thursday (December 22, 2011); both flights would cost her additional monies. When
asked about whether it was possible to take the Thursday flight, Juror No. 6 stated that it
51
was “a lot of money” that she would prefer not to spend. However, if the trial court
wanted her to book the Thursday flight, she would comply.
The trial court asked Juror No. 6 to “stick it out,” especially since the trial had
lasted “almost three weeks.” She replied that she would, since she wanted “to see it to
the outcome.” The attorneys did not have any questions for her.
The trial court decided to keep the juror because she was “still willing to serve.”
No one objected.
After jury instructions on Monday, December 19, 2011, the trial court asked Juror
No. 6 if she was able to reschedule her flight. She said that she had obtained a ticket for a
flight on Thursday morning at 1:00 a.m. Juror No. 4 stated that his flight was the same
day as Juror No. 6’s flight and would be able to return whenever he needed to do so.
The trial court told the jurors to “meet and confer” and “[g]o over scheduling”
because it did not want the jury to “feel rushed to reach a verdict.” It instructed the jury
that it wanted it to “carefully consider the evidence.” It stated that if the jury had not
reached a verdict by Wednesday evening, it needed to know what day the jury would be
able to return and continue deliberations. The trial court was willing to consider having
the jury return after the New Year’s Day, rather than the week between Christmas and
New Year’s Day. The trial court added: “I don’t want you to feel like you’ve got a
deadline, and you’ve got to rush to meet that deadline. Okay?”
Wallace’s attorney requested that the two jurors be replaced with alternate jurors
or that closing argument not be done until January 2012. Gibbs’s attorney joined in the
argument. The trial court denied their request.
The trial court then stated that the jury might be able to reach a verdict before
breaking for the holidays. It noted that it would not “penalize the jurors by not allowing
them to spend time with their family members during the holidays.” It then stated that it
could authorize a “short break” and that the jury could return to deliberate “the week after
Christmas.”
52
Wallace’s attorney then stated that there were two alternate jurors and two jurors
that had scheduled vacations. He requested that the trial court “substitute the alternates
in, have them continue to deliberate.” Again the trial court denied Wallace’s request.
On Tuesday, December 20, 2011, the trial court stated that it had researched the
issue regarding the possible continuation of jury deliberations and, pursuant to People v.
Santamaria (1991) 229 Cal.App.3d 269 (Santamaria), concluded that it could not put the
matter over until after the first of the year.
Wallace’s attorney then stated that he was “not too thrilled about the alternates”
available. But, he added: “No other choice but to sub them in if we release two jurors.
And we go with those twelve, and hope that they survive.” Khalill’s attorney agreed,
stating: “I don’t like any of the choices, really.” Gibbs’s attorney agreed with Wallace’s
counsel.
The trial court decided to clarify the vacation schedules of Juror Nos. 4 and 6.
During a sidebar discussion, Juror No. 6 said that she would return on December 29,
2011. Juror No. 4 stated that he was scheduled to leave on Thursday (December 22,
2011) and would return at any time from his trip. When asked if he would be able to
leave later in the week, Juror No. 4 replied that he wanted to leave by “Friday morning”
(December 23, 2011) at the latest.
After closing argument, the trial court indicated that it was considering releasing
Juror No. 6 because if the jury did not “reach a verdict by the close of business tomorrow
[Wednesday],” then the jury would have to begin deliberations anew, which would be a
“horrible waste of time.” The trial court believed that it was “incredibly unlikely” that
the jury would reach a verdict by the next day due to the “extent of the testimony in the
case and the number of exhibits.” It asked if there was a request that Juror No. 6 be
replaced with an alternate juror.
Gibbs’s attorney stated that he had no such request because he believed that it was
possible for the jury to reach a verdict on the 2008 murder by the next day. Thus, he
wanted Juror No. 6 to remain.
53
Wallace’s attorney requested that Juror No. 6 be replaced with an alternate
because he believed the possibility of the jury reaching a verdict by the next day was
“slim,” he did not want there to be a “waste,” and he did not want to cause “more
problems with the jurors to start all over.”
Khalill’s attorney indicated that he was “not making a request.” When asked if he
was opposed to replacing Juror No. 6, he replied that he was “ambivalent.”
The trial court found that there was “a manifest need to release Juror Number 6”
due to “the scheduling conflict she alerted us to a long time ago.” It had expected a
consent to a recess during the holidays. Since it could not force the parties to agree to a
recess, the trial court believed that it would constitute reversible error to recess the case
for such a length of time. Thus, it decided to replace Juror No. 6 with an alternate.
Gibbs’s attorney objected.
The trial court then excused Juror No. 6, and she was replaced with an alternate.
