People v. Phillips CA1/1 ( 2021 )

Filed 9/8/21 P. v. Phillips CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent, A151534
v. (Contra Costa County
COBY JEROME PHILLIPS, Super. Ct. No. 05-150124-6-01)
Defendant and Appellant.
PUBLIC—REDACTS MATERIAL FROM SEALED RECORD1
Defendant Coby Jerome Phillips appeals from his conviction for first
degree murder and dissuading a witness from testifying. Defendant raises
multiple claims of instructional error, challenges the sufficiency of the
evidence supporting the dissuading a witness charges, and contends the trial
court erroneously excluded impeachment evidence concerning two witnesses
who testified at his trial. Defendant asks us to conduct an independent
review of documents provided in camera to the trial court to determine
whether records subpoenaed by the defense should have been disclosed to
The trial court sealed certain records discussed in this case, which
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were also filed under seal in this court. We have concurrently filed both
public (redacted) and sealed (unredacted) versions of this opinion. (Cal. Rules
of Court, rule 8.46(g)(1) & (2).) We order the unredacted version of this
opinion sealed.
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defense counsel. Defendant also argues his trial counsel rendered ineffective
assistance by failing to object to various instances of alleged prosecutorial
misconduct. Finally, defendant asks us to remand to allow the trial court to
exercise its discretion whether to strike the personal use of a firearm
enhancement and five-year prior conviction allegations under Senate Bill
No. 620 (2017–2018 Reg. Sess.) and Senate Bill No. 1393 (2017–2018 Reg.
Sess.), respectively.
We agree with defendant that the trial court prejudicially erred in
instructing the jury on count two, and that the case should be remanded to
allow the trial court to exercise its discretion with respect to the firearm and
prior serious felony conviction enhancements. Otherwise, we affirm the
judgment.
I. PROCEDURAL AND FACTUAL BACKGROUND
This case has a lengthy and complicated procedural history and factual
background and involves many witnesses and individuals not relevant to the
claims raised on appeal. In this background section, we summarize the facts
necessary to understand the claims asserted on appeal. In appropriate
sections of the discussion, we provide additional facts as necessary to analyze
particular claims.
A. The Charges
Defendant was first tried for Darryl Grockett’s murder in 2013. After a
mistrial was declared, the Contra Costa County District Attorney sought a
superseding indictment, charging defendant again with Grockett’s murder
and other crimes. Specifically, the January 2015 indictment charged
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defendant with murder (Pen. Code,2 § 187, subd. (a); count one), dissuading a
witness by force or threat (§ 136.1, subd. (c)(1); count two), conspiring to
dissuade a witness (§ 136.1, subd. (c)(2); count three), conspiracy to dissuade
a witness by force or threat (§§ 182, subd. (a)(1), 136.1, subd. (c)(1); count
four); custodial possession of a weapon (§ 4502, subd. (a); counts five to seven
& ten to twelve), conspiracy to commit murder (§§ 182, subd. (a)(1), 187;
count eight), and solicitation to commit murder (§ 653f, subd. (b); count nine).
A firearm enhancement was alleged under section 12022.53, subdivisions (b),
(d), and (e)(1) in count one, and enhancements under section 186.22,
subdivision (b)(1) for gang activity were alleged in counts one through nine.
Defendant was also charged with two prior “strikes” under sections 667 and
1170.12.
B. Darryl Grockett’s Murder
Darryl Grockett was a violent person, a drug dealer, a convicted felon,
and a member of the Aryan Brotherhood (AB). On October 7, 2004, his body
was found on a deserted gravel turnout on Crockett Boulevard, near the
intersection with Cummings Skyway. Contra Costa County Sheriff’s
Detective Shawn Pate arrived at the scene and discovered Grockett dead, on
his back in a pool of blood. Bullets were found on the ground underneath his
body. Grockett had 13 gunshot wounds, including 11 entry wounds to the
chest and abdomen, one wound to his right hand, and one wound that
entered his mouth and was fired from close range. Several of the gunshot
wounds were consistent with a person being shot while lying on their back,
and a report indicated two different guns may have been used. In each of his
2All further statutory references are to the Penal Code unless
otherwise indicated.
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two shirt pockets was a roll of $20 bills in the amount of $1,000 ($2,000 total).
A cell phone was recovered from his body at his autopsy.
A Chevrolet truck registered to an acquaintance of Grockett’s was also
found at the scene unlocked and with the keys in the ignition. Detective Pate
traced the registration to a Phyllis M. and then drove to Matt B.’s house
where he had previously seen cars registered in Phyllis M.’s name. Matt B.
was Grockett’s roommate. When Pate found Matt at the house and told him
that Grockett was dead, he seemed surprised and upset.
C. Defendant and His Relationship with Grockett
Defendant was a drug dealer and a friend of Grockett’s. Defendant did
not sell drugs to individuals on the street but was a wholesaler who sold to
other dealers. Generally, he trafficked in methamphetamine. Defendant’s
supplier was Jose Vega-Robles, also known as “Carlos” or “Calacas.”
Defendant was one of the founders and a leader of a gang called the
Family Affiliated Irish Mafia (FAIM). In 2004, FAIM had about 50 to 75
members, and its primary activity was the sale of drugs, mostly
methamphetamine. Other members of FAIM included Matt Donohue, Scott
Schweiger, Thomas “Bubba” Covey—one of the founders of FAIM, and
Bubba’s brother, Tim Covey.
Defendant and Grockett were old friends. Grockett attended
defendant’s wedding to Stacey T. in 2003, and attended defendant’s son’s
birthday party only a week before Grockett was murdered. One defense
witness, Tara S., testified that at the birthday party, defendant and Grockett
looked like “they were really good friends” and acted like family. Grockett
told her that he had known defendant for a long time and he “was like
family.” Another defense witness, Phyllis M., knew both defendant and
Grockett well. She used to babysit defendant and let Grockett drive two cars
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registered in her name. Phyllis M. also attended defendant’s son’s birthday
party. She agreed defendant and Grockett seemed to get along at the
birthday party and testified that neither Grockett nor defendant told her they
were having problems with the other.
Nonetheless, various other witnesses testified that Grockett and
defendant had “ ‘friction’ ” between them or had had a “ ‘falling out.’ ”
Defendant’s wife, Stacey T., was aware there were “some issues” between
defendant and Grockett over drugs and money. Defendant was wary of
Grockett, and in September or October 2004, defendant had a drug deal
pending with Grockett.
Ralph N., who had been in prison with both Grockett and defendant,
testified that defendant and Grockett had been friends, but everyone knew
that changed when Grockett put a gun to defendant’s head. Grockett also
told Ralph N. that he wanted to kill defendant. In 2004, defendant was
afraid of Grockett.
Scott Schweiger told Detective Pate that Grockett had stolen $30,000
from defendant.
D. October 7, 2004
1. Defendant’s and Grockett’s Phone Calls
On the day of Grockett’s murder, Grockett’s cell phone received calls
from defendant’s phone at 10:25 a.m., 3:45 p.m., 6:46 p.m., 7:04 p.m.,
7:07 p.m., and 7:15 p.m. When interviewed a couple of weeks after Grockett’s
death, defendant admitted he had a phone conversation with Grockett
around 7:00 p.m. on the night he died. Defendant said Grockett still owed
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him $2,000 on a $6,000 drug deal. In a different interview, defendant said he
learned of Grockett’s death from Matt B. the morning after he died.
2. Sally S. and Tara S.
Sally S. had become romantically involved with Grockett about a month
before his death. She was planning a big methamphetamine deal with
Grockett just before he died. On the night of October 7, 2004, Grockett came
over to Sally’s house with Tara S.3 to obtain the last of the $35,000 Sally
owed him for the drugs. At one point, Grockett went outside to take a phone
call, then told Sally and Tara he had to go. Tara had overheard Grockett on
the telephone giving someone directions, which she thought involved crossing
a bridge. Grockett told Tara she should go with him, then changed his mind
and said he would be right back. Tara thought he took a lot of money with
him when he left Sally’s house. After some time, Tara began to wonder
where Grockett was. Tara and Sally went to a bar. Tara became very upset
because she and Sally had not heard from Grockett and kept trying to call
him. Eventually, in a phone call between Tara and Matt B., Grockett’s
roommate, Matt told Tara and Sally that Grockett was dead.
