People v. Romain CA2/5 ( 2023 )

Filed 7/17/23 P. v. Romain CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
THE PEOPLE, B301447
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA257828)
PIERRE ALPHONSE ROMAIN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Larry Fidler, Judge. Affirmed.
Law Offices of E. Thomas Dunn, Jr. and Edward Thomas
Dunn, Jr. for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill and Paul M.
Roadarmel, Jr., Supervising Deputy Attorneys General, for
Plaintiff and Respondent.
Jade Clark (Clark) was killed in 1987 when he was the
victim of an attempted carjacking that resulted in a gunfight.
Defendant and appellant Pierre Romain (defendant) was arrested
and charged with murder shortly after the crime, but the charge
was dismissed and the case went cold for many years. Later
advances in DNA analysis, however, provided evidence that was
not available at the time of the murder: defendant’s DNA found
on clothing fibers and a speck of human tissue that were stuck to
an expended bullet recovered at the crime scene. Defendant was
again charged with murdering Clark and a trial jury found him
guilty. In this appeal from the conviction, we are asked to decide,
in the main, whether various evidentiary rulings by the trial
court were correct and whether defendant’s trial attorney was
constitutionally ineffective.
I
A
In the very early morning hours of June 29, 1987, Clark
and an acquaintance Clifford Phillips (Phillips) were driving
around Los Angeles “hang[ing] out.” Clark was the driver, and
he was driving his customized convertible Nissan 300ZX that
Phillips described as a “flashy car.” Clark was wearing a red
sweatshirt.
Around 2:00 a.m. that morning, Clark and Phillips arrived
outside a nightclub called the Danceteria on Highland Avenue.
They parked across the street and did not go inside; according to
Phillips, they were waiting in the car to meet friends and “girls.”
As Clark and Phillips waited in the car, a man opened the
door on Clark’s side of the car, pointed a gun at Clark, and
repeatedly told Clark to “get the fuck out.” Phillips could not see
2
the face of the man accosting Clark, but he did see Clark pull a
gun of his own, which Clark pointed at his assailant and held
“low” close to the floor of the car. Clark’s attacker began to use
his free arm (i.e., the one not holding the gun) to try to pull Clark
out of the car, and a tug-of-war ensued with Clark trying to stay
in the car and the assailant trying to pull Clark out.
Meanwhile, another man (later identified as Duane Dixon)
opened the passenger-side door of Clark’s 300ZX and pulled
Phillips out of the car onto the sidewalk. From that vantage
point, Phillips was looking in the direction of Clark’s assailant
but he did not get a good enough look at the assailant’s face to be
able to make an identification. Phillips was eventually able to
escape Dixon’s hold on him and ran from the scene. While
running, Phillips heard multiple gunshots.
A bystander present at the scene, Darryl Jones (Jones), saw
the commotion at Clark’s car and heard the gunshots.1 Jones was
leaving the Danceteria just after two in the morning and
observed a “scuffle” going on outside a car (Clark’s car). A man
standing outside the driver’s side of the car was “pushing and
pulling” with a man (Clark) partially inside and outside of the
car. As the scuffle continued, Jones heard two gunshots, and
then after a very slight delay when the man standing outside the
car took a step back, four or five more gunshots. Jones believed
1
Jones also observed an earlier fight on the street outside
the Danceteria while waiting to get in the club. The prosecution
would later argue at defendant’s trial that blood droplets found
on the sidewalk after Clark’s murder were attributable to this
earlier fight and not, as the defense would contend, left behind by
Clark’s killer.
3
this second set of gunshots came from a “revolver-type weapon”
because of pauses between the shots. After the shooting, the man
that had been scuffling with Clark ran from the car along with
another man (Dixon) that had been outside the passenger side of
the vehicle. They ran toward a nearby gas station at the corner
of Highland Avenue and Willoughby Avenue.
When travelling on Willoughby Avenue, the next street
over from Highland Avenue is Citrus Avenue. James Ryan
(Ryan) lived in an apartment on Citrus Avenue just around the
corner from the Danceteria. At about 2:00 a.m. on June 29, 1987,
Ryan had just finished the night shift at work (he was a
journalist) and heard several gunshots—five by his estimate. He
went to his second-floor window overlooking Citrus Avenue and
saw two men, one of whom was carrying a handgun that
appeared to be a revolver, running down the street toward him;
the man with the gun was wearing a navy blue jacket or
sweatshirt. The men were running toward a car stopped on
Citrus Avenue that Ryan described as a white, “sporty looking
coupe-type car” that he thought might be a Ford Mustang. Both
men got in the passenger-side door of that car and the car sped
off, leaving skid marks on the street.
Once the shooting outside the Danceteria stopped and
Clark’s shooter and Dixon fled, Phillips, Jones, and other
bystanders congregated around Clark’s car. Clark had multiple
bullet wounds and he was “sprawled out over the centerpiece of
the car,” shaking. Phillips reclined Clark’s seat to try to make
him more comfortable until the paramedics arrived and
transported him to the hospital. A subsequent autopsy
determined Clark sustained four gunshot wounds (plus several
fragment wounds) that caused his death. Several of the bullets
4
that struck Clark were found in his body during the autopsy, and
later analysis of the bullets revealed they were fired from a single
weapon, which was either a .38 or .357 caliber gun.
B
1
Police officers and forensic personnel responded to the
scene of Clark’s killing and began investigating. Los Angeles
Police Department (LAPD) Detective Rick Jackson was one of two
detectives primarily assigned to the investigation.
In processing the crime scene, investigators recovered
Clark’s firearm: a .25 caliber semiautomatic pistol that was
legally registered to him. Investigators also found an expended
bullet, which later analysis would reveal was fired from Clark’s
gun, near one of the rear tires of Clark’s car. Stuck to the bullet
were some blue clothing fibers and what appeared to be a speck
of human tissue.2
Investigators also examined Clark’s car for fingerprints,
and a print was found on the outside of the passenger-side
window. Comparison of that fingerprint and Dixon’s fingerprints
were a match.
Also documented at the crime scene were blood spots on the
sidewalk abutting the passenger side of Clark’s parked car. The
blood spots hit the ground at a near 90-degree angle such that
2
A very small amount of blood was also found on the
bullet—too small to even permit a determination of whether the
blood was type A, B, or O. DNA analysis of the bullet and
materials adhering to it was not possible at the time of the crime
in 1987.
5
they did not appear to have come from someone who was running
or moving quickly at the time. Forensic personnel collected
samples of the blood, and later analysis determined the blood
type of these samples was not defendant’s blood type.
In processing the crime scene, investigators also
photographed the skid marks on Citrus Avenue made by the
white car that Ryan saw speeding off with the armed man in blue
and Dixon just after the shooting.
2
Investigation of Clark’s murder continued after processing
of the crime scene was complete, and the investigation ultimately
led to defendant’s arrest for Clark’s murder.
LAPD detectives showed bystander Jones a six-pack
photospread about a month after the shooting to see if he could
identify Clark’s shooter. Defendant was in position “3” on the
photospread, and Jones said he was 85 percent certain the man
in position 3 was the person he saw scuffling with Clark. Jones
also stated, however, he was 80 percent confident that another
man in position 2 on the photospread was the person he saw.3
On July 28, 1987, investigators executed a search warrant
at defendant’s mother’s house, which was where defendant was
living at the time. During the search, law enforcement officers
found a photo of defendant posing in front of a white Ford
Mustang while making a hand sign. Also seized during the
search were an empty gun holster and a receipt for purchases
3
Later at defendant’s trial, Jones would testify without
qualification that the man in position 3 was the person he saw
scuffling with Clark.
6
made by defendant, defendant’s brother Andre Romain (Andre),
and defendant’s longtime friend John Goines (Goines) during a
visit they made to the Beverly Hills Gun Club.
After finding the photograph of the white Ford Mustang
with defendant posing in front, law enforcement officers
impounded the Mustang shown in the photo—which was
registered in the name of Andre’s fiancée at the time, Pamela
Romain (Pamela). Although Pamela was the registered owner of
the Mustang, Andre was the primary driver of the car and
defendant drove it too. LAPD forensics personnel drove the
Mustang to create test skid marks to compare with the skid
marks left on Citrus Avenue. Comparison analysis revealed the
test skid marks from the Mustang were “consistent” with the skid
marks left on the night of the shooting (meaning the marks were
similar in their pattern, width, and spacing; no more definitive
conclusion than that could be drawn).
Defendant was arrested one month after Clark was fatally
shot—on the same day the search warrant was executed. When
he was taken into custody, officers noted and photographed two
wounds on his right inner forearm that were still in the process of
healing. The wounds were about three inches apart, and the one
closest to his elbow was circular in shape while the wound closer
to his wrist had more of an elliptical or teardrop shape. Detective
Jackson asked Joseph Choi, a doctor in the county coroner’s
office, to examine the forearm wounds, which he did. At
defendant’s preliminary hearing in October 1987, Doctor Choi
estimated the wounds were “a few weeks old” and opined they
were most likely caused by a “through and through” gunshot
wound—with the wound closest to the wrist being the entry
wound and the wound near the elbow the exit wound. Doctor
7
Choi did allow, however, that it was possible the wounds could
have been caused by being pierced with some sort of hard metal
“poker” or similar object.4
Defendant’s friend Goines (who was an LAPD police recruit
at the time) also testified at the October 1987 preliminary
hearing. Among other questions, Goines was asked whether he
observed wounds on defendant’s arm in July of that year. Goines
testified that he did see wounds on defendant’s arm and the
wounds looked similar to wounds another of Goines’s friends had
sustained when shot in the shoulder.