On December 22, 2011, the jury reached verdicts.
B. Forfeiture
A defendant may properly raise an argument regarding the allegedly improper
discharge of a juror only if he raised the issue in the trial court. (People v. Lucas (1995)
12 Cal.4th 415, 488.) “‘The requirement of a contemporaneous and specific objection
promotes the fair and correct resolution of a claim of error both at trial and on appeal, and
thereby furthers the interests of reliability and finality.’” (Id. at pp. 488–489.)
On two occasions, Wallace specifically requested that Juror No. 6 be replaced with
an alternate. Because Wallace supported the trial court’s decision to discharge Juror No.
6 and replace her with an alternate, he has forfeited any claim that the trial court erred in
discharging that juror. (People v. Lucas, supra, 12 Cal.4th at pp. 488–489.)
Khalill also forfeited any claim regarding the allegedly erroneous discharge of
Juror No. 6. In response to the trial court’s question regarding whether there was a
request that Juror No. 6 be replaced with an alternate, Khalill’s attorney initially stated
that he was “not making a request.” The trial court attempted to clarify Khalill’s position
by asking defense counsel if he was opposed to replacing Juror No. 6 with an alternate.
54
Khalill’s attorney replied that he was “ambivalent” about replacing the juror. Because he
did not specifically object to the discharge of Juror No. 6, he has forfeited any contention
that the trial court erred in doing so. (People v. Lucas, supra, 12 Cal.4th at pp. 488–489.)
C. The trial court properly discharged Juror No. 6
Even on the merits, the claim fails. “A juror may be discharged if, at any time
before or after final submission of the case, the court upon good cause finds the juror
‘unable to perform his or her duty.’” (People v. Virgil (2011) 51 Cal.4th 1210, 1242; see
also § 1089; People v. Zamudio (2008) 43 Cal.4th 327, 349.) A trial court’s decision to
discharge a juror is upheld if there is substantial evidence to support the trial court’s
ruling and the juror’s inability to perform appears on the record as a demonstrable reality.
(People v. Virgil, supra, at p. 1242; People v. Zamudio, supra, at p. 349.)
With these principles in mind, we conclude that the trial court did not err in
discharging Juror No. 6. The record establishes that she had airline tickets for a flight at
1:00 a.m. on Thursday, December 22, 2011, which meant the last day that she was
available to deliberate was Wednesday, December 21, 2011. As the trial court reasonably
noted, the jurors would not begin to deliberate until December 20, 2011, and, due to the
amount of evidence that had been presented and the nature of the charges, it was highly
unlikely that the jurors would be able to reach verdicts before Juror No. 6’s scheduled
flight. Because the record amply supports the trial court’s conclusion that Juror No. 6
would not be able to perform her duties as a juror, the discharge of Juror No. 6 was not
erroneous.28
Khalill argues that the trial court treated Juror No. 6 in a “disparate manner” from
Juror No. 4, who was “almost identically situated.” However, they were not in the same
position—Juror No. 4 indicated that he could leave for his vacation as late as Friday
morning, which meant that he was available for deliberations through December 22,
28 For the first time on appeal, Khalill argues that the trial court’s discharge of Juror
No. 6 violated the Jury Management Benchbook. This is not legal authority. Regardless,
this belated contention is forfeited. (People v. Lucas, supra, 12 Cal.4th at pp. 488–489.)
Regardless, Juror No. 6 was physically unable to serve as a juror.
55
2011. Because Juror No. 4 was available for a longer period, the trial court could
reasonably have concluded that it was possible for the jurors to reach verdicts by that
point.
Khalill also contends that the trial court could have suspended the proceedings to
allow the jurors to enjoy the holidays. In People v. Bolden (2002) 29 Cal.4th 515, 561–
562, the California Supreme Court held that the trial court in that case did not abuse its
discretion in suspending deliberations for four court days during the winter holidays.
However, in that case, the defense did not object to the suspension of deliberations. (Id.
at p. 561; see also People v. Johnson (1993) 19 Cal.App.4th 778, 790–793.) Here,
Wallace requested that Juror Nos. 4 and 6 be replaced with alternates rather than breaking
for the holidays. Under such circumstances, People v. Bolden does not dictate that the
trial court was required to suspend deliberations rather than discharge Juror No. 6.
Finally, Khalill contends that the trial court improperly relied on Santamaria,
supra, 229 Cal.App.3d 269 in determining that a suspension for the holidays was
inappropriate. As the trial court noted, Santamaria was not directly on point because it
involved a suspension of proceedings due to the trial court’s planned absence.