3. Stacey T. and Jaime B.
On the evening of October 7, 2004, defendant borrowed an SUV from
his girlfriend, Joanna N., and drove his wife, Stacey T., from their home in
Vallejo to The Dead Fish restaurant in Crockett. There, defendant and
Stacey met Jose Vega-Robles, Jose’s girlfriend, Jamie B., and Jose’s cousin,
Josue Lomeli.4 Jamie and Stacey stayed at the restaurant while the three
Tara S., a defense witness at trial, had known Grockett for about two
3
years and had been romantically involved with him at times.
4 Jamie B. did not remember whether Josue was at the restaurant that
night.
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men left at around 7:00 p.m. in a blue Dodge pickup truck. Stacey knew they
were going to meet Grockett and was very nervous about the meeting because
she knew there was an issue between defendant and Grockett. Stacey told
Jamie that the men were going to murder someone. They were gone about 45
minutes to an hour.
When the men returned to the restaurant, Jose and Josue appeared
proud and excited.5 Defendant seemed nervous. Defendant told Stacey that
“ ‘we’ ” shot Grockett.
Defendant and Stacey then drove to Rodeo, where he took something
wrapped in a towel into a house. Stacey and defendant spent the night at a
hotel because they wanted to avoid going home where they anticipated
encountering police investigating the murder or Grockett’s friends.
Jamie B. later overhead defendant and Jose Vega-Robles talking about
having killed someone. Jose spoke in broken English, but Jamie B. could
understand him. He talked about having to drive away on a gravel road and
having to get the truck fixed. When Jose said that “a guy” was dead,
defendant did not respond.
Jose never told Jamie about a murder. She just knew something was
weird and put together that there must have been a plan to kill people rather
than a drug deal gone bad.
E. Defendant’s Confessions
1. Sergio R.
Sergio R. is Jose Vega-Robles’s brother. Sergio and Jose were in
business together and imported drugs through a connection with the Sinaloa
5 Jamie B. testified she did not remember if the three men returned to
the restaurant.
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cartel in Mexico. Sergio sold cocaine, and Jose sold methamphetamine and
cocaine. Sergio met defendant in 2002 or 2003 through Jose. Defendant did
drug deals with Jose, and Jose would sometimes trade drugs to defendant for
weapons.
Sergio R. testified he was in Mexico in 2004 when Grockett was killed.
He heard about it when he returned to the United States. His blue Dakota
pickup truck was missing when he came back from Mexico but was returned
to him a couple of weeks later. Jose said the truck had been at a body shop.
Jose explained that defendant’s friend was going to rob them of five pounds of
drugs in a meeting that happened near Cummings Skyway, and that
defendant had killed the man and Josue had shot up Sergio’s truck.
Sergio R. never discussed the Cummings Skyway shooting with
defendant. He did not remember previously testifying that defendant told
him about the killing in a Vallejo parking lot. After having his recollection
refreshed during a lunch break, Sergio remembered two conversations with
defendant—one at the house and one in a Petco parking lot—in which
defendant told Sergio that he had killed his friend because the friend was
going to rob him of five pounds of drugs. Defendant told him they burned
their clothing afterwards.
When Sergio R. testified at this trial, he was still facing criminal
charges, in Contra Costa County, of conspiracy to murder Grockett and two
other men, Jose H. and Marcelino Guzman-Mercado. He expected to be
absolved of these charges after testifying against defendant.
Sergio R. had also been arrested in 2005 and convicted of conspiracy to
sell drugs with Jose Vega-Robles and defendant. He was tried in Contra
Costa County with defendant and Bubba Covey. When defendant found out
that Sergio was cooperating with the police, he stopped talking to Sergio.
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Once, during a court proceeding, defendant surreptitiously showed Sergio a
picture of Sergio with information that he was an informant, in effect telling
Sergio he was a “rat.” Sergio was assaulted in jail the next day. After Sergio
gave a statement to the Drug Enforcement Administration (DEA), his
sentence of 15 years was reduced to 9 years based on his cooperation.
Sergio R. also testified that he had worked as an informant for
Richmond Police Officer Michael Wang. Wang and a DEA special agent,
Gina Giachetti, offered Sergio the possibility of a “green card” in exchange for
his cooperation on a drug investigation. The green card was important to
Sergio, because after it was revealed that he was cooperating with police, his
life would be in danger if he were deported to Mexico.
2. Ralph N.
Ralph N. testified in person in this case in October 2016, and Detective
Pate testified about an interview he had with Ralph in 2009 while
investigating the Grockett murder. In addition, the trial court admitted prior
testimony from previous hearings and trials related to Grockett’s murder.
Ralph admitted he had offered very different testimony on different
occasions.
a. Trial Testimony
At trial, Ralph N. testified he was a former member of the Nazi Low
Riders (NLR) gang, a Caucasian gang subservient to the AB. Ralph joined
the NLR in 1991 or 1992 when he was at the California Youth Authority.
Ralph dropped out of the NLR and went through the debriefing process in
2009. Because Ralph had dropped out of the NLR, he could be hurt if he were
discovered by the AB or the NLR. But Ralph also testified that now, 10 years
later, he was a “has-been” and no one would do anything to him because he
had dropped out.
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Ralph N. did not identify defendant at trial. He said he had heard of
defendant but did not know him. Ralph had heard of FAIM but did not know
anything about it. Ralph also did not know Grockett, though he had heard
his name at Pelican Bay State Prison (Pelican Bay). He did not know if
Grockett and defendant were friends; he had never talked to defendant about
Grockett; and defendant never told Ralph that he killed Grockett.
Ralph N. testified he was out of prison for about a month in September
and October 2004. He was selling methamphetamine during that time. He
did not get his meth from defendant.
Ralph N. acknowledged that he previously testified in May 2012,
December 2013, April 2013, and January 2015, and gave different answers at
different times.
b. Prior Statements and Testimony
i. Interview with Inspector Pate in 2009
Inspector Pate6 testified briefly about interviewing Ralph N. in prison
in 2009 while Pate was investigating the Grockett murder. Ralph told Pate
he was debriefing at the time, and Pate recorded the interview. Ralph
subsequently testified twice in court that he had lied in his interview with
Pate.
ii. Jose Vega-Robles’s Trial—May 2012
At the Jose Vega-Robles trial in May 2012, Ralph N. testified that he
had given a statement to Pate in 2009 that was not truthful. Ralph was an
NLR dropout, and was on the NLR “ ‘bad news list, wanted dead or alive.’ ”
Defendant shared a prison cell with Grockett at Pelican Bay. Ralph testified
By 2008, Shawn Pate had left the Contra Costa County Sheriff’s
6
Office and was working as an inspector with the district attorney’s office.
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that Ronnie Yandell, a high-status AB member, had ordered Grockett and
defendant to kill witnesses for him. Defendant and Grockett did not kill the
witnesses. Yandell learned they did not kill the witnesses, and by not killing
them, defendant “sealed his own fate.”
Ralph N. also testified that Grockett and defendant had a falling out
because defendant did not kill some witnesses in another case whom they
had been ordered to kill. Grockett told Ralph that he wanted to kill
defendant and told Ralph about putting a gun to defendant’s head in 2004.
Ralph testified that defendant did not have the AB’s permission to put a
shamrock tattoo on his face, and Ralph had been ordered to kill defendant
because of the unauthorized tattoo and because defendant did not do what he
was ordered to do.
Ralph N. did not talk with defendant about Grockett during 2004, and
defendant did not ask Ralph to help him “ ‘set up’ ” Grockett, nor tell Ralph
he wanted to get back at Grockett for pulling a gun on him. Defendant did
not tell Ralph on the phone that he had killed Grockett.