Another of defendant’s friends, Glen Tucker, was also a
witness at the preliminary hearing. Tucker testified defendant
gave him some firearms to keep for him in or before the summer
of 1987. Specifically, defendant gave Tucker a .38 caliber
revolver, a .357 caliber revolver, and two rifles. Tucker kept the
firearms for a couple days and then returned them to defendant
when Tucker’s aunt did not want the guns in her house.
Defendant was held to answer at the preliminary hearing
in 1987, but the murder charge against defendant was dismissed
shortly thereafter on a motion pursuant to Penal Code section
995. The investigation into Clark’s murder then went dormant
for over a decade.5
4
Doctor Choi opined the wounds were more likely caused by
a through and through gunshot than a “poker” because the
wound closest to the wrist was oval-shaped. The doctor explained
that this sort of shape can be created by a bullet that travels with
velocity and rotating movement while a “poker” would produce
more of a “straight sticking in” type of wound.
5
In the meantime, defendant was able to obtain employment
as a military police officer at a United States Air Force base. He
8
C
In 2001, partly at Detective Jackson’s urging, the LAPD
created a cold case homicide investigation unit. Detective
Jackson was one of the investigators in the new unit, and the
unit had some success in solving cases—largely as a result of
improvements in DNA analysis and development of automated
fingerprint databases.
In or about 2003, Jackson returned to the investigation of
Clark’s murder. He asked forensic personnel to see if a DNA
profile could be generated from analysis of the fibers and tissue
adhering to the bullet fired from Clark’s gun on the night of his
killing. LAPD forensics personnel separated the fibers and speck
of tissue from the bullet and sent them to an outside DNA
laboratory, Orchid Cellmark, for analysis. Orchid Cellmark
determined the fiber and tissue samples were so small that
testing them separately would risk developing an incomplete
DNA profile. Orchid Cellmark accordingly sought and obtained
permission from LAPD to test the fibers and tissue together as
one sample, and through that testing, they obtained a full, single-
source DNA profile from the material.
Knowing that a full DNA profile from the bullet-adhering
material had been obtained, and suspecting defendant’s DNA
would match the profile, Detective Jackson and other
investigators did two things. They obtained court authorization
to wiretap defendant’s phones (and several other target
telephones), and they obtained authorization to take a buccal
swab from defendant for DNA analysis. As a matter of
had also submitted applications to be a police officer at multiple
local police agencies.
9
investigative strategy, the belief was that taking the swab from
defendant would stimulate conversation on the wiretapped
phones and have a fair probability of generating evidence
regarding Clark’s killing.6
D
In 2004, the Los Angeles County District Attorney again
charged defendant with murdering Clark. An amended
information adding a personal use of a firearm sentencing
enhancement was filed in 2009. There were lengthy delays in
bringing the case to trial, owing in part to substitutions of
counsel representing defendant and pre-trial motion practice.
Trial commenced in July 2017. There was no real dispute
at trial about whether Clark was murdered; the question for the
jury was whether defendant was the culprit. The prosecution
presented evidence, some of which we have already detailed, to
show defendant was Clark’s shooter. With the trial court’s
permission and limiting instructions provided to the jury, the
prosecution also introduced evidence that defendant was a
member of the Rolling 60s Crips criminal street gang (at the time
of the crime and for years thereafter) to explain the reluctance of
two witnesses to testify and as evidence of a gang-related motive
for the killing. The defense endeavored to establish reasonable
6
Investigators intercepted hundreds of calls pursuant to the
wiretap and seven of those were ultimately played at defendant’s
criminal trial. Most were played during cross-examination of
defendant, who testified in his own defense. As we later discuss,
a transcript of one of the two calls played during the prosecution’s
case-in-chief was the subject of significant dispute as to whether
it accurately documented an admission by defendant.
10
doubt that defendant was present at the scene of the crime and
suggested Clark had been killed as a result of some personal,
perhaps drug-related dispute—possibly by defendant’s brother
Andre (who was deceased at the time of defendant’s trial).7
1
Through testimony and exhibits, the prosecution
introduced evidence to prove defendant was the man who shot
Clark. A lab technician who worked at Orchid-Cellmark and
analyzed the blue fibers and tissue on the bullet fired from
Clark’s gun determined the DNA profile obtained from the fibers
and tissue matched defendant’s DNA. Doctor Choi’s preliminary
hearing testimony was read into the record (Choi was deceased),
and the prosecution also presented live testimony from another
expert, emergency room doctor Marie Russell, who had seen
“thousands” of gunshot wounds and opined the photos taken of
defendant’s forearm wounds in 1987 showed “very, very typical
7
As we discuss post, defendant maintains his trial attorney
changed his theory of the defense mid-trial (one of the bases for
his claim that he received ineffective assistance of counsel): from
a drug deal gone bad to an intended third-party culpability
defense pointing to Andre as the killer. Though trial counsel did
at one point profess to have changed his theory when confronted
with an objection that he had not provided timely discovery, there
are other indications in the record that the defense all along kept
open the possibility of implying Andre was Clark’s shooter (such
an implication was not inconsistent with a claim that Clark was
killed in a drug deal gone bad because the defense’s position was
that Andre was a drug dealer).
11
looking” healing gunshot wounds.8 Jones testified and confirmed
his 85-percent certain identification of defendant as the person he
saw scuffling with Clark outside Clark’s car. Ryan testified to his
identification of the white car he saw speed off after the shooting
(with the gunman wearing blue), and the prosecution introduced
photos of the white Ford Mustang (driven primarily by Andre but
also sometimes by defendant) along with expert testimony
concerning the similarity of the skid marks made by that car and
those left on Citrus Avenue. Tucker testified and was confronted
with the preliminary hearing testimony he gave concerning the
guns he held for defendant, including .38 and .357 caliber pistols
(the same caliber of weapon that fired the bullets found in Clark’s
body during the autopsy). The prosecution also introduced
evidence of Dixon’s fingerprint left on Clark’s car and elicited
testimony that Dixon and defendant were friends.
There was also other evidence introduced by the
prosecution that implicated defendant as Clark’s killer. Pamela
was called as a hostile witness and the prosecution read into the
record her prior statement that Andre called her in the summer
of 1987 sometime between two and four in the morning to ask her
to come meet him because defendant had been shot; Andre also
directed her to say, if ever asked by the police, that he was not
with defendant that morning. Detective Jackson testified and
provided foundation for admission of calls intercepted during the
wiretap, including call number 260 (admitted as trial exhibit
105). The transcript of that call prepared by the prosecution
8
Doctor Russell also opined that gunshot wounds of the type
shown in the photos would have “not very much bleeding at all.”
12
reflected the prosecution’s belief that defendant admitted
shooting Clark (the bold type that follows is in the original):
[Defendant]: My whole thing is this homie, I gave
you all . . . my slob, a vial of my slob seventeen years
ago, [r]ight. [W]hy you didn’t test this shit on the
DNA with the shit that was left at the scene[?]
[Unidentified] Male: Hell yeah[.]
[Defendant]: You know what [I’m] saying. You
know, you already tested it . . . .
[Unidentified] Male: They trying to say that the
nigga that did the shooting, was nigga bleeding too[?]
[Defendant]: Yeah talking about the nigga I shot,
you know I’m saying [sic], [t]hey was saying that the
nigga, whoever killed this nigga got shot, know what
I’m saying[.]
[Unidentified] Male: Yeah[.]
[Defendant]: And uhm, this his blood on the ground
and this his blood on the bullet, so they test the blood
on the ground, which was enough and compare it to
mine and say it wasn’t me.
[Unidentified] Male: Yeah[.]
[Defendant]: But the blood on the bullet, seventeen
years ago, which was the same blood as the blood on
the ground you know, I know this as well as they
know this, you know what I’m saying[.]
In addition, the prosecution introduced motive evidence to
help prove defendant was Clark’s shooter. Antonio Watts, an
acquaintance of defendant’s in 1987 who was an admitted drug
dealer familiar with gang signs, testified he crashed his
customized convertible Nissan 300ZX into defendant’s car on
13
June 16, 1987—roughly two weeks before Clark’s shooting.
Watts’ customized car was nearly identical to Clark’s car (the two
were the only cars Detective Jackson had ever seen that looked
as they did), and the prosecution theorized Clark was targeted for
a carjacking to replace Watts’ totaled car after Watts paid for the
damage to defendant’s car. The prosecution also introduced
evidence that defendant was a member of the Rollin 60s Crips at
the time of the crime, that defendant said in a wiretapped call
that he would get “up close and personal and do your business”
rather than “hitting innocent bystanders” doing “drive bys,” that
Clark was wearing a red sweatshirt on the night he was shot, and
that Dixon’s fingerprint was found on Clark’s car after at the
shooting (defendant would later testify Dixon was a member of
the Rollin 60s Crips).9
2
The defense put on a substantial case at trial, including
defendant’s testimony in his own defense.
Defendant testified he was not present on the street outside
the Danceteria when Clark was killed. He testified he was not
hanging out at night and going to night clubs at the time because
9
Evidence concerning the Rollin 60s Crips was also admitted
to establish the reluctance of Watts and Pamela to testify.
Indeed, evidence of defendant’s gang membership was first
introduced at trial to explain why Watts previously made
inconsistent statements; Watts explained he made the earlier
inconsistent statements because three Rollin 60s Crips told him
what to say about how defendant got injured and he feared
retaliation by the gang.