(Santamaria, supra, at p. 278.) But, it was reasonable for the trial court to rely on the
case because, like Wallace here, at least one of the parties in Santamaria indicated
opposition to the suspension of proceedings. (Ibid.)
VIII. No cumulative prejudice
Appellants contend that the foregoing alleged errors resulted in cumulative
prejudice. In light of our conclusion that none of the asserted claims of error is
meritorious, there was no cumulative prejudice. (People v. Homick (2012) 55 Cal.4th
816, 869.)
56
IX. Wallace’s motion to discharge his retained attorney was untimely
Wallace argues that the trial court erred in denying his request to discharge his
retained counsel.
A. Relevant facts and proceedings
On April 13, 2012, almost four months after appellants were convicted by the jury,
the trial court received a letter from Wallace stating that he would be filing a motion for a
new trial on the grounds of ineffective assistance of counsel. Wallace delineated nine
instances of alleged ineffectiveness. He requested that another attorney be appointed to
investigate and file a motion for new trial.
On June 20, 2012, Wallace’s attorney filed a notice of motion to declare conflict
of interest by counsel.
In response to the motions, the trial court stated that it would ascertain whether
Wallace’s attorney would declare a conflict and whether it was satisfied that there was a
sufficient showing to grant withdrawal “at this point in the proceedings, given the fact
that this is a post-trial motion.”
After Wallace’s attorney stated that he was declaring a conflict, the trial court held
an in camera proceeding. During the proceeding, the trial court stated that it had
“concerns about the timing of the declaration of a conflict . . . given the fact that it’s
occurred after a very long and protracted trial.”
Wallace’s attorney agreed that such a motion was “unusual at this stage of the
proceedings.” He confirmed that there had been a breakdown in communication between
them, and he believed that he could not continue in the case. In addition, counsel
represented that there was a difference of opinion regarding tactical issues and motions.
And, the attorney was retained counsel; because the family was not willing to continue to
pay for his services, he could not continue to represent Wallace. But, in response to the
trial court’s query, counsel did state, in spite of the alleged conflict, that he could
represent Wallace’s best interests.
When asked whether he had contacted another attorney, Wallace indicated that he
was still looking for the right one—“[m]aybe a few weeks” or “[m]aybe less.”
57
After the in camera hearing, the trial court asked the prosecutor what the potential
impact would be if Wallace’s counsel was permitted to withdraw and new counsel was
appointed or retained. She stated that there were “at least six boxes” and several
notebooks that were approximately four inches thick that contained discovery.
Moreover, there was a wiretap that lasted more than a year and that collected “thousands
and thousands of calls.” Thus, she believed it would be “quite a cumbersome task” for a
new attorney to “get up to speed on this case.” She estimated that it would take at least
six months to a year for another attorney to be adequately prepared. Wallace’s attorney
agreed that a minimum of six months would be needed for a new attorney to be
adequately prepared.
Thereafter, the trial court denied the motions, noting that it had taken time to
research the issue because the case was “very serious” and Wallace’s right to counsel was
“significant”; it did not want to “just have a knee-jerk reaction to the motion.” After
conducting legal research, the trial court concluded that it had the discretion to deny an
untimely motion. It also found no conflict of interest based upon Wallace’s failure to
communicate with counsel and the family’s refusal to pay. Because (1) counsel was
“capable of continuing in the case and competently representing” Wallace;
(2) terminating counsel at this late stage of the proceedings would cause “tremendous
prejudice to the orderly administration of justice”; (3) it would take a competent attorney
“close to a year” to prepare for the proceedings that remained in the case; and (4) the
“timing of the request for termination of the attorney” had been “dilatory,” the trial court
denied Wallace’s motion to discharge counsel and counsel’s motion regarding the alleged
conflict.
B. Analysis
“The right to retained counsel of choice is—subject to certain limitations—
guaranteed under the Sixth Amendment to the federal Constitution.” (People v. Verdugo
(2010) 50 Cal.4th 263, 310.) However, the right to discharge retained counsel is not
absolute. (Id. at p. 311.) A trial court has the discretion to deny a motion to discharge
retained counsel if the discharge will result in “‘“significant prejudice”’” to the defendant
58
or if the motion is untimely in that it would disrupt “‘“the orderly processes of justice.”’”
(Ibid.)
Here, the trial court did not abuse its discretion in denying Wallace’s motion as
untimely. He filed his letter nearly four months after he was convicted by the jury. By
that point, Wallace’s attorney had already filed a motion for new trial and a motion to
unseal the jurors’ contact information.