Ralph N. sold methamphetamine when he was out of prison in 2004,
but he did not get his drugs from defendant.
iii. Defendant’s First Trial—April and May 2013
At defendant’s first trial in April and May 2013, Ralph N. testified that
he had met defendant in jail 10 years before. Ralph knew Grockett but did
not know if Grockett knew defendant. Ralph did not talk with defendant
about Grockett pulling a gun on defendant, defendant did not say he wanted
to get Grockett, and Ralph did not warn Grockett about defendant.
Defendant did not admit he killed Grockett, and Ralph did not know who was
involved in Grockett’s death. He never met or was in communication with
Ronnie Yandell. Ralph said everything he told law enforcement was “ ‘a
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bullshit lie,’ ” and he did not know anything about FAIM or murders.
Everything he told law enforcement in 2009 was put together from things he
heard.
Ralph N. may have had a possible falling out with the NLR and AB
over not hurting defendant. Ralph’s brother, who was not involved in gangs
and crime, was threatened by the NLR and AB, and was killed in 2009. At
first, Ralph blamed defendant for his brother’s death, but later learned
defendant was not involved.
iv. Defendant’s Preliminary Hearing—December 2013
At defendant’s preliminary hearing in December 2013, Ralph N. said he
could not remember a rumor spreading through San Quentin State Prison
that defendant killed Grockett or telling law enforcement in 2009 that
members of the NLR wanted to kill defendant because Grockett was well
liked. Ralph did not remember Yandell asking him to kill defendant or
defendant asking him to set up Grockett so defendant could kill him.
v. Grand Jury Testimony—January 2015
At a grand jury proceeding in January 2015, Ralph N. testified that he
was a member of the NLR, that he had been in prison more than half his life,
and that he and defendant sold drugs and did a lot of crimes together.
Ralph N. knew about a conflict between Grockett and defendant—they
had a falling out when Grockett “ ‘wanted to do his own thing.’ ” Grockett
was a gangster who was not afraid. In 2004, defendant was scared of
Grockett. After Grockett died, defendant told Ralph that he had killed
Grockett.
Ralph testified he sold methamphetamine in October and November
2004 that he got from defendant.
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Ralph N. lied both during the Jose Vega-Robles trial and defendant’s
first trial when he said that everything he told Inspector Pate in 2009 was a
lie. He told the truth in his interview with Pate, but then felt “ ‘really
uncomfortable’ ” when he had to testify in court. He lied because he was
worried about something happening to his family.
3. Scot Schweiger
Testimony from a conditional examination of Scot Schweiger in 2009
was admitted because Schweiger had subsequently died. He testified
pursuant to a grant of use immunity. Schweiger was a FAIM member and
knew defendant and Bubba Covey.
When serving time at the state prison at Jamestown, Schweiger met
Matt Donohue, who asked him to join FAIM. Schweiger helped Donohue sell
drugs on the prison yard at Jamestown. When he was paroled, he met other
FAIM members, including defendant.
While visiting defendant’s house in Vallejo, Schweiger learned that
Grockett had been killed. Defendant walked with Schweiger out to the
middle of the street and told him he had killed Grockett. He asked Schweiger
to listen to what was being said in Santa Rosa and report back to defendant.
In a prior interview from 2007, Schweiger testified that defendant did
not actually say he had killed Grockett; rather, defendant said that Grockett
had gotten greedy over $30,000 and the look on defendant’s face told
Schweiger that defendant had killed Grockett.
F. Dissuading Ralph N.
Correctional Officer Cory Perryman testified as a gang expert for the
prosecution. Ralph N. was a validated NLR member who had dropped out of
the gang and completed the lengthy debriefing process. Information from a
debriefing could be dangerous for a dropout and his family. The penalty in
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the gang world for debriefing can range from death to being shunned. If
copies of Ralph N.’s debriefing document were being made and sent back out
of the facility, his life could be in danger. Even if he were out of prison,
distributing his debriefing would benefit FAIM by showing it could reach a
person outside of prison. Perryman also testified that if debriefing
paperwork gets out, it could encourage a person to change their testimony in
the interest of self-preservation.
Deputy Sheriff Gabriella Arnaudo worked in the classification unit of
the Martinez Detention Facility. On August 8, 2013, she was inspecting
incoming inmate mail as part of her duties. A letter addressed to defendant
caught her attention. The envelope had “ ‘legal mail’ ” written on it in
“Sharpie,” the address sticker looked homemade, and the attorney on the
return address had not visited defendant or represented him according to jail
records. Arnaudo opened the envelope looking for contraband, resealed it,
and took it to defendant. She asked defendant to open it in front of her. She
saw that one of the papers in the envelope said, “CDC Corrections” and
“confidential,” and had a photograph of Ralph N., whom she recognized as an
enemy of defendant. Ralph N. was not in custody in Contra Costa County at
the time.
Defendant told Arnaudo that his attorney, who was working for him on
a child custody case, was making copies for him. Asked why he was making
copies, defendant said, “[T]hat’s how paperwork gets out.” “Paperwork” in
jail lingo is written information that is damaging to someone. Arnaudo
confiscated one of the documents, which was Ralph N.’s debriefing document.
The parties stipulated that the attorney on the return address label
was “deemed to have testified and that she testified” that neither she nor
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anyone associated with her law firm made the envelope seized which
contained the Ralph N. debriefing document.
G. Conviction and Sentencing
Defendant eventually proceeded to trial on counts one through three
and five through nine.7 The jury returned guilty verdicts on all counts and
found all enhancements true, except for the recidivist enhancements. On
May 26, 2017, the trial court found one “strike” prior allegation true. The
trial court granted a new trial on counts eight and nine.
Defendant was sentenced to a term of 80 years to life, consecutive to a
determinate term of 25 years.
II. DISCUSSION
A. Imperfect Self-defense Voluntary Manslaughter Instruction
1. Additional Background
Defendant first contends the trial court erred by failing to instruct the
jury on the lesser included crime of voluntary manslaughter based on
imperfect self-defense. When defendant’s trial counsel requested such an
instruction, the trial court concluded there was insufficient evidence to
warrant it. In making its ruling, the court stated:
“I just don’t think there is any evidence. I honestly don’t think there is
any evidence that there was either defense or, you know, voluntary, based
upon heat of passion or anything else. Because there is circumstantial
evidence at the scene, in the Court’s view, the circumstantial evidence
supports one conclusion, that somebody went there to kill Darryl Grockett
and did a good job of killing him by shooting him numerous times, a number
of times while he’s lying on the ground helpless. [¶] In other words, if he was
7 Count four was dismissed as superfluous to count three.
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still alive finishing the job when there was no possibility of somebody
believing that self-defense was possible at that point. So he is shot. [¶] In the
Court’s view whether or not the first bullet hits him while there is some
possibility of self-defense there are 11 others that continue to hit him, many
of which happened after he’s lying on the ground face up in all likelihood and
there is no contradictory evidence, helpless and incapacitated, while
somebody pumps additional bullets into him. [¶] If somebody had an
available self-defense at some point in that process, they certainly didn’t have
it by the time they shot bullets 12 and 13 into him.”
2. Analysis
“An instance of imperfect self-defense occurs when a defendant acts in
the actual but unreasonable belief that he or she is in imminent danger of
great bodily injury or death. [Citation.] Imperfect self-defense differs from
complete self-defense, which requires not only an honest but also a
reasonable belief of the need to defend oneself. [Citation.] It is well
established that imperfect self-defense is not an affirmative defense.
[Citation.] It is instead a shorthand way of describing one form of voluntary
manslaughter. [Citation.] Because imperfect self-defense reduces an
intentional, unlawful killing from murder to voluntary manslaughter by
negating the element of malice, this form of voluntary manslaughter is
considered a lesser and necessarily included offense of murder.” (People v.
Simon (2016) 1 Cal.5th 98, 132 (Simon).)