14
he was applying to be an LAPD officer and was “most likely” at
home when Clark was killed.
Defendant also discussed the Rollin 60s Crip gang and
when he joined it. According to defendant, he avoided the gang
in his youth even though he grew up in a neighborhood within
territory claimed by the Rollin 60s Crips. After graduating from
high school, defendant enlisted in the Air Force, served as a
military policeman, and was honorably discharged in October
1986. Defendant specifically denied being a member of the Rollin
60s Crips when Clark was shot, but he did admit he joined the
gang in September 1987 when he was held in county jail after
being arrested for Clark’s murder. As defendant explained it, he
joined the gang as a matter of survival because failing to join the
gang while in custody would have left him vulnerable to being
hurt, set on fire, sodomized, or killed. Defendant, however,
conceded that, after being released from custody in December
1987, he remained a gang member for years—until 1994—
because he was homeless, couldn’t pursue work as a police officer,
and lived with “one of the guys . . . [he] was incarcerated with”
after they were both released. Defendant claimed he distanced
himself from the gang in more recent years, obtained
employment as a military police officer on an Air Force base, and
did gang intervention volunteer work through “online ministry”—
which, he contended, explained the numerous gang-related
pictures still posted on his Facebook account.
Defendant also testified concerning the wounds on his
forearm in 1987 and denied they were caused by a gunshot. He
claimed he sustained the wounds on June 22 or 23, 1987, (about a
week before Clark was shot) when his brother Andre stabbed him
15
with an ice pick while they were fighting.10 Defendant did not
recall which of the two piercing wounds was made by the ice pick
first, nor did he remember whether the ice pick caused an exit
wound after entering his skin because “[i]t was 30 years ago” and
he was “fighting for [his] life at that point.” Defendant
additionally testified Andre would wear his tops, jackets, and
shirts.
During his testimony, defendant also disputed the accuracy
of the prosecution’s transcription of wiretap call number 260.
Defendant testified he did not say “the nigga I shot” on the call;
instead, he maintained he said “the nigga that got shot,” but was
speaking quickly.
Finally, at other points in his testimony, defendant
asserted he owned only a rifle and a shotgun and had not
purchased any handguns (though, as recounted ante, both Tucker
and Goines testified defendant did have one or more handguns);
he stated he was not friends with Dixon (contrary to testimony
from defendant’s longtime friend Goines); and he conceded he
was depicted making a “neighborhood sign” (Watts identified it as
a Rollin 60s Crip gang sign) with his hand in the photo of
10
When first asked to explain the circumstances surrounding
the fight, defendant blurted out that Andre was a drug dealer;
the trial court struck the answer and admonished the jury to
disregard it. Defendant was thereafter permitted to explain what
happened during the fight, including the claimed ice pick
stabbing, but he was precluded by the court from testifying about
what precipitated the fight.
16
Pamela’s Mustang seized pursuant to the search warrant, i.e.,
before he was held in county jail after his arrest.11
In addition to defendant’s testimony, the defense presented
testimony from two expert witnesses. The first, an expert in
DNA analysis, agreed DNA found on the materials adhering to
the bullet from Clark’s gun was defendant’s DNA but explained it
was possible for a person to transfer their DNA to an object or
clothing through touching or wearing.12 The second, a doctor
testifying as an expert on gunshot wounds, opined the photos of
defendant’s forearm wounds possibly depicted a through and
through gunshot wound or an injury caused by a very sharp
instrument, but a gunshot wound was “highly unlikely” in light of
the location of the wound (the doctor believed the trajectory of the
bullet would have hit some other area of defendant’s body upon
exiting the arm).
3
The prosecution presented a short rebuttal case. A witness
testified to gang tattoos observed on defendant to contradict his
assertion that he never had gang tattoos on his arms that had
been removed. Another witness discussed the circumstances in
11
The prosecution also impeached defendant with a 1991
misdemeanor conviction for carrying a loaded firearm in
participation with a known criminal street gang. Defendant does
not argue there was error in permitting this impeachment.
12
The defense’s DNA expert also explained there was no way
to determine whether defendant’s DNA came from the blue
fibers, the human tissue, or both because the fibers and tissue
were combined for analysis.
17
which transfer of DNA through touching objects may or may not
occur. A gang expert discussed the Rollin 60s Crips, why it was
unlikely defendant maintained gang photos on his Facebook
account for gang intervention purposes, why gang members
typically “take care of their drug dealers,” and why Rollin 60s
Crips “would not have a problem” robbing someone wearing red.
And Detective Jackson testified that, in 1987, defendant told him
he sustained the right forearm wounds in a car accident and did
not mention having been stabbed with an ice pick.13
4
After the close of evidence, the prosecution and defense
joined in requesting pattern instructions on murder, including
felony murder. The defense asked the court to give a third-party
culpability special instruction in light of the defense desire to
suggest Andre could have been Clark’s shooter. The trial court
declined to give a third-party culpability instruction, citing People
v. Hall (1986) 41 Cal.3d 826 (Hall) and explaining the defense
had not made a sufficient showing to warrant such an
instruction.14
13
On cross-examination, Detective Jackson confirmed he had
received a report from another detective, Rozzi, who examined
defendant’s body; Jackson, however, was not present for the
examination. When the defense asked Detective Jackson if
Detective Rozzi questioned defendant about the scars on his
forearm, the prosecution objected on hearsay grounds and the
trial court sustained the objection.
14
Hall holds that “evidence of mere motive or opportunity to
commit the crime in another person, without more, will not
suffice to raise a reasonable doubt about a defendant’s guilt:
18
After deliberating for roughly a day and a half, the jury
convicted defendant of first degree murder and found the
associated firearm use enhancement true.15 With new counsel,
defendant filed a 78-page motion for new trial arguing there had
been errors in the introduction and exclusion of evidence,
defendant’s trial attorney had been constitutionally ineffective
(no declaration from trial counsel was submitted), and there had
been instances of “prosecutorial error.” The trial court denied the
motion and sentenced defendant to 27 years to life in prison: 25
years for the murder conviction and two years for the firearm
enhancement. This appeal ensued.
II
The host of arguments defendant presents to seek reversal
of his conviction mainly track those presented to the trial court in
his motion for new trial. He argues (1) certain evidence the
prosecution presented was improperly admitted, (2) certain
evidence he wished to present or elicit was wrongly excluded, (3)
the trial court committed instructional error by refusing his
request for a third-party culpability instruction and by not
instructing sua sponte on the lesser included offense of voluntary
manslaughter, (4) his trial attorney provided constitutionally
there must be direct or circumstantial evidence linking the third
person to the actual perpetration of the crime.” (Id. at 833.)
15
During deliberations, the jury submitted one question to
the court, which asked whether brandishing a firearm implies
malice aforethought. The trial court responded to the question
largely by re-reading the pattern instruction defining implied
malice.
19
deficient representation in various ways, and (5) the prosecution
committed misconduct by not acknowledging the existence of a
prior consistent statement by defendant about how he sustained
the forearm wounds. Defendant also contends we should remand
the matter so the trial court can consider whether to strike, in the
interest of justice, the firearm enhancement imposed at
sentencing.16 For reasons we first summarize and then detail,
16
We omit from this list contentions that are inadequately
presented for decision and thus forfeited. (See, e.g., People v.
Stanley (1995) 10 Cal.4th 764, 793.) Specifically, defendant’s
opening brief asserts in a single paragraph that the evidence was
insufficient to permit the jury to find malice aforethought and
makes only a cursory argument that defendant’s trial attorney
was prejudicially ineffective in failing to move to suppress the
calls intercepted pursuant to the wiretap warrant.
In addition, prior to submission of the cause, this court
invited defendant to bring to the court’s attention—via a letter
complying with California Rules of Court, rule 8.254 (rule 8.254)
or an application to file a supplemental brief—new authorities,
new legislation, or other matters that were not available in time
to be included in his opening brief. Defendant did not ask to file
a supplemental brief. Instead, he submitted a one-page letter
that cites new authority in compliance with rule 8.254 as to the
sentencing issue he briefed but also raises entirely new issues:
one-sentence assertions that defendant may benefit from
legislative amendments made by Senate Bill Nos. 1473 (2017-
2018 Reg. Sess.), 775 (2021-2022 Reg. Sess.), and 1209 (2021-
2022 Reg. Sess.). These new issues are also forfeited as
inadequately presented, but nothing in this opinion precludes
defendant from pursuing in the trial court the petition procedure
provided by Penal Code section 1172.6. (Pen. Code, § 1172.6,
subd. (d)(3).)
20
none of the arguments defendant makes for reversal is
meritorious.
The trial court did not err in admitting evidence of
defendant’s gang membership, of Andre’s “[defendant] got shot”
statement to Pamela during the middle of the night telephone
conversation, or Goines preliminary hearing testimony that
defendant’s arm wounds looked like gunshot wounds. The bulk of
the gang evidence at trial came in as a result of defendant
opening the door to such evidence during his testimony, and the
trial court’s decision to allow the prosecution to introduce the
limited gang evidence that came in during its case-in-chief—to
permit the jury to assess Watts and Pamela’s credibility and as
evidence of a possible motive for killing Clark—was not an abuse
of the trial court’s discretion. The trial court also did not abuse
its discretion in concluding Andre’s statement to Pamela
qualified for admission under the spontaneous statement
exception to the hearsay rule; the court could reasonably infer
from the circumstances surrounding the statement that Andre
was still under the stress of having seen his brother’s injury.