Moreover, as the trial court noted, there was a voluminous amount of information
that a newly appointed or retained attorney would need to review in order to determine
what motions to file or what steps to take.29 Although Wallace contends that all of the
information would not necessarily need to be reviewed and that the trial record could be
reviewed in about a week and a half, based on the six-month to one year estimates
provided by the prosecutor and Wallace’s trial counsel, the trial court reasonably
concluded that a new attorney would need substantial time to become appropriately
familiar with the case; the six months to a year required would have significantly
disrupted the orderly process of justice. (People v. Verdugo, supra, 50 Cal.4th at p. 311.)
This conclusion is particularly true given the fact that Wallace had not even hired a new
attorney at the time of the hearing and estimated that it would take several weeks to do
so.
Wallace claims that any disruption to the proceedings could have been “mitigated”
or “eliminated” if the trial court had held a hearing on his motion when he filed his letter.
But, given the amount of time that it would have taken a new attorney to become familiar
with the case (compounded by the fact that he still had not yet hired a new attorney), the
delay in holding the hearing does not establish that the trial court abused its discretion in
determining that granting Wallace’s request would have resulted in a significant
disruption of the proceedings.
29 Wallace contends that all of the wiretap evidence would not need to be reviewed
because “a new attorney could simply ask his client about the relevant facts.” But that
assumes that Wallace would be aware of all of the relevant facts and that counsel would
be competent in merely accepting his client’s assessment of the relevant facts.
59
Wallace’s reliance upon People v. Munoz (2006) 138 Cal.App.4th 860 and People
v. Ortiz (1990) 51 Cal.3d 975, 987 is misplaced. In both of those cases, the trial courts
erroneously required the defendants to establish, under People v. Marsden (1970) 2
Cal.3d 118 (Marsden) that the attorney was providing inadequate representation or that
the defendants and their attorneys were involved in an irreconcilable conflict. (People v.
Ortiz, supra, at pp. 979–980, 987; People v. Munoz, supra, at pp. 864–866.) In contrast,
the trial court here understood that Wallace was not required to make the showing
specified in Marsden. Moreover, the Ortiz court found that the defendant’s motion was
timely because it was made “after the mistrial and well before any second trial” (People
v. Ortiz, at p. 987); and the Munoz court found that the motion was timely because the
trial had only lasted two days, the case was not complicated, and it was unlikely a new
attorney would need a significant amount of time to become familiar with the case
(People v. Munoz, at pp. 868, 870). Contrariwise, this case involved two murders and an
attempted murder and there was a voluminous amount of information that a new attorney
would have to review in order to become familiar with the case and make tactical
decisions.
X. Wallace’s claim regarding the lack of a Marsden-like hearing
Wallace contends that the trial court erred when it failed to hold a Marsden-like
hearing on his motion to discharge his retained attorney because it was based on the
alleged ineffectiveness of that attorney.
Preliminarily, we hold that Wallace forfeited this claim on appeal. He never
objected when the trial court declined to hold a Marsden-like hearing, never requested
such a hearing, and acquiesced in the procedure adopted by the trial court. (People v.
Braxton (2004) 34 Cal.4th 798, 813–814; People v. Jones (2012) 210 Cal.App.4th 355,
361–362.)
Even on the merits, the claim fails. The California Supreme Court has held that,
when counsel is retained, it is inappropriate to hold a Marsden-type hearing. (People v.
Ortiz, supra, 51 Cal.3d at p. 984.) Thus, the trial court did not err in failing to hold such
a hearing. (People v. Hernandez (2006) 139 Cal.App.4th 101, 108–109.) And, as
60
Wallace concedes, there is no legal authority to support his contention that a Marsden-
type hearing should be required in situations in which a defendant makes an untimely
motion to discharge his retained counsel and bases his motion on the alleged
ineffectiveness of his attorney.
In support of his claim, Wallace directs us to People v. Frierson (1979) 25 Cal.3d
142 and People v. Smith (1993) 6 Cal.4th 684. These cases do not aid Wallace as neither
involves the question of whether Marsden-like hearings are required for untimely
motions to discharge retained counsel.
To the extent Wallace contends that the right to the effective assistance of counsel
cannot be adequately protected if a Marsden-like hearing is not mandatory, he could have
raised that argument on appeal had he argued ineffective assistance of counsel (which he
did not); or, he can make this assertion in a habeas petition.
XI. The trial court properly sentenced Wallace to two terms of life without the possibility
of parole
Wallace contends that he could only receive one sentence of life without the
possibility of parole because the multiple murder special circumstance could only apply
to one of the murders he committed.
The California Supreme Court has held that when the prosecution alleges more
than one multiple murder special circumstance, and the jury in a capital case finds more
than one of those circumstances to be true, all but one of the findings should be stricken.