“A trial court has a sua sponte duty to instruct the jury on a lesser
included uncharged offense if there is substantial evidence that would
absolve the defendant from guilt of the greater, but not the lesser, offense.
[Citation.] Substantial evidence is evidence from which a jury could conclude
beyond a reasonable doubt that the lesser offense was committed.
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[Citations.] Speculative, minimal, or insubstantial evidence is insufficient to
require an instruction on a lesser included offense.” (Simon, supra, 1 Cal.5th
at p. 132.)
We review de novo a trial court’s decision not to instruct the jury on
imperfect self-defense.8 (Simon, supra, 1 Cal.5th at p. 133.) In so doing, we
evaluate the evidence in the light most favorable to the defendant. (See
People v. Woods (2015) 241 Cal.App.4th 461, 475.)
A defendant acts in imperfect self-defense when (1) defendant actually
believes that he or she is in imminent danger of being killed or suffering
great bodily injury, and (2) he or she actually believes that the immediate use
of deadly force is necessary to defend against the danger, but (3) at least one
of those beliefs is unreasonable. (CALCRIM No. 571; People v. Randle (2005)
35 Cal.4th 987, 996–997, overruled on another ground in People v. Chun
(2009) 45 Cal.4th 1172, 1201.) Our Supreme Court has explained that the
doctrine of imperfect self-defense “is a ‘ “narrow” ’ one and ‘will apply only
when the defendant has an actual belief in the need for self-defense and only
when the defendant fears immediate harm that “ ‘ “must be instantly dealt
with.” ’ ” ’ ” (People v. Landry (2016) 2 Cal.5th 52, 97–98.)
8 In his opening brief on appeal, defendant argues that the trial court
erred by failing to instruct on imperfect self-defense and does not address
perfect self-defense. The Attorney General argues that the trial court did not
err in refusing to instruct on either perfect or imperfect self-defense. Because
defendant did not raise an issue with respect to perfect self-defense in the
opening brief, we do not address whether the trial court should have
instructed on that theory. We note, however, that both perfect and imperfect
self-defense require substantial evidence that defendant actually believed in
the need to defend himself against imminent peril to life or great bodily
injury—evidence which, as discussed below, we conclude was not present in
this case. (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.)
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Defendant did not testify at trial and made no out-of-court statements
indicating that he believed lethal force was necessary to defend his life or
avoid great bodily injury. (See, e.g., Simon, supra, 1 Cal.5th at p. 134.)
While that fact alone is not dispositive, there must be other substantial
evidence of defendant’s state of mind. Such evidence is missing here.
Defendant points to substantial evidence in the record that Grockett
had a reputation for violent behavior. Grockett was usually armed, had shot,
stabbed, and attacked people, and was a member of the AB, a gang that is
well known for violent acts. Defendant also cites Ralph N.’s testimony that
Grockett held a gun to defendant’s head at some point in 2004, the AB had
ordered a hit on defendant, and Ralph’s understanding that defendant was
scared of Grockett.9 But the fear necessary to support an imperfect self-
defense instruction must be of imminent harm and cannot be based upon
generalized fear or past threats or assaults. (People v. Steskal (2021)
11 Cal.5th 332, 345–346 (Steskal) [evidence of defendant’s ongoing fear of law
enforcement alone did not constitute substantial evidence he shot officer
because he feared “ ‘a risk of imminent peril’ ”]; People v. Manriquez (2005)
37 Cal.4th 547, 581–582 (Manriquez) [evidence defendant may have feared
some future harm not sufficient to require instruction on imperfect self-
defense].) While defendant presented evidence of Grockett’s violent nature
and past threats, there was no evidence defendant actually believed he was
9 The extent to which this testimony showed defendant feared Grockett
is unclear. Ralph N. testified the gun incident between defendant and
Grockett “ ‘would upset anybody’ ” but denied that defendant told Ralph he
was bothered by it. Ralph in fact testified defendant “ ‘never even really
talked about it to me’ ” and did not say one word to him about the incident.
And while Ralph testified defendant “ ‘absolutely’ ” was scared of Grockett in
2004, he could not remember the content of his conversation with defendant.
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in danger or was afraid when he and the others met Grockett at Cummings
Skyway.10
Defendant also relies on evidence that Grockett said he wanted to kill
defendant. But that testimony came from Ralph N., who said Grockett told
Ralph that. There was no evidence that defendant knew Grockett said he
wanted to kill defendant.
The only other evidence about what defendant was feeling or thinking
before the murder came from Sergio R., who testified that both his brother
and defendant told him that defendant killed Grockett because he was going
to rob them of five pounds of drugs. Importantly, Sergio’s testimony
contained no suggestion that defendant thought he was in mortal danger and
needed to use lethal force to protect himself from Grockett. Even if jurors
believed that Grockett intended to rob defendant and Vega-Robles, there is
no evidence from which jurors could make a reasonable, as opposed to
speculative, finding as to defendant’s state of mind when he shot Grockett.11
(Simon, supra, 1 Cal.5th at p. 132 [“Speculative, minimal, or insubstantial
evidence is insufficient to require an instruction on a lesser included
offense.”].)
Nor does evidence concerning the circumstances at Cummings Skyway
support an inference that defendant believed he needed to use deadly force to
10Indeed, other evidence in the record suggested to the contrary. Two
witnesses testified Grockett and defendant did not seem to have any
problems with one another when they met at defendant’s son’s birthday party
the week before the murder, and when interviewed, defendant said he called
Grockett on the day of the murder to collect $2,000 Grockett owed him.
11 Indeed, defense counsel conceded as much at trial, saying to the trial
court: “Everything is speculation as to what [defendant] was thinking or why
he did it. . . . there really is not evidence other than there was a shooting.”
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defend himself from Grockett. Grockett was shot 13 times in the chest,
abdomen, and mouth, and some of the shots entered his body while he was
already lying on the ground. No gun was found on Grockett’s person or at the
scene, and evidence was presented that defendant and Josue Lomeli were
both armed. Although defendant cites to evidence Grockett tried to get up
after being shot six times, that fact alone does not suggest a need for self-
defense.
Defendant contends the trial court erred in focusing on the number of
shots fired and Grockett’s position on his back, because the trial court
“agglomerated the mental states of all three participants in the shooting
based on the acts that, reasonably, were not attributable to all three.”
Defendant contends that because there is insufficient evidence of who fired
which shots and what their respective states of mind were, the jury may have
concluded that he lacked malice, and under that scenario, he would have had
an imperfect self-defense claim not shared by his coperpetrators. But the
absence of evidence about who fired shots in what order does not constitute
substantial evidence defendant actually believed he was in imminent danger.
Finally, defendant contends other circumstantial evidence supports the
giving of a self-defense instruction because Grockett’s body was found 20 feet
from his pickup truck. If the killing had been preplanned, his body “more
likely” would have been found close to the truck because it would be “more
logical” for defendant, Jose Vega-Robles, and Josue Lomeli to shoot him as he
emerged from the truck, or if Grockett had gotten there first, for him to wait
closer to his truck. Likewise, defendant argues, the bullet holes put in Sergio
R.’s blue pickup truck by Josue suggest that Grockett was between Josue and
his getaway vehicle at the time of the shooting. But both of these conclusions
are pure speculation and offer no support for a theory that defendant felt he
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was in actual, imminent, mortal danger at the time he shot Grockett.
(Steskal, supra, 11 Cal.5th at p. 345 [trial court need not give instruction
based solely on speculation]; People v. Davis (2013) 57 Cal.4th 353, 360
[reasonable inference may not be based on suspicion, imagination,
speculation, supposition, surmise, conjecture, or guesswork].) Because no
substantial evidence supports a conclusion defendant possessed an actual but
unreasonable belief in imminent danger of death or great bodily injury, the
trial court did not err in refusing to instruct on imperfect self-defense.