Goines’s testimony that defendant’s forearm wounds looked
similar to a gunshot wound he had seen was properly admitted to
allow the jury to evaluate his bias favoring defendant, and
insofar as defendant argues the prosecution misused the
testimony as substantive evidence of the cause of defendant’s
wounds, such use was cumulative and obviously harmless in light
of the expert evidence received from Doctors Russell and Choi
(and the doctor called by the defense).
The trial court also did not err in preventing the defense
from presenting its own transcript of wiretap call 260, from
presenting testimony by Pamela about bad acts committed by
21
Andre, from eliciting testimony from defendant about the
circumstances preceding his claimed ice pick fight with Andre,
from questioning Doctor Russell about reports authored by
Doctor Choi that Doctor Russell did not recall reviewing, and
from eliciting testimony from Detective Jackson about statements
made by defendant to Detective Rozzi—outside Detective
Jackson’s presence—about the cause of defendant’s forearm
wounds. At trial, the defense never asked to present its own
transcription of call 260 and the jury was repeatedly instructed
that the recording itself was what controlled, not the transcript
which was merely a guide to facilitate listening. The defense was
not entitled to have Pamela testify about drug dealing and crimes
committed by Andre because this generalized criminal propensity
evidence is not proper third-party culpability evidence and
because, in any event, there was no adequate evidence proffered
that linked Andre to the actual commission of the murder.
Inquiry into the dispute between defendant and Andre that
preceded the claimed ice pick fight was properly excluded, as the
trial court put it, as an attempt to “dirty up Andre” that had little
if any relevance and would confuse the issues. The trial court
correctly precluded the defense from cross-examining Doctor
Russell about reports written by Doctor Choi that she had not
relied on in forming her opinion, and regardless, Doctor Choi’s
testimony was read into the record. And the trial court was right
that hearsay rules barred Detective Jackson from testifying to a
statement defendant made to Detective Rozzi when Detective
Jackson was not present.
Reversal also is not warranted because the trial court
rejected the defense request for a third-party culpability
instruction or because the court did not instruct the jury sua
22
sponte on voluntary manslaughter as a lesser included offense.
Even assuming there was adequate evidence before the court to
justify giving a pinpoint instruction on third-party culpability,
the absence of such an instruction was harmless. Contrary to
defendant’s assertion in his opening brief, the trial court did not
preclude the defense from suggesting Andre may have been
Clark’s shooter (that is indeed what the defense implied during
closing argument) and the court’s instruction on reasonable doubt
sufficed to inform the jurors that acquittal was required if there
was reasonable doubt as to whether someone else shot Clark. No
sua sponte instruction on heat of passion or imperfect self-
defense voluntary manslaughter was required because such an
instruction was inconsistent with the defense at trial as put
forward by defendant’s own sworn testimony: that he was not the
shooter and wasn’t even present outside the Danceteria when
Clark was shot.
Also unmeritorious in this direct appeal from the judgment
of conviction are defendant’s claims that his trial attorney was
constitutionally ineffective by not interposing hearsay objections
when the prosecution read prior testimony of several witnesses
into the record and by purportedly being “underprepared” (as
shown by untimely production of defense discovery, an asserted
failure to have reviewed all the wiretap calls, the failure to retain
experts to contradict the prosecution’s transcription of wiretap
call 260 and the prosecution’s gang expert, and presentation of
what defendant now argues was an “incoherent defense”).
Demonstrating ineffective assistance of counsel on direct appeal
is “difficult” (People v. Mickel (2016) 2 Cal.5th 181, 198 (Mickel))
because, as is the case here, “the appellate record will often not
sufficiently reveal why the defense counsel acted or failed to act
23
on any given occasion” (id. at 198-199) and defendant must in
any event show any deficient performance was prejudicial (id. at
198). None of defendant’s ineffective assistance of counsel claims
meet this demanding standard.
Finally, we do not believe prejudicial misconduct by the
prosecution during rebuttal argument has been shown on this
record (the prosecution suggested only that the jury have
testimony read back to determine if Detective Rozzi’s name was
mentioned before closing argument) and defendant’s request for a
remand so the trial court can consider striking the personal use
of a firearm enhancement is forfeited because the trial court had
such discretion at the time of sentencing and defendant never
asked the trial court to exercise it.
A
1
Before trial, the prosecution moved to admit evidence of
defendant’s membership in the Rollin 60s Crips on two grounds.
First, the prosecution argued defendant’s gang affiliation was
relevant to motive and identity; as to motive, the prosecution
argued (among other things) that defendant made statements on
wiretapped calls concerning how he, as a gang member, would
take care of his victims by going straight up to them and shooting
rather than doing drive-bys. Second, the prosecution argued
defendant’s gang affiliation should be admitted to explain why
Watts and Pamela may testify consistent with a fear of
retaliation from the gang. At the defense’s suggestion, the trial
court deferred ruling on the motion in limine until the evidence
was actually offered at trial, but the court stated its indicated
ruling would be to permit the prosecution to establish defendant’s
24
gang membership as evidence of motive if wiretap evidence as
represented by the prosecution was received.
Once trial started, the trial court admitted evidence of
defendant’s gang membership early on, but for the second of the
prosecution’s argued reasons.17 The prosecution asked Watts to
explain why he previously testified falsely at defendant’s 1987
preliminary hearing when he was asked how defendant sustained
his forearm injuries. Watts said he testified the way he did
because someone told him what to say, and the prosecution
sought the court’s permission to elicit testimony that men Watts
knew to be Rollin 60s Crips were the ones who told him what to
say about how defendant was injured. After an Evidence Code
section 402 hearing outside the jury’s presence, the trial court
considered the probative and prejudicial potential of the
testimony and agreed Watts could testify that defendant was a
member of the Rollin 60s Crips and others in the gang told him
he should testify in a particular manner at the preliminary
hearing.
Watts thereafter testified that defendant was a member of
the Rollin 60s Crips (in his words, defendant was “from there”)
and the hand sign defendant was making in the photo posing in
front of the Mustang was a Rollin 60s Crips gang sign. At the
conclusion of Watts’ direct examination, the trial court
17
The court sustained an earlier defense objection when the
prosecution argued Watts should be allowed to testify defendant
was making a Rollin 60s Crips gang sign as evidence of a gang-
related motive for Clark’s murder. At that point in the trial, the
court believed admitting evidence of defendant’s gang affiliation
on motive grounds was premature because gang members can
commit crimes for personal reasons.
25
admonished the jury that the gang evidence had been received for
a limited purpose.18
In the remainder of the prosecution’s case-in-chief,
introduction of additional gang evidence was sparse and policed
by the trial court. During Pamela’s testimony, the prosecution
played a recording of interview statements to investigators where
she expressed fear of having to testify because “all those Rolling
60s and somebody” might “end up doing something to [her] later.”
Goines testified he knew of defendant’s connection to the Rollin
60s Crips at the time when he saw the healing wounds on
defendant’s arm. There was also what the jury could properly
infer was a reference to gang activity in one of the wiretap calls
the prosecution played during its case-in-chief: the call where
defendant stated he operated by getting “up close and personal
and do[ing] . . . business” rather than “hitting innocent
bystanders” with “drive bys.”
18
The trial court stated: “I am going to give you a limitation
on considering gang evidence. It will apply to this witness, as
well as other witnesses, and you will get the full instruction at
the close of the trial. [¶] [Y]ou can consider the evidence of gang
activity only for the limited purpose of deciding whether the
defendant had a motive to commit the crime, and there may or
may not be other evidence introduced as to that, or you may also
consider this evidence when you evaluate the credibility or
believability of a witness and when you consider the facts and
information relied on by a witness or an expert witness in
reaching his or her opinion. [¶] You may not consider this
evidence for any other purposes. You may not conclude from this
evidence that the defendant is a person of bad character or that
he has a disposition to commit crime.” A similar limited purpose
instruction was given to the jury just before deliberations.
26
Significantly more evidence of defendant’s gang
membership and involvement (including Facebook account
pictures and additional wiretap calls) did come in after defendant
testified. That evidence was admitted, however, because the
defense consciously opened the door to such evidence by having
defendant testify to his good character.19
We review a trial court’s decision to admit gang evidence as
relevant to a charged offense and substantially more probative
than prejudicial under the abuse of discretion standard of review.
(People v. Carter (2003) 30 Cal.4th 1166, 1194.) Under settled
precedent, in cases where a gang enhancement is not charged,
“evidence of gang membership is potentially prejudicial and
should not be admitted if its probative value is minimal.
[Citation.] But evidence of gang membership is often relevant to,
and admissible regarding, the charged offense. Evidence of the
defendant’s gang affiliation—including evidence of the gang’s
territory, membership, signs, symbols, beliefs and practices,
criminal enterprises, rivalries, and the like—can help prove
identity, motive, modus operandi, specific intent, means of
applying force or fear, or other issues pertinent to guilt of the
charged crime.” (People v. Hernandez (2004) 33 Cal.4th 1040,
1049; see also People v. Samaniego (2009) 172 Cal.App.4th 1148,
19
When defense counsel sought to elicit testimony from
Pamela that defendant was previously in the military and
“wasn’t a gang person,” the prosecution initially objected. At
sidebar, the prosecution withdrew its objection and the court said
to defense counsel, “Think about what you are doing. It’s up to
you. You are going to open the door.” Defense counsel responded
he was going to “bring it up in [his] case-in-chief” and “talk about
all the character stuff in [his] case-in-chief.”
27
1168 [“Gang evidence is also relevant on the issue of a witness’s
credibility”].)