(People v. Danks (2004) 32 Cal.4th 269, 315.) Here, the prosecutor did not charge more
than one multiple murder special circumstance, and the jury made only one multiple
special circumstance finding. Thus, no finding on a multiple murder special
circumstance needs to be stricken.
Moreover, it was proper for the trial court to impose sentences of life without the
possibility of parole for counts one and two. Although the multiple murder special
circumstance can be alleged and found true only once in a case, it may be used to impose
multiple sentences of life without parole in a single proceeding. (People v. DeSimone
61
(1998) 62 Cal.App.4th 693, 701; People v. Garnica (1994) 29 Cal.App.4th 1558, 1563–
1564.)
XII. The trial court properly imposed 10-year gang enhancements on counts one and
two, but improperly imposed it on count three
Wallace contends that the trial court erred in imposing 10-year gang enhancements
on counts one through three instead of sentencing him to a 15-year minimum parole
eligibility on those counts. The People concede that he is correct and that the trial court
should have imposed the 15-year minimum parole eligibility on count three (attempted
murder) only.
Under section 186.22, subdivision (b)(1)(C), a prison term of 10 years “shall” be
imposed on a defendant convicted of committing a gang-related felony. However,
section 186.22, subdivision (b)(5), provides that “any person who violates this
subdivision in the commission of a felony punishable by imprisonment in the state prison
for life, shall not be paroled until a minimum of 15 calendar years have been served.”
Courts have held that “[w]here, as here, a defendant is sentenced to an
indeterminate life term for attempted murder, the 15-year parole eligibility provision of
section 186.22, subdivision (b)(5) applies rather than the 10-year gang enhancement.
[Citation.]” (People v. Arauz (2012) 210 Cal.App.4th 1394, 1404–1405; see also People
v. Campos (2011) 196 Cal.App.4th 438, 447.) Thus, Wallace and Khalill should have
received the 15-year minimum parole eligibility term for count three (attempted murder).
As such, the 10-year sentence enhancement imposed against Wallace and Khalill for
count three is stricken and the trial court is instructed to replace it with the 15-year
minimum parole eligibility term. (People v. Arauz, supra, at pp. 1404–1405; People v.
Campos, supra, at p. 447.) Gibbs too is entitled to the 15-year minimum term for his
sentence on count one, since he received a sentence of 25 years to life. (People v. Lopez
(2005) 34 Cal.4th 1002, 1004, 1007–1011.)
However, Wallace and Khalill are not entitled to the 15-year minimum parole
eligibility term for counts one and two. The California Supreme Court has suggested in
dicta that the minimum parole eligibility provision was never intended to apply to
62
defendants sentenced to life without the possibility of parole. (People v. Lopez, supra, 34
Cal.4th at p. 1010; People v. Montes (2003) 31 Cal.4th 350, 358, fn. 10.) And, unlike the
defendant in People v. Lopez, supra, 34 Cal.4th at pages 1004 through 1005, who was
sentenced to a term of 25 years to life for first degree murder, Wallace and Khalill were
sentenced to life without parole in counts one and two. It makes no sense, and would
serve no purpose, to include minimum parole eligibility dates on such terms.
XIII. Appellants are jointly and severally liable for victim restitution in count one;
Wallace and Khalill are jointly and severally liable for victim restitution in count two
Wallace contends that all appellants should be jointly and severally liable for
victim restitution in count one and that he and Khalill should be jointly and severally
liable for victim restitution in count two. The People agree that he is correct. To avoid
“unjust enrichment” to the Victim Compensation and Government Claims Board, the
abstract of judgment must be corrected to reflect that all three appellants are jointly and
severally liable for the $7,500 owed on count one, and that Khalill and Wallace are
jointly and severally liable for the remaining $7,747 owed on count two. (People v.
Blackburn (1999) 72 Cal.App.4th 1520, 1535; People v. Neely (2009) 176 Cal.App.4th
787, 800; People v. Madrana (1997) 55 Cal.App.4th 1044, 1049–1052.)
63
DISPOSITION
The judgments are affirmed as modified. The matter is remanded to the trial court
with directions to strike the 10-year sentence on count three (Wallace and Khalill) from
the abstracts of judgment and replace it with the 15-year minimum parole eligibility term.
The abstract of judgment against Gibbs must also be amended to allow for a 15-year
minimum parole eligibility term. The abstracts of judgment must also be modified to
reflect appellants’ joint and several liability on count one, and Khalill and Wallace’s joint
and several liability on count two. In all other respects, the judgments are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_____________________________, J.
ASHMANN-GERST
We concur:
______________________________, P. J.
BOREN
______________________________, J.
CHAVEZ
64