In any event, we conclude any possible error was harmless under either
Chapman v. California (1967) 386 U.S. 18, 24, or People v. Watson (1956)
46 Cal.2d 818, 836. “The jury’s verdict finding defendant guilty of the first
degree murder of [Grockett] implicitly rejected defendant’s version of the
events, leaving no doubt the jury would have returned the same verdict had
it been instructed regarding imperfect self-defense.” (Manriquez, supra, 37
Cal.4th at p. 582.) In determining that the murder was willful, deliberate,
and premeditated, the jury necessarily found that defendant carefully
weighed his decision to kill Grockett, a finding inconsistent with defendant
having an actual but unreasonable belief that he needed to kill to defend
himself. The jury also found true the allegation that the murder was
committed for the benefit of a criminal street gang, with the specific intent to
promote, further, and assist in the gang members’ criminal conduct, a finding
at odds with a notion defendant killed Grockett because he feared for his life.
Thus, even if we assume the failure to instruct on imperfect self-defense
violated his constitutional rights, the error was harmless.
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B. Exclusion of Impeachment Evidence
Defendant contends the trial court erred by excluding specific
impeachment evidence for two of the prosecution’s witnesses and that he was
prejudiced by the error.
1. Impeachment of Stacey T.
On redirect examination, Stacey T. testified that shortly after
Grockett’s death, defendant went to jail. While defendant was in jail, Tim
Covey moved in with Stacey, and at some point, they started a romantic
relationship. In 2006, when defendant was out of jail, he told Stacey he went
and “shot up” Tim Covey’s mother’s house. During the incident, a bullet
defendant fired hit defendant in the buttocks. He told Stacey a bullet must
have ricocheted and hit him. He had someone remove the bullet. On recross-
examination, when asked to describe how big his scar was, Stacey testified
she did not know because she never looked at defendant’s “butt.” She denied
that she made up the story.
Defense counsel sought to introduce photographs of defendant’s
buttocks to demonstrate that he did not have a scar. The trial court excluded
the evidence. In explaining its ruling, the court said: “That whole issue was
a collateral issue in this case, far removed from any of the sort of core issues
or evidence in this particular case, whether [Stacey T.] was right or wrong is
of no consequence, given all of the other information in the record that you
have in terms of addressing her credibility. [¶] The Court’s view [is that] it’s a
minor point. [¶] Number two, [the photographer] might say that I don’t think
there is a scar there. We’re talking about a particular kind of injury, a bullet
wound. I have no idea whether or not bullet wounds look like other scars
that people are familiar with from, let’s say, large laceration [sic] or things
where stitches are placed into the skin and remain, the marks remain for
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years and years. And I don’t think a layperson can fill that gap. [¶] I think
we would have to have one or more experts examine these photographs
and/or [defendant] to definitely say whether or not he does or doesn’t have
possibly a scar from a bullet injury. [¶] And so it’s . . . the subject of expert
testimony, not lay testimony, and I also don’t believe that the jury is in any
greater position in the absence of there being any dermatologist or trained
physicians on the jury to make any assessment as to whether or not those
photographs display that sort of injury, either particularly given the length of
time between when the incident happened and the taking of photographs,
which is well over [10] years.”
The trial court denied defendant’s motion to strike Stacey T.’s
testimony, ruling that mistakes in witness testimony are not uncommon and
that “[i]n my view, whether or not she’s correct on that point has nothing to
do with her overall credibility as a witness on the charged matters.” The
court elaborated that “[t]o the extent that counsel raises in their closing
argument whether or not her testimony hinges on whether or not [defendant]
has a scar on his derriere, it just seems to me that is nitpicking to the [nth]
degree. It’s just not even close to being important or significant in this case.
So that’s the reason why I’m excluding it.”
Defendant argues the trial court erred in excluding the impeachment
evidence because Stacey T. presented herself as a “reformed” woman, who
may have told lies in the past, but was telling the truth now. Defendant
asserts, to the extent the defense confronted Stacey T. with evidence
regarding false statements she had made in the past, Stacey could simply
point to the fact that she was a changed woman. But physical evidence that
she was still lying (i.e., that defendant had no scar from a bullet removal)
would make her much less believable.
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“We review a trial court’s decision to exclude evidence for abuse of
discretion.” (People v. Peoples (2016) 62 Cal.4th 718, 745.) “The decision to
exclude evidence ‘will not be disturbed except on a showing [that] the trial
court exercised its discretion in an arbitrary, capricious, or patently absurd
manner that resulted in a manifest miscarriage of justice.’ ” (Ibid.)
Defendant argues we should review the trial court’s decision de novo
because it did not base its decision on Evidence Code section 352, but stated
the evidence was being excluded because it was a “collateral issue.”12
Defendant contends this was an error of law because under Evidence Code
section 780, evidence on a collateral matter may be relevant and admissible
to impeach a witness’s credibility. Evidence Code section 780, however, does
not mandate the admissibility of evidence of collateral matters for
impeachment purposes. (People v. Thornton (2007) 41 Cal.4th 391, 428.) As
with all relevant evidence, the trial court has discretion to admit or exclude
such evidence. (Evid. Code, § 352; Thornton, at p. 428; People v. Rodriguez
(1999) 20 Cal.4th 1, 9.)
The trial court did not abuse its discretion by refusing to admit
photographs of defendant’s buttocks. “ ‘[T]he latitude [Evidence Code]
section 352 allows for exclusion of impeachment evidence in individual cases
is broad. The statute empowers courts to prevent criminal trials from
12 Defendant argues “[t]here was no mention of Evidence Code
section 352, weighing, prejudice, or probative value by the trial court or
either party.” It is well established, however, that a court making a ruling
under Evidence Code section 352 need not expressly state it is weighing
probative value against prejudice (or even state it has done so). (See People
v. Williams (1997) 16 Cal.4th 153, 213; People v. Ayala (2000) 23 Cal.4th 225,
301 [trial court “[i]mplicitly” ruled that evidence would “ ‘mislead[ ] the jury’ ”
under Evid. Code, § 352, because it would be confusing to appear to place
witness on trial with side issues regarding credibility].)
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degenerating into nitpicking wars of attrition over collateral credibility
issues.’ ” (People v. Ayala, supra, 23 Cal.4th at p. 301.) Here, the trial court
reasonably determined that any evaluation whether or not defendant had
scarring consistent with a 10-year-old bullet wound would likely require
expert testimony and result in a mini-trial on a collateral issue ostensibly
related to Stacey T.’s credibility. Moreover, the relevance of such evidence
was minimal, as Stacey testified only that defendant told her this story and
she never actually saw the wound on defendant’s buttocks. She thus had no
personal knowledge whether he was injured. Considering the minimal
probative value of the evidence and the likelihood it would mislead the jury
and waste time, the trial court did not abuse its discretion.
We also reject defendant’s claim that the exclusion of the Stacey T.
impeachment evidence violated his constitutional rights. The “routine
application of provisions of the state Evidence Code law does not implicate a
criminal defendant’s constitutional rights.” (People v. Jones (2013) 57 Cal.4th
899, 957.) Because the trial court appropriately exercised its discretion to
exclude the photographs of defendant’s buttocks, defendant’s constitutional
claim fails.
2. Impeachment of Jamie B.
Defendant next contends the trial court’s exclusion of a statement by
Jamie B. regarding a different murder case was error.
During trial, evidence was entered regarding Stacey T.’s role in the
attempted shooting of Thomas “Bubba” Covey by FAIM member Joe Verducci
in January 2007. Bubba had been dating Stacey’s sister, but the relationship
soured. Bubba had beaten Stacey’s sister “a lot,” and threatened to bash her
one-year-old son’s head in with a bat. Defendant helped the sister move out
of Bubba’s house, which created a separation between defendant and Bubba.