The trial court’s decision to permit the prosecution to
introduce evidence of defendant’s gang membership was not
error. In fact, defendant does not actually challenge the principal
basis on which the trial court allowed evidence of his membership
in the Rollin 60s Crips: because it was relevant to the credibility
of Watts and Pamela. Instead, defendant’s real complaint is that
the prosecution argued a theory unsupported by the evidence
admitted, i.e., that defendant attempted to steal Clark’s car to
replace Watt’s car that was totaled because he wanted to “take
care” of Watts, who was one of the Rolling 60s Crips’ drug
dealers. There was no objection in the trial court, however, when
the prosecution argued that theory to the jury, nor is there a
challenge to that argument (as opposed to the admission of
evidence) in this appeal.
Even if defendant had argued the prosecution’s argument
was improper because there was no evidence Watts was a
member of the Rollin 60s Crips, that argument would still fail for
two related reasons. First, the jury could reasonably infer from
Watts’ testimony that he was an associate of the Rollin 60s Crips
even if he was not a full-fledged member: Watts admitted while
testifying that he was a drug dealer in 1987, he was familiar
enough with Rolling 60s Crips gang signs to be able to identify
one that defendant made in the photo of him posing in front of
the Mustang, and he associated with defendant and Andre, both
of whom were in the gang. Second, the prosecution’s replacement
car motive theory did not depend on Watts being a member of the
Rollin 60s Crips. Defendant could have a motive to replace
Watts’ car if Watts was just an associate of the gang, or even if
28
Watts was just friends with defendant and Andre and not
affiliated with the Rollin 60s Crips at all.
2
In a 2003 audio-recorded interview with detectives, Pamela
recalled an instance in the summer of 1987 when she was
awakened in the middle of the night, somewhere between two
and four in the morning, by a phone call from her then-fiancée
Andre. In that phone call, Andre told Pamela “[defendant] got
shot” and asked Pamela to come meet him somewhere “for
[defendant].” Either during that same conversation or a later one
(the record is not clear), Andre also told Pamela that the police
thought Andre was with Pierre that night and Pamela should say
“[Andre] was not with [defendant] or they left together but then
they weren’t together later . . . .”
The prosecution sought to admit Andre’s statement to
Pamela under the spontaneous statement exception to the
prohibition on hearsay. The trial court agreed the statement met
the requirements of the exception and was admissible.
Specifically, as to the requirement that such a statement be made
to describe a condition or event perceived by the declarant, the
court found it could infer the requirement satisfied in light of
Andre’s direction to Pamela to say he was not with defendant; in
the court’s words, Pamela was “told make up a story so he’s not
there, which indicates he is there.” Our review of this ruling is
for abuse of discretion (People v. Merriman (2014) 60 Cal.4th 1,
65 (Merriman)) and we hold there was no such abuse.
Evidence Code section 1240 states “[e]vidence of a
statement is not made inadmissible by the hearsay rule if the
statement: [¶] (a) [p]urports to narrate, describe, or explain an
29
act, condition, or event perceived by the declarant; and [¶] (b)
[w]as made spontaneously while the declarant was under the
stress of excitement caused by such perception.”
“The admissibility requirements for such out-of-court
statements are well established. ‘“(1) [T]here must be some
occurrence startling enough to produce this nervous excitement
and render the utterance spontaneous and unreflecting; (2) the
utterance must have been before there has been time to contrive
and misrepresent, i.e., while the nervous excitement may be
supposed still to dominate and the reflective powers to be yet in
abeyance; and (3) the utterance must relate to the circumstance
of the occurrence preceding it.” [Citations.]’ [Citation.] A
statement meeting these requirements is ‘considered
trustworthy, and admissible at trial despite its hearsay
character, because “in the stress of nervous excitement, the
reflective faculties may be stilled and the utterance may become
the instinctive and uninhibited expression of the speaker’s actual
impressions and belief.” [Citation.]’ [Citation.] [¶] A number of
factors may inform the court’s inquiry as to whether the
statement in question was made while the declarant was still
under the stress and excitement of the startling event and before
there was ‘time to contrive and misrepresent.’ [Citation.] Such
factors include the passage of time between the startling event
and the statement, whether the declarant blurted out the
statement or made it in response to questioning, the declarant’s
emotional state and physical condition at the time of making the
statement, and whether the content of the statement suggested
an opportunity for reflection and fabrication.” (Merriman, supra,60 Cal.4th at 64.)
30
Defendant contends the trial court erred in admitting
Andre’s statement to Pamela because there was no evidence
Andre sounded excited or stressed at the time he made it, nor any
evidence Andre saw defendant get shot or even saw his gunshot
wound.20 The former point is wrong on the law and the latter
point is wrong on the facts. As to the former, precedent is clear
that the outward demeanor of a declarant is not dispositive of
whether the declarant remained under the stress or excitement of
a startling event. (See, e.g., People v. Poggi (1988) 45 Cal.3d 306,
319 [“the fact that the declarant has become calm enough to
speak coherently also is not inconsistent with spontaneity”]
(Poggi).) The question instead is whether all the circumstances
indicate the declarant was still under the influence of a startling
event (Merriman, supra, 60 Cal.4th 64) and here, the trial court
did not abuse its discretion in finding Andre was. Encountering a
sibling just wounded by a gunshot is certainly startling, and the
court could reasonably infer from the circumstances of the call
Andre placed—coming in the middle of the night, at most two
hours after defendant was shot—that Andre was still under the
influence of the startling event. (See, e.g., People v. Clark (2011)
52 Cal.4th 856, 926 [declarant’s statement came two to seven
hours after the “shocking and disturbing events”]; Poggi, supra,
at 319 [declarant still under the influence of an attack 30
minutes after it occurred].) As to the latter contention, the trial
court was justified in inferring Andre was with defendant and in
a position to see his fresh gunshot wound for the reason the court
20
Insofar as defendant contends that admission of Andre’s
statement is a constitutional Confrontation Clause violation, the
point is forfeited. (People v. Redd (2010) 48 Cal.4th 691, 730.)
31
did: because Andre’s direction that Pamela lie and say he was not
with defendant indicates that Andre was with him at the time.
Defendant, however, counters that Andre’s instruction to
say he was not with defendant is an indication Andre’s statement
that defendant got shot lacks indicia of trustworthiness because
it shows Andre’s reflective faculties were not stilled. There are
two responses to this. First, we do not believe the trial record is
clear that Andre’s instruction to say he was not with defendant
came in the same phone call when he told Pamela that defendant
got shot. Second, even if it did come in the same call, that is not
the sort of contrivance that undermines the trustworthiness of
Andre’s declaration that defendant got shot. If anything, Andre’s
instruction that Pamela lie to the police tends to heighten the
trustworthiness of the unguarded statement he made when
waking up his then fiancée to come meet him in the middle of the
night; a desire to avoid being implicated in what was truly a
shooting helps explain why Andre wanted to Pamela to give the
police a false account of his whereabouts.
3
During the prosecution’s case-in-chief, the trial court held
an Evidence Code section 402 hearing outside the presence of the
jury to consider whether the prosecution could elicit testimony
from Goines that he saw wounds on defendant’s arm that looked
like a gunshot wound he had previously seen. The trial court
ruled Goines lacked the expertise to offer an opinion on the cause
of defendant’s wounds, but the court found Goines to be an
“evasive” witness and permitted the prosecution to confront
Goines with inconsistencies between his preliminary hearing
testimony that defendant appeared to have sustained a gunshot
32
wound and a later statement in an interview with detectives that
defendant told him the wounds were caused by some kind of
“pole” or “poker” to permit the jury to fully assess Goines’s
credibility and potential bias in defendant’s favor.
That is what the prosecution ultimately did, and defendant
argues this was error. He contends the prosecution improperly
impeached Goines with his preliminary hearing testimony
because Goines did not testify inconsistently with that testimony
during trial.
There was, however, no impeachment. The preliminary
hearing testimony was not before the jury as a prior inconsistent
statement; indeed, the prosecution never read Goines’s
preliminary hearing testimony about defendant’s wounds to the
jury at all. Instead, the prosecution asked Goines if he recalled
saying at the preliminary hearing that defendant’s wounds
looked similar to a gunshot wound Goines had seen, and Goines
said he did recall so testifying. To be sure, the prosecution did
highlight the inconsistency in defendant’s two out-of-court
statements (one at the preliminary hearing and the other in an
interview with detectives), but that was done for the permissible
purpose of demonstrating Goines’s bias in defendant’s favor—to
show that over the years, and in light of tension between Goines’s
and defendant’s families caused by the charge in this case,
Goines was willing to shade his testimony in defendant’s favor.
(See generally United States v. Abel (1984) 469 U.S. 45, 52 [“Proof
of bias is almost always relevant because the jury, as finder of
fact and weigher of credibility, has historically been entitled to
assess all evidence which might bear on the accuracy and truth of
a witness’ testimony”].)
33
Defendant’s real complaint appears to be that the
prosecution used Goines’s recollection of his prior preliminary
hearing testimony in a manner that went beyond the reason why
the trial court allowed the prosecution to inquire about it.
Specifically, defendant believes “the entire purpose for Goines’[s]
testimony” was to elicit the prior statement that defendant
wounds looked similar to a gunshot wound and the prosecution
relied on that testimony not just to argue Goines was a biased
witness but to bolster the case that defendant’s wounds were, in
fact, gunshot wounds. We do not believe that precisely
characterizes all the reasons why the prosecution presented
Goines’s testimony (e.g., to establish defendant and Dixon were
friends notwithstanding defendant’s denial) or how the
prosecution relied on the testimony. But even if defendant is
right that the prosecution transgressed the reason why the trial
court allowed reference to Goines’s preliminary hearing
testimony, any error was still harmless. In light of the extensive
expert opinion evidence admitted during trial about whether
defendant’s forearm wounds were gunshot wounds, there is no
reasonable probability the jury would have been swayed by
Goines’s observations of the wound over the opinions of the three
doctors who testified.