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In January 2007, Bubba was making threatening calls to Stacey T.’s
sister from a bar near Stacey’s house. Defendant called Stacey T. on the
phone from jail. When Stacey told defendant about Bubba’s calls, defendant
told her to contact Verducci and tell him that he should handle it. Stacey
relayed the message to Verducci. Stacey testified she regretted doing that,
and that when she called Verducci to give him defendant’s message, she
knew she was passing an instruction to have Bubba hurt. Verducci and
Stacey’s brother went to the bar, where Verducci shot and killed a
bystander.13
Jamie B. testified that she “believe[d]” she was at Stacey T.’s
apartment on the night Verducci killed someone. During a break in her
testimony, defense counsel sought to introduce a statement Jamie made to
law enforcement that defendant was also at Stacey T.’s apartment that night,
though defendant was in jail at the time. Defense counsel argued the
statement was relevant to show that Jamie B. “was confabulating.” Although
counsel said he would not “call it lying, she was relating events as fact, in
terms of a murder case that were totally absurd.”
The trial court excluded the statement, noting that ample evidence had
been provided the jury to allow them to assess Jamie B.’s credibility,
including a similar type of statement that had just come out in Jamie B.’s
testimony as to whether defendant was present at The Dead Fish on the
night of the Grockett murder. The court also observed that there had already
been “three or four trials” of the Verducci murder case, and “[w]hether or not
[Jamie B. had] been entirely consistent with regard to every fact relating to
that trial” was “extraneous” to this case. The court expressly ruled that
13 At the time of this trial, Verducci was in prison for that killing.
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“[u]nder [Evidence Code section] 352, it’s a collateral matter that doesn’t
relate to this case and it doesn’t have much to do with her credibility in this
case.” Rejecting the prospect of having to call various witnesses to establish
Jamie B.’s recollection was false, the trial court remarked that such
impeachment would in effect be “trying the Verducci case.”
Defendant contends the trial court erred because it failed to consider
whether the presentation of this evidence, which would require three or four
questions at the most, would involve an undue consumption of time, confuse
the issues, or mislead the jury. Because Jamie B. was the only witness who
testified there was a plan to murder Grockett, defendant argues the value of
the impeachment evidence was “great.”
As discussed above, we review a trial court’s decision to exclude
evidence under Evidence Code section 352 for abuse of discretion. (People v.
Peoples, supra, 62 Cal.4th at p. 745.) Here, the trial court appropriately
considered that the jury already had ample evidence relating to Jamie B.’s
credibility. The jury had also just heard similar impeachment evidence
regarding Jamie B.’s recollection that defendant was not at The Dead Fish on
the night of the Grockett murder—evidence which, unlike the Verducci
evidence, related directly to this case. Evidence regarding defendant’s
physical presence at Stacey T.’s apartment on the night of the Verducci
killing had minor probative value and exploring the source of Jamie B.’s
confusion on that issue would have added even more unnecessary complexity
to this already complicated trial. The trial court did not err in excluding the
evidence. We likewise reject defendant’s argument that the exclusion of the
Jamie B. impeachment evidence violated his federal constitutional rights.
(See People v. Jones, supra, 57 Cal.4th at p. 957.)
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C. Dissuading a Witness Counts
In counts two and three, defendant was charged with, respectively,
dissuading a witness, Ralph N., by force or threat (§ 136.1, subd. (c)(1)), and
dissuading a witness, Ralph N., in furtherance of a conspiracy (id.,
subd. (c)(2)). Both counts required that defendant prevent or dissuade a
witness from testifying or attempt to do so.14 Defendant contends insufficient
evidence supports his convictions and raises several claims of instructional
error with respect to counts two and three.
1. Sufficiency of the Evidence
Defendant first contends the evidence presented at trial was
insufficient to support his convictions on counts two and three. He argues
although evidence was introduced that he was preparing to dissuade
Ralph N. from testifying, there was no evidence that he attempted to do so.
“ ‘In reviewing a sufficiency of the evidence challenge, we view the
evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.’ ” (People v. Davis, supra, 57 Cal.4th at
p. 357.)
14 Section 136.1, subdivision (c) states in relevant part: “Every person
doing any of the acts described in subdivision (a) or (b) knowingly and
maliciously under any one or more of the following circumstances, is guilty of
a felony punishable by imprisonment in the state prison for two, three, or
four years under any of the following circumstances: [¶] (1) Where the act is
accompanied by force or by an express or implied threat of force or violence,
upon a witness or victim or any third person or the property of any victim,
witness, or any third person. [¶] (2) Where the act is in furtherance of a
conspiracy.” Subdivision (a) proscribes “prevent[ing] or dissuad[ing]” or
“attempt[ing] to prevent or dissuade[,] any witness or victim from attending
or giving testimony at any trial, proceeding, or inquiry authorized by law.”
(§ 136.1, subd. (a).)
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Preparation and planning for a crime alone are insufficient to establish
guilt for the attempted commission of the crime. “ ‘It is settled that an
attempt to commit a crime is compounded of two elements, viz., intent and a
direct ineffectual act done toward its commission.’ ” (People v. Memro (1985)
38 Cal.3d 658, 698 (Memro), overruled on other grounds in People v. Gaines
(2009) 46 Cal.4th 172, 181, fn. 2.) “ ‘[T]here is a material difference between
the preparation antecedent to an offense and the actual attempt to commit it.
The preparation consists of devising or arranging the means or measures
necessary for the commission of the offense, while the attempt is the direct
movement toward its commission after the preparations are made. . . .’
[Citations.] [¶] . . . [A]n attempt, as distinguished from acts preparatory to
that offense, requires ‘some appreciable fragment of the crime [be]
accomplished.’ ” (Memro, at p. 698.) “When a defendant acts with the
requisite specific intent, that is, with the intent to engage in the conduct
and/or bring about the consequences proscribed by the attempted crime
[citation], and performs an act that ‘go[es] beyond mere preparation . . . and
. . . show[s] that the perpetrator is putting his or her plan into action’
[citation], the defendant may be convicted of criminal attempt.” (People v.
Toledo (2001) 26 Cal.4th 221, 230.)
“As simple as it is to state the terminology for the law of attempt, it is
not always clear in practice how to apply it. As other courts have observed,
‘ “[m]uch ink has been spilt in an attempt to arrive at a satisfactory standard
for telling where preparation ends and attempt begins.” ’ ” (People v.
Superior Court (Decker) (2007) 41 Cal.4th 1, 8.) “Although a definitive test
has proved elusive,” our Supreme Court has “long recognized that ‘[w]henever
the design of a person to commit crime is clearly shown, slight acts in
furtherance of the design will constitute an attempt.’ ” (Ibid.; People v. Dillon
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(1983) 34 Cal.3d 441, 455 [“the plainer the intent to commit the offense, the
more likely that steps in the early stages of the commission of the crime will
satisfy the overt act requirement”].)
As defendant apparently concedes, his statement to Deputy Arnaudo
that “that’s how paperwork gets out” was substantial evidence of his intent to
dissuade Ralph N. from testifying. Thus, the only question before us is
whether the evidence was sufficient to convince the jury that slight acts in
furtherance of defendant’s design had occurred. In addressing a challenge to
the sufficiency of the evidence, we “must examine the whole record in the
light most favorable to the judgment” and “presume[ ] in support of the
judgment the existence of every fact the trier could reasonably deduce from
the evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.)
Upon our review of the record, we conclude sufficient evidence supports
defendant’s convictions on counts two and three. Arnaudo had defendant
open the suspicious “legal mail” envelope in front of her and saw a
confidential document from the California Department of Corrections and
Rehabilitation with Ralph N.’s photograph among the papers inside. When
she asked defendant why his attorney was sending him information about
another inmate, defendant told her he was having his attorney make copies
because “that’s how paperwork gets out.” The parties stipulated that the
attorney listed on the return address was not defendant’s attorney. From
Arnaudo’s testimony, the jury could reasonably infer that defendant had
access to Ralph N.’s debriefing report, and had taken steps to distribute it by
having copies made outside of jail by someone who was not his attorney. This
evidence, combined with the clear evidence of defendant’s intent to distribute
the debriefing report, sufficed to show he was making a direct movement
toward commission of the offense.
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Arnaudo also testified that she understood “paperwork” to be damaging
information on a person, and she confiscated the papers to protect Ralph N.
Correctional Officer Perryman testified that if copies of Ralph’s debriefing
document were being made and sent out, it could be dangerous for him and
his family, and that if paperwork got out, it could also encourage a person to
change their testimony. The jury heard extensive evidence about Ralph’s
inconsistent testimony in prior trials and hearings. They also heard him
testify in person at this trial that he did not know defendant or Grockett and
heard him deny that defendant told Ralph he killed Grockett. Collectively,
this evidence supported the prosecution theory that defendant attempted to
dissuade Ralph N. from testifying against defendant.
Relying heavily on People v. Luna (2009) 170 Cal.App.4th 535,
defendant argues the evidence in this case shows at most preparation, and
not an actual attempt to dissuade Ralph N. from testifying. In Luna, the
defendant was convicted of attempting to manufacture a controlled
substance. A police officer had stopped the defendant’s vehicle in a traffic
stop, and after a consensual search, discovered all of the equipment necessary
to manufacture concentrated cannabis, or hashish. (Id. at pp. 537–538.) The
only thing missing was a sufficient quantity of marijuana to begin
manufacturing, though the defendant had $1,200 in cash he could use to
purchase marijuana. The defendant testified at trial, admitting he
purchased the equipment with intent to manufacture hashish. (Id. at
pp. 538–539.) Reasoning that the defendant had not assembled the
manufacturing device and had yet to obtain a sufficient quantity of
marijuana to begin manufacturing, the appellate court concluded the
evidence was insufficient to show attempt because it revealed only that the
defendant was “engaged in preparatory acts” and there was “a complete
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inability to take even initial steps toward producing the finished product.”
(Id. at p. 543.)
Here, by contrast, defendant was not missing anything he needed to
take steps toward dissuading Ralph N. from testifying. Though defendant
contends he “was caught while obtaining or arranging the means for the
commission of the crime,” his statements to Arnaudo support an inference he
or his associates already had access to a copy of Ralph N.’s debriefing report,
and defendant told her he was having copies made because “that’s how
paperwork gets out.” Several witnesses testified to the danger for an inmate
in having their debriefing “paperwork” distributed. As our Supreme Court
has emphasized, “ ‘[w]henever the design of a person to commit a crime is
clearly shown, slight acts done in furtherance of that design will constitute an
attempt, and the courts should not destroy the practical and common-sense
administration of the law with subtleties as to what constitutes preparation
and what constitutes an act done toward the commission of the crime.’ ”
(Memro, supra, 38 Cal.3d at p. 698.) Construing the evidence, as we must, in
the light most favorable to the verdict, we conclude sufficient evidence
supported defendant’s convictions for attempting to dissuade and conspiracy
to dissuade a witness.
2. Jury Instructions
Defendant raises three claims of instructional error with regard to the
dissuading a witness counts. We address each in turn.
a. CALCRIM No. 2622
As noted, section 136.1 applies to any person who “[k]nowingly and
maliciously attempts to prevent or dissuade any witness or victim from
attending or giving testimony at any trial.” (§ 136.1, subd. (a)(2), italics
added.) The jury was instructed with a modified version of CALCRIM
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No. 2622, quoted in relevant part, as follows: “The defendant is charged in
Count Two with Intimidating a Witness in violation of Penal Code
section 136.1[, subdivision] (c)(1). [¶] To prove that the defendant is guilty of
this crime, the People must prove beyond a reasonable doubt that: [¶] 1. The
defendant maliciously tried to prevent or discourage Ralph [N.] from giving
testimony at trial in the case of People v. Coby Phillips.” (Italics added.) As
already discussed, an attempt to commit a crime consists of two elements: a
specific intent to commit the crime, and a direct but ineffectual act toward its
commission. (§ 21a.) Defendant argues the jury instruction inappropriately
substituted the word “tried” for “attempted” and that the jury was not
instructed on the elements of attempt as they relate to counts two and three.
Though defendant did not request such an instruction, he claims any error
was not forfeited because the error affected his substantial rights.
If a trial court gives an instruction that “is potentially ambiguous or
misleading, the instruction is not reversible error unless there is a reasonable
likelihood that the jurors misunderstood or misapplied the pertinent
instruction.” (People v. Iboa (2012) 207 Cal.App.4th 111, 121; People v. Avena
(1996) 13 Cal.4th 394, 416–417.) Here, there is no reasonable likelihood that
the jury misunderstood or misapplied CALCRIM No. 2622. The common
understanding of the word “tried” is the equivalent of “attempted” and
denotes an effort designed to achieve a goal. (See People v. Cain (1995)
10 Cal.4th 1, 44.) Preparation, in common understanding, does not qualify as
trying or attempting. Thus, there was no realistic danger that the jury
understood it only had to find defendant was preparing to commit the crime
of witness dissuasion as opposed to taking initial steps to accomplish the
crime.
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Nor are we persuaded that the failure to instruct on the elements of
attempt constitutes reversible error. A trial court’s failure to instruct on all
elements of an offense is not reversible error under the federal Constitution if
it was harmless beyond a reasonable doubt. (People v. Bell (2009)
179 Cal.App.4th 428, 439.) In People v. Cain, our Supreme Court considered
whether the trial court’s failure to instruct on the elements of attempt with
respect to an attempted rape special circumstance constituted reversible
error. The high court concluded that the jury instruction on attempt “merely
restates the common meaning of ‘attempt,’ ” which is “to ‘try’ or ‘endeavor to
do or perform’ the act.” (People v. Cain, supra, 10 Cal.4th at p. 44; see People
v. Lynch (2010) 50 Cal.4th 693, 763, overruled on other grounds by People v.
McKinnon (2011) 52 Cal.4th 610, 636–638 [following Cain court’s analytical
approach in finding harmless error for failing to instruct on elements of
attempt].) Here, as in Cain and Lynch, the jury could not have found
defendant “tried” to dissuade Ralph N. unless they found he both intended to
do so and committed an act toward the commission. Thus, in finding him
guilty of witness dissuasion, the jury necessarily considered and found true
the elements of attempt. Moreover, defendant’s incriminating statement to
Arnaudo about having copies made in order to get paperwork out, the expert
testimony about what it means to distribute paperwork, and Ralph N.’s
starkly inconsistent testimony evidenced, at a minimum, defendant’s clear
intent to intimidate Ralph N. and his initial steps toward the crime. Thus,
any presumed error in failing to instruct the jury on the elements of attempt
was harmless beyond a reasonable doubt.
b. Failure to Instruct with CALCRIM No. 2623
Defendant was charged in count two with, and found guilty of,
dissuading a witness by force or threat under section 136.1, subdivision (c)(1).
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Section 136.1, subdivision (c)(1) requires the jury to find the defendant’s “act
is accompanied by force or by an express or implied threat of force or
violence.” CALCRIM No. 2623 applies to violations of section 136.1,
subdivision (c). The jury here, however, was instructed with CALCRIM
No. 2622, which did not require them to find the element of force or threat.
The Attorney General concedes the trial court erred in failing to
instruct on force or threat, but contends the error is harmless beyond a
reasonable doubt because it is clear from the record that defendant’s scheme
to dissuade Ralph N. from testifying involved either employing fear
stemming from the threat of force, or inciting a third party to kill Ralph N.
The record here is not so clear, however. While Ralph N. testified
generally that gang members could harm a dropout based on information in a
debriefing report, he also testified that nothing would happen to him because
he is a “has been” that had been out of the gang for 10 years. When asked
about what it would mean to have “paperwork” circulating, Ralph testified it
would be a problem if one were “going back to the dope game,” but if “you are
going back to live a normal life then who cares.” The defense elicited on
cross-examination that it was already known among AB and NLR gang
members in 2009 that Ralph was a dropout. In closing argument, the
prosecutor argued Ralph N. was “annoyed” by the distribution of his
debriefing report, that it was “problematic” for him, and told the jury that
“[e]ven if [Ralph] was not intimidated by the idea of his debriefing being out
in public, even when he’s out of prison like he is now, and perhaps fair game
on the street for some people, even if that doesn’t intimidate him, that’s not a
defense for the defendant.”