B
1
Prior to the presentation of evidence at trial, the trial court
heard defense objections to the prosecution’s transcription of
wiretapped calls it intended to use. Chief among the objections
was the defense contention that defendant said “the nigga that
34
got shot” during wiretap call 260—not “the nigga I shot” as
reflected in the prosecution’s transcript of the call.
The trial court listened to the audio recording of that call
and found it was “very obvious” that defendant said “I shot,” not
“got shot” on the call. The court additionally explained its view
that, regardless, it only needed to assure itself the transcript was
not completely wrong or completely different from the recording
because the jury was the finder of fact (as the trial court put it,
the jurors’ “ears are what controls”) and it would admonish the
jury that the prosecution’s transcript was only a guide or
listening aid and the actual evidence was the recording itself.
The court accordingly ruled the prosecution could use the
transcript it prepared, but the court emphasized it would give the
usual admonition that what jurors hear on the recording controls.
True to its word, the trial court did so admonish the jury not only
just before wiretap call 260 was played, but also on at least six
other occasions during trial.
Defendant now argues the defense was improperly denied
the right to present its own transcript of call 260. The argument
fails for the most obvious of reasons: the defense never asked the
trial court to present its own transcript, and the court cannot be
faulted for refusing to grant a request the defense never made.
Further, insofar as defendant contends it was error to permit the
prosecution to use the transcript of the call regardless of whether
he offered his own alternative transcription, the contention still
fails. The defense was not precluded from presenting the jury
with its own account of what was said on the transcript—indeed,
that account came from defendant, the very person who was
speaking on the wiretapped call—and the admonitions given
repeatedly by the trial court sufficed to ensure the jury
35
determined the facts from the recording itself, not the transcript
provided.21 (See, e.g., People v. Jones (2017) 3 Cal.5th 583, 611;
People v. Polk (1996) 47 Cal.App.4th 944, 955 [“[I]t is our opinion
the transcript prepared by the prosecution was sufficiently
accurate in material respects to justify its use by the jury”].)
2
The trial court had several discussions with the parties
during trial (outside the presence of the jury) about whether
third-party culpability evidence was admissible, i.e., whether the
defense was entitled to present evidence that Andre, not
defendant, was Clark’s shooter. Defendant contends these
discussions were the source of three errors: the trial court did not
permit the defense to elicit certain testimony from Pamela that
the defense believes would have bolstered the case that Andre
was the culprit, the trial court declined to give a third-party
culpability instruction based on the evidence that was received
during trial, and defense counsel provided ineffective assistance
21
We have listened to the recording ourselves and, apart from
the disputed statement at issue, there are other minor
discrepancies that fairly frequently arise between what we hear
and what the transcript says (or does not say). These
discrepancies make it more likely that the jurors were focused on
the audio recording as the evidence. Thus, while we do not share
the trial court’s confidence that defendant clearly says “the nigga
I shot” as opposed to “the nigga got shot” (particularly when
considering the full context of the call), the need to make a
determination one way or the other was squarely presented to
the jury for decision and we do not doubt they resolved the
dispute without being unduly influenced by the transcript.
36
by seeking to mount a third-party culpability defense only
midway through trial. At the moment, we address only the first
of these; discussion of the other two assignments of error comes
later.
“Like all other evidence, third party culpability evidence
may be admitted if it is relevant and its probative value is not
substantially outweighed by the risk of undue delay, prejudice, or
confusion, or otherwise made inadmissible by the rules of
evidence. (Evid. Code, §§ 350, 352; see [ ]Hall[, supra,] 41 Cal.3d
[at] 834[ ].) ‘To be admissible, the third-party evidence need not
show “substantial proof of a probability” that the third person
committed the act; it need only be capable of raising a reasonable
doubt of defendant’s guilt. At the same time, we do not require
that any evidence, however remote, must be admitted to show a
third party’s possible culpability.’ (Hall, [supra,] at [ ] 833[ ].)
For example, ‘evidence of mere motive or opportunity to commit
the crime in another person, without more, will not suffice to
raise a reasonable doubt about a defendant’s guilt . . . .” (Ibid.)
Moreover, admissible evidence of this nature points to the
culpability of a specific third party, not the possibility that some
unidentified third party could have committed the crime.
[Citations.] For the evidence to be relevant and admissible,
‘there must be direct or circumstantial evidence linking the third
person to the actual perpetration of the crime.’ (Hall, [supra,] at
[ ]833[ ], italics added.) As with all evidentiary rulings, the
exclusion of third party evidence is reviewed for abuse of
discretion. [Citations.]” (People v. Turner (2020) 10 Cal.5th 786,
816-817.)
At an Evidence Code section 402 hearing, the defense
argued it should be permitted to elicit the following testimony
37
from Pamela: (1) Andre was twice arrested for stealing cars
(including once from an elderly lady at gunpoint), (2) Andre was
very abusive in their relationship and had gone to prison on a
domestic violence charge, (3) Andre sold drugs at his mother’s
house and was “doing shady stuff in the streets,” and (4) Andre
had been imprisoned for either pistol-whipping or stealing money
from “some guy.” The trial court precluded the defense from
eliciting the testimony because the defense had not adequately
established a link between Andre and Clark’s murder.
Defendant argues this was error and he should have been
allowed to have Pamela tell the jury about all of this. The
argument is meritless, for two related reasons. First, the
proffered testimony from Pamela was generalized criminal
propensity evidence that is inadmissible to establish third-party
culpability. (People v. Elliott (2012) 53 Cal.4th 535, 580-581
[“Evidence of a third party’s prior crimes is inadmissible to
establish the third party’s criminal propensity. [Citations.] For
evidence of an uncharged offense to be admissible to establish the
third party’s identity as the perpetrator of the charged crimes,
‘“[t]he pattern and characteristics of the crimes must be so
unusual and distinctive as to be like a signature.”’ [Citations]”.)
Second, for third-party culpability evidence to be admissible at
all, there must be direct or circumstantial evidence linking the
third person to the actual perpetration of the crime (Hall, supra,
41 Cal.3d at 833), and there was no adequate evidence of such a
link here. To be sure, there was evidence that the Mustang used
as the getaway vehicle was primarily driven by Andre (though no
one saw that vehicle in the immediate area of where the shooting
occurred) and testimony from defendant that Andre wore his tops
(though when or even how often the jury was not told). But
38
neither of these facts (if facts they are) links Andre to the actual
perpetration of the shooting—particularly when it was
defendant’s DNA profile found on the bullet-adhering material,
when there was uncontested proof that Dixon was the second of
the two men that accosted the occupants of Clark’s car, and when
Andre was the one who told his fiancée that defendant had been
shot.
3
During defendant’s direct examination, the trial court
sustained hearsay and relevance objections when defendant was
asked to recount the argument with Andre that preceded the
fight where he claimed to have been stabbed in the arm with an
ice pick.22 The trial court ruled defendant could testify to the
fight itself and any injuries that resulted from it, but not words
spoken or the reason for the purported argument between the
two brothers. The court explained the circumstances that
preceded the fight were not relevant, would call for hearsay, and
would be excluded under Evidence Code section 352.
Elaborating, the trial court found the attempt to elicit testimony
about the asserted reason for the fight was “just an attempt to
dirty up an individual who you hope at some point to be able to
show as a third[-]party culpability individual, and I am not going
to allow it. It’s just back dooring it.”
22
Asked for a proffer of what defendant would say if allowed
to testify about the reason for the fight, the defense explained
defendant would testify the confrontation occurred as a result of
Andre selling drugs at their mother’s house and defendant’s
objection to that.
39
Defendant argues the trial court’s ruling was error
because the reasons for the fight between the brothers was
relevant.23 Relevant evidence is evidence “having any tendency in
reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.” (Evid. Code,
§ 210.) The trial court’s ruling was correct. An account of the
fight itself and how defendant sustained the injuries to his arm
was relevant to whether he shot Clark (or, perhaps more
precisely, whether Clark shot him). Why defendant and Andre
were fighting, on the other hand, had no tendency to prove or
disprove the shooter’s identity.
Defendant’s only rejoinder is the claim that providing an
account of the reason for the fight was necessary so defendant’s
claim that the fight occurred would be believable—an argument
he also made to the trial judge. We are unpersuaded. The trial
court’s ruling left defendant free to describe any number of
details about the fight itself and its aftermath that might
increase the believability of his account, e.g., what exactly the ice
pick looked like, how exactly the ice pick pierced his forearm, and
how many times he was stabbed. The problem was just that
defendant’s memory was either hazy or nonexistent as to these
details. We accordingly believe the record demonstrates the trial
court had the right view of the matter: the attempt to elicit
testimony about the reason for the fight was really just an
23
Defendant does not challenge the trial court’s exclusion of
the evidence on Evidence Code section 352 grounds, and this
alone is reason to reject defendant’s challenge to the trial court’s
ruling.
40
improper attempt to introduce inadmissible third-party
culpability criminal propensity evidence.