On this record, it is not clear beyond a reasonable doubt what the jury
might have decided if instructed under CALCRIM No. 2623 that the
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attempted threat must be accompanied by force or a threat of force or
violence. The Attorney General asserts, and we agree, that the remedy for
this error is to modify the judgment to reduce defendant’s conviction on count
two to a violation of section 136.1, subdivision (a)(1). (See People v. Torres
(2011) 198 Cal.App.4th 1131, 1149.)
c. Instruction on Conspiracy to Dissuade a Witness
Defendant next argues the court erroneously instructed the jury on
count three, dissuading a witness from testifying in furtherance of a
conspiracy under section 136.1, subdivision (c)(2), because the court failed to
instruct the jury that it had to find defendant committed an act described in
subdivision (a) or (b) of section 136.1. Instead, the court instructed the jury
with a modified form of CALCRIM No. 415, the instruction on conspiracy
under section 182. Defendant contends the instruction given at trial omitted
an element of the offense and constituted reversible error.
We conclude the error was harmless beyond a reasonable doubt. In this
argument, defendant complains only that the jury was not required to find
that defendant attempted to dissuade Ralph N. under section 136.1,
subdivision (a). But the jury necessarily had to make such a finding in its
guilty verdict on count two. Under these circumstances, and for the reasons
already discussed, any error was harmless beyond a reasonable doubt.
D. Review of Sealed Records
The trial court reviewed in camera numerous documents that had been
subpoenaed by the defense and ordered the documents and reporter’s
transcripts of the in camera review proceedings sealed. Defendant asked us
to review the record of the in camera proceedings to determine whether the
court erroneously failed to provide discovery the defense should have
received.
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Defendant requested we review four categories of documents that had
been subpoenaed, including documents from the California Bureau of
Narcotic Enforcement, Richmond Police Department, Contra Costa County
Sheriff’s Office, and Sergio R.’s immigration records. On December 7, 2018,
one week prior to filing his opening brief, defendant requested augmentation
of the record with all of the records placed under seal by the trial court. We
granted the request on December 13, and the clerk of the superior court
transmitted documents under seal to this court on January 17, 2019.
Upon our initial review of the documents forwarded to us and the trial
court’s orders sealing those documents, it became clear that we did not have
all of the records placed under seal by the trial court. As to the Contra Costa
County Sheriff’s Office records, the trial court had placed under seal in 2016,
a “thumb drive” containing an Excel spreadsheet, but we received only an
electronic PDF file (not a “thumb drive”) that may have been an imaged copy
of an Excel file but which cut text off from various cells throughout the
document. With regard to the Richmond Police Department records, the trial
court had likewise placed records on a “Flashdrive”15 under seal in 2016, but
we received six volumes of PDF files. Our comparison of the trial court’s
2016 order describing the records it had reviewed with the documents
transmitted by the superior court clerk made clear that we had only some of
the documents the superior court had reviewed in 2016. When we asked the
trial court to provide the original thumb drives it had placed under seal, we
were informed they could not be located.
15Although the trial court described the electronic media on which the
Contra Costa County Sheriff’s Office and Richmond Police Department
records were placed as “thumb drive” and “Flashdrive” alternatively, we refer
to them collectively as “thumb drives.”
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On November 7, 2019, we asked the parties to provide supplemental
briefing within two weeks addressing how the court should proceed. After
reviewing the supplemental briefing, on December 20, we asked the trial
court to attempt to obtain the records from the custodian of records for the
Richmond Police Department and Contra Costa County Sheriff. We also
asked the trial court to review any records it received, confirm whether they
were the records that had been produced in 2016, and transmit all documents
it previously reviewed under seal to this court. As to the Contra Costa
County Sheriff’s records, the sheriff’s office was able to locate a duplicate copy
of the records originally provided to the trial court in 2016, and those records
were transmitted under seal and received by this court on February 27, 2020.
As to the Richmond Police Department records, a duplicate copy of the
records the trial court reviewed in 2016 could not be located. Based on our
request and at the direction of the trial court, however, the custodian of
records for the Richmond Police Department searched for and located all of
the documents it could find that were responsive to the original subpoena.
The trial court then transmitted copies of those records to us on February 10
and March 13, 2020, along with a report indicating that the trial court was
“certain” the records were not an exact duplicate of the records submitted by
the Richmond Police Department in 2016.
After receiving both sets of records, we issued a further order on
May 22, 2020 asking the trial court to review the sheriff’s office records and
tell us whether it had ordered any of the records disclosed to defense counsel
and, if so, which records were disclosed. As to the Richmond Police
Department records, we requested that the trial court review the records and,
to the best of its ability, determine which records had previously been
provided to the trial court, which records had been disclosed to the defense,
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and which records had not been submitted to the court in 2016. The trial
court held four hearings, in February, June, August, and October 2020,
during which it obtained assistance from the parties, including defendant’s
trial counsel, in an effort to reconstruct and settle the record. We augmented
the record, on December 9, 2020, with copies of transcripts from the hearings
and have reviewed the trial court’s reports on its findings.
After the proceedings in the trial court to resolve the record deficiencies
had concluded, on January 29, 2021, defendant requested the opportunity to
file a second supplemental brief to address issues that arose during those
proceedings. We granted the request on February 18, and set a briefing
schedule. Defendant filed a second supplemental brief raising several issues
regarding the Contra Costa County Sheriff’s Office records, which we address
below. The Attorney General filed a second supplemental opposition brief,
and defendant filed a reply.
Having now completed our review of the documents that defendant
requested we review, we conclude the trial court did not err.
1. Bureau of Narcotic Enforcement Records
Defendant subpoenaed records from the California Bureau of Narcotic
Enforcement (BNE) regarding Sergio R., Grockett, and Robert Lott.16 The
Attorney General filed a motion to quash the subpoena.17 Defendant opposed
16 Part of the defense theory of the case was that Robert Lott, a drug
dealer, killed Grockett because Lott was afraid after Grockett robbed him at
gunpoint. The BNE conducted a wiretap investigation on Lott’s telephone
and intercepted multiple calls between Lott and Grockett.
17The BNE no longer existed at the time of defendant’s subpoena, but
the Attorney General indicated the Department of Justice Bureau of
Investigation, Division of Law Enforcement “may have BNE’s records in its
possession, custody and control.”
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the motion, arguing that the BNE records were central to the case because it
was a BNE agent, Michael Fanucchi, who first told Detective Pate about the
possibility of Lott’s involvement in the Grockett murder. Fanucchi gave Pate
information about Grockett from wiretaps of Lott’s phone. Fanucchi had also
previously testified about a video seized from a search of the home of Richard
Folla, a neighbor of Lott’s, in which Fanucchi thought he remembered seeing
an individual in a mask pointing at the Cummings Skyway freeway off-ramp,
which led to the location of Grockett’s death.18 In his opposition to the motion
to quash, defendant asked the trial court to review the BNE records for
material discoverable under section 1054 and Brady v. Maryland (1963) 373
U.S. 83. After an in camera review, the trial court ordered some of the
records disclosed to the defense and placed the rest under seal.
We have reviewed the BNE records and we conclude the trial court did
not err in refusing to order additional documents disclosed.
2. Richmond Police Department Records
Defendant subpoenaed records from the Richmond Police Department
relating to Michael Wang, a City of Richmond police officer. Sergio R.
testified Wang accepted bribes from Sergio R. in exchange for information
and protection. The defense theorized that Sergio was an informant in both
the Wang investigation and defendant’s case, and that Sergio’s informant
agreement and disclosures in both cases were intertwined. Defendant sought
impeachment evidence and evidence of Sergio’s work as an informant.
18Fanucchi testified in this trial that he was mistaken about
Cummings