4
During the testimony of Doctor Russell, the defense
inquired as to whether she had been given any reports authored
by Doctor Choi concerning his examination of defendant or
advised that Doctor Choi testified in a prior hearing. Doctor
Russell did not recall seeing any reports or being advised of
Doctor Choi’s testimony. The trial court warned the defense that
questions of Doctor Russell concerning conversations with Doctor
Choi, testimony of Doctor Choi, or Doctor Choi’s opinions would
be hearsay. The defense asked to be heard at sidebar and argued
Doctor Russell could testify to these topics because “opinions are
always what the experts rely on.” The trial court explained
questions in these areas would still call for hearsay because
Doctor Russell had no recollection of relying on Doctor Choi’s
opinions, but the court also pointed out that Doctor Choi was on
the prosecution’s witness list. When the prosecution confirmed it
intended to read Doctor Choi’s preliminary hearing testimony
into the record and the trial court noted the testimony was
accordingly “coming in one way or the other,” defense counsel
responded, “Okay[, n]o problem” and concluded his cross-
examination.
Defendant now contends, however, that the trial court
improperly limited his cross-examination of Doctor Russell by not
permitting questions concerning Doctor Choi’s opinions. We
believe the point was likely waived by trial counsel’s “no problem”
statement after learning Doctor Choi’s testimony would be read
into the record. But even assuming the point was not waived, it
41
is still unavailing. The defense was permitted to ask Doctor
Russell if she reviewed any materials from Doctor Choi and she
said she did not recall doing so. Thus, to the extent the defense
sought to invoke Doctor Choi’s reports or testimony to challenge
the comprehensiveness of Doctor Russell’s review of the case, that
aim was achieved. To the extent that the defense’s true aim in
cross-examining on this point was instead to place the substance
of Doctor Choi’s conclusions before the jury, that would indeed be
relating inadmissible hearsay (People v. Sanchez (2016) 63
Cal.4th 665, 686) and, in any event, the prosecution’s later
reading of Doctor Choi’s testimony to the jury necessarily cured
any assumed error.
5
As we detailed earlier in the margin, on cross-examination,
the defense asked Detective Jackson if Detective Rozzi
questioned defendant about the scars on his forearm, the
prosecution objected on hearsay grounds, and the trial court
sustained the objection. Subsequently, however, the trial court
suggested the prosecution might stipulate to any statement
defendant made to Detective Rozzi if the prosecution were
satisfied there was such a statement and it was accurately
documented. The prosecution said it could not represent it was
satisfied any documentation was accurate, and the trial court
then asked the prosecution to try to help locate Detective Rozzi
(who had since retired). The prosecution agreed to do so but
ultimately was not able to contact him.
Defendant argues the trial court’s hearsay ruling was an
unreasonable limitation on cross-examination of Detective
Jackson because investigators believed Detective Rozzi’s
42
documentation of the statement was sufficiently reliable to be
included in police reports and in affidavits in support of the
search warrant and wiretap they obtained. This misses the
point. Hearsay rules are markedly different for criminal trials as
opposed to warrant affidavits and, certainly, police reports. The
trial court was correct that Detective Jackson could not testify to
an out-of-court statement that was not an admission and that he
did not hear. (Evid. Code, § 1200 [hearsay, or “evidence of a
statement that was made other than by a witness while testifying
at the hearing and that is offered to prove the truth of the matter
stated,” is inadmissible].)
C
There was little disagreement between the parties during
trial over the pattern instructions that should be given to the
jury. The prosecution did object, however, to the defense’s
proposed special instruction on third-party culpability. As
drafted (and in most relevant part), that instruction would have
informed the jury that “[i]f after considering all the evidence,
including any evidence that another person committed the
offense, you have a reasonable doubt that the defendant
committed the offense, you must find him not guilty.” The trial
court ruled the instruction “would be fine if we had put on third-
party culpability evidence, but we did not. You were precluded
because of People versus Hall.”
As should be apparent from our discussion thus far, we
doubt there was sufficient evidence to merit giving the defense’s
requested third-party culpability pinpoint instruction. But even
assuming the contrary for argument’s sake, the trial court’s
refusal to give such an instruction was still harmless. Our
43
Supreme Court has observed that a third-party culpability
instruction of the type defendant requested in this case “add[s]
little to the standard instruction on reasonable doubt.” (People v.
Hartsch (2010) 49 Cal.4th 472, 504.) For that reason, the
Hartsch court held that “even if such instructions properly
pinpoint the theory of third party liability, their omission is not
prejudicial because the reasonable doubt instructions give
defendants ample opportunity to impress upon the jury that
evidence of another party’s liability must be considered in
weighing whether the prosecution has met its burden of proof.”
(Ibid.) Here, the trial court’s rejection of the defense’s proposed
third-party culpability instruction is harmless for precisely this
reason. (Ibid. [omission of a third-party culpability pinpoint
instruction, even if error, could not have affected the verdict
because “[i]t is hardly a difficult concept for the jury to grasp that
acquittal is required if there is reasonable doubt as to whether
someone else committed the charged crimes” and because “[t]he
closing arguments focused the jury’s attention on that point”].)
Defendant additionally contends that the trial court erred
by not giving an instruction he did not request. He maintains the
court should have instructed, sua sponte, on the lesser included
offense of voluntary manslaughter, predicated on either a heat of
passion or imperfect self-defense theory. We have no quarrel
with the proposition that a trial court generally does have a duty
to instruct sua sponte on lesser included offenses, but that duty
does not arise if the defense is inconsistent with the defendant’s
theory of the case. (See, e.g., People v. Nguyen (2015) 61 Cal.4th
1015, 1052 [“‘A trial court’s duty to instruct, sua sponte, on
particular defenses arises “‘only if it appears that the defendant
is relying on such a defense, or if there is substantial evidence
44
supportive of such a defense and the defense is not inconsistent
with the defendant’s theory of the case’”’”].) Because the thrust of
the defense in this case was mistaken identity and defendant
testified he wasn’t at the scene of the crime, a voluntary
manslaughter defense would be inconsistent with the defense
theory and an instruction was not required.
Indeed, the pertinent facts here are quite similar to the
facts in People v. Sinclair (1998) 64 Cal.App.4th 1012 (Sinclair), a
case that held the trial court had no duty to instruct sua sponte
on the lesser included offense of voluntary manslaughter on a
heat of passion or imperfect self-defense theory. (Id. at 1015.)
The Sinclair court held the trial court was not obligated to
instruct on voluntary manslaughter not just because the theories
of voluntary manslaughter were inconsistent with the defense
presented but because the defendant testified and completely
denied under oath any participation in the charged homicide.
(Id. at 1019-1020.) The same is, of course, true here.
D
To prevail on a claim of ineffective assistance of counsel, “a
defendant must show that his or her counsel’s performance was
deficient and that the defendant suffered prejudice as a result of
such deficient performance. (Strickland v. Washington (1984)
466 U.S. 668, 687-692[ ] [Strickland].) To demonstrate deficient
performance, defendant bears the burden of showing that
counsel’s performance ‘“‘“fell below an objective standard of
reasonableness . . . under prevailing professional norms.”’”’
[Citation.] To demonstrate prejudice, defendant bears the burden
of showing a reasonable probability that, but for counsel’s
45
deficient performance, the outcome of the proceeding would have
been different. [Citations.]
“As [our Supreme Court] ha[s] observed in the past, certain
practical constraints make it more difficult to address ineffective
assistance claims on direct appeal rather than in the context of a
habeas corpus proceeding. [Citations.] The record on appeal may
not explain why counsel chose to act as he or she did. Under
those circumstances, a reviewing court has no basis on which to
determine whether counsel had a legitimate reason for making a
particular decision, or whether counsel’s actions or failure to take
certain actions were objectively unreasonable. [Citation.]
“Moreover, we begin with the presumption that counsel’s
actions fall within the broad range of reasonableness, and afford
‘great deference to counsel’s tactical decisions.’ [Citation.]
Accordingly, we have characterized defendant’s burden as
‘difficult to carry on direct appeal,’ as a reviewing court will
reverse a conviction based on ineffective assistance of counsel on
direct appeal only if there is affirmative evidence that counsel
had ‘“‘no rational tactical purpose’”’ for an action or omission.
[Citation.]” (Mickel, supra, 2 Cal.5th at 198; see also id. at 198-
199 [“[I]neffective assistance of counsel claims are rarely
successful on direct appeal because the appellate record will often
not sufficiently reveal why the defense counsel acted or failed to
act on any given occasion”].)
Defendant argues his trial attorney was ineffective because
he did not object when the prosecution followed improper
procedure to refresh witness recollection and thereby was
permitted to read hearsay testimony of witnesses Tucker, Jones,
Pamela, and Goines into the record. Our Supreme Court,
however, has repeatedly held that “‘“[d]eciding whether to object
46
is inherently tactical, and the failure to object will rarely
establish ineffective assistance.”’” (See, e.g., People v. Arredondo
(2019) 8 Cal.5th 694, 711.) This is not one of the rare cases
where the absence of an objection establishes deficient
performance.
There are various legitimate reasons why defendant’s trial
attorney may have opted not to object to the prosecution’s method
of confronting witnesses with prior testimony or statements.
Counsel may have believed, particularly as to witness Tucker,
that the prosecution could lay a foundation to impeach the
witness with the prior testimony. Counsel may have determined,
as the prosecution affirmatively represented after the trial court
inquired what hearsay exception she was relying on even though
the defense was not objecting, that the prosecution would be able
to establish a foundation to read prior testimony as past
recollection recorded (Evid. Code, § 1237) and an objection would
simply be a waste of time. Or counsel may have desired not to
call further attention to the prior testimony with an objection or
may have had other strategic reasons for permitting the jury to
hear aspects of the prior testimony. These various plausible
legitimate reasons for not objecting preclude reversal for
ineffective assistance of counsel on this asserted ground. (People
v. Carter (2005) 36 Cal.4th 1114, 1189 [“If the record on appeal
sheds no light on why counsel acted or failed to act in the manner
challenged, an appellate claim of ineffective assistance of counsel
must be rejected unless counsel was asked for an explanation and
failed to provide one, or there simply could be no satisfactory
explanation”].)
Defendant also argues his trial attorney provided
ineffective assistance because he was “underprepared.” Several
47
of the reasons defendant gives for asserting his trial attorney was
underprepared, however, cannot be fully squared with the
appellate record.
Defendant gives the impression that his trial attorney
admitted on the record that he did not review the wiretapped
calls produced by the prosecution in discovery. To the contrary,
when asked directly in a hearing before opening statements
whether he had listened to the wiretap calls, defense counsel
replied he had.24 In addition, defendant testified his trial
attorney asked him to review numerous wiretap calls in
preparation for trial too.
Defendant also suggests his trial attorney was
underprepared because his production of defense discovery to the
prosecution was late and, as the trial court characterized it on at
least one occasion, outrageously late. Untimely production of
defense discovery, however, is not a reliable indicator of a defense
attorney who is unprepared and therefore ineffective. Late
production of defense discovery is also consistent with a prepared
attorney who makes a tactical judgment—albeit one not to be
condoned—that giving the prosecution less time to prepare for
defense witnesses and defense evidence is to the defense’s
advantage.
In a somewhat similar vein, defendant argues his trial
attorney was underprepared because he did not present a
24
The separate exchange with the court that defendant
highlights was defense counsel’s comment, before his client had
testified on direct examination, that he had not combed through
the hundreds of wiretap calls to flag those he would object to the
prosecution using when it came time to cross-examine his client.
48
“coherent defense”: changing his theory of the case and pursuing
a third-party culpability defense only after the prosecution rested
its case. Although defense counsel did tell the trial court (when
confronted with prosecution objections to late defense discovery)
that he decided to pursue a third-party culpability defense only
after Pamela testified in the prosecution’s case-in-chief, there are
other indications in the record that suggest counsel planned on
mounting such a defense all along but wanted to wait to reveal
the strategy for as long as possible.25 Even if not, it is not
uncommon that adjustments in strategy are required as the
evidence during a trial comes in. These sorts of tactical
judgments are also not a reliable indication of an underprepared
attorney.
As to the other indicia of underpreparedness counsel
cites—the failure to timely obtain experts to contradict the
prosecution’s transcript and to counter the prosecution’s gang
25
During Tucker’s testimony (before Pamela testified),
defense counsel asked Tucker if he remembered what defendant’s
brother’s name was. The trial court sustained the prosecution’s
relevance objection, the defense requested a sidebar, and when
the court asked defendant to explain the relevance, counsel
initially demurred saying, “I will tell the court in chambers.”
When the court insisted on an explanation at sidebar, counsel
replied only that “[defendant’s] brother’s name is mentioned all
through this.” Even before that, when the trial court first
mentioned at sidebar during Phillips’s testimony that it appeared
the defense wanted to pursue a third-party culpability theory (the
defense said it was not pursuing third-party culpability because
evidence that the crime may have been a “drug deal gone bad”
was just motive evidence), defense counsel did concede he “might
have somebody, [he] might, identify.”
49
expert—we do not believe the asserted failures were prejudicial
in the Strickland sense even were we to assume deficient
performance. The defense presented expert testimony on the
issues that mattered, the DNA on the bullet and the wounds on
defendant’s arm, and defendant testified to what he actually said
on wiretap call 260. With the defense case presented, there is no
reasonable probability that an audio or linguistics expert or a
defense gang expert would have produced a result more favorable
to defendant.
At bottom, and in view of the appellate record we have
(which reflects a successful defense motion to dismiss the jury
panel during voir dire, substantial cross-examination of
prosecution witnesses and demands for multiple Evidence Code
section 402 hearings, and presentation of a substantial defense
case), we see no basis to hold that defendant’s trial attorney was
underprepared to the point of being constitutionally ineffective.26
E
Returning to the issue of defendant’s claimed statement to
Detective Rozzi about the cause of his forearm wounds, defendant
claims the prosecution engaged in misconduct during its rebuttal
argument. Specifically, defendant complains the prosecution “in
closing statement . . . pretended that no evidence existed to show
[defendant] ever made a consistent statement to Detective Rozzi”
even though the prosecution “was well aware of the existence of
26
Our holding that no ineffective assistance of counsel has
been shown on this record encompasses the impact of the
asserted instances of deficient performance both individually and
cumulatively.
50
the official reports detailing [defendant’s] explanation for the
wound” and “similarly aware that search warrant affidavits by
Detective Jackson had acknowledged Detective Rozzi’s recitation
of those very facts.”27
This recounting of what occurred is stripped of some
relevant context. When questioned by the trial court, the
prosecution explained it had concerns about the accuracy of
Detective Rozzi’s notes such that it could not enter into a
stipulation, but we do not know the nature of the concerns. We
do know that the prosecution attempted, ultimately without
success, to contact Detective Rozzi in response to the court’s hope
that a stipulation would be possible. In addition, characterizing
the prosecution’s argument as “pretending” no evidence existed to
show defendant ever made a consistent statement to Detective
Rozzi perhaps goes too far. What the prosecution said, after
there had been repeated references to Detective Rozzi in the
defense closing was this: “Please, all of the evidence that came
in, all of the descriptions that came in, please read them back.
Please have them read back. I know . . . it causes [the court
reporter] work when we say ‘please read it back,” but please read
27
As a result of the defense’s filing of the new trial motion
below, we have in the appellate record a page of notes attached as
an exhibit to that motion that the defense represents are
Detective Rozzi’s notes of his physical inspection of defendant’s
body. Those notes refer to seeing only one wound on defendant’s
forearm (not two) and opine that wound looks like a gunshot
wound. The notes also state defendant claimed he sustained that
wound and another seen by Detective Rozzi as a result of a
“fight.” There is no reference to an ice pick or further elaboration
about the claimed fight.
51
it back, because what comes in is the evidence from the stand, not
what counsel might get up here and say, and, you know, this is
what was said, or, you know, the defendant told Detective Rozzi.
[¶] Who’s Detective Rozzi? Did you even hear his name other
than in closing? Please have it read back—”28
“‘[I]t is improper for the prosecutor to misstate the law
generally [citation], and particularly to attempt to absolve the
prosecution from its prima facie obligation to overcome
reasonable doubt on all elements [citation].’ [Citation.] Improper
comments violate the federal Constitution when they constitute a
pattern of conduct so egregious that it infects the trial with such
unfairness as to make the conviction a denial of due process.
[Citation.] Improper comments falling short of this test
nevertheless constitute misconduct under state law if they
involve use of deceptive or reprehensible methods to attempt to
persuade either the court or the jury. [Citation.]” (People v.
Cortez (2016) 63 Cal.4th 101, 130.)
We do not believe the record before us demonstrates use of
deceptive or reprehensible methods to persuade the jury (much
less a pattern of conduct that would constitute federal
constitutional error). Additionally, there is no reasonable
probability defendant would have obtained a more favorable
result if the prosecution had not implored the jury to read back
28
Defendant is correct when he states there had been a
reference to Detective Rozzi before closing argument. During
cross-examination, defendant testified: “The only officer I
remember questioning me about any injuries on my body was
[Detective] Rozzi, and he strip-searched me and questioned me
about every scar that I had on my body and I responded to it.”
52
the testimony to see if there were any references to Detective
Rozzi—or even if the jury had been informed defendant told
Detective Rozzi in 1987 that he sustained his forearm injury in
some unspecified fight. That sort of prior consistent statement by
defendant after his arrest was still susceptible of being viewed as
self-serving and would not have added much to his testimony in
his own defense at trial. Further, there was very strong evidence
pointing to a gunshot as the true cause of the wound: among
other things, the DNA evidence, the opinion testimony of Doctors
Choi and Russell, and Andre’s statement to Pamela that
defendant “got shot.”
F
Almost two years before defendant was sentenced, the
Legislature gave trial courts discretion “in the interest of
justice . . . at the time of sentencing, [to] strike or dismiss an
enhancement otherwise required to be imposed by” Penal Code
section 12022.5. (Pen. Code, § 12022.5, subd. (c); Stats. 2017, ch.
682, § 2). At sentencing, defendant did not ask the trial court to
strike the Penal Code section 12022.5 enhancement the jury
found true or object to its imposition.
“As a general rule, only ‘claims properly raised and
preserved by the parties are reviewable on appeal.’ [Citation.]”
(People v. Smith (2001) 24 Cal.4th 849, 852.) Our Supreme Court
adopted this waiver rule “‘to reduce the number of errors
committed in the first instance’ [citation], and ‘the number of
costly appeals brought on that basis’ [citation].” (Ibid.) In the
sentencing context, our highest court has “applied the rule to
claims of error asserted by both the People and the defendant.
[Citation.] Thus, all ‘claims involving the trial court’s failure to
53
properly make or articulate its discretionary sentencing choices’
raised for the first time on appeal are not subject to review.
[Citations.]” (Ibid.)
Because defendant failed to object to the Penal Code section
12022.5 enhancement or otherwise urge the trial court to exercise
its discretion under Penal Code section 12022.5, subdivision (c),
defendant’s argument on that ground presented for the first time
on appeal is forfeited.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
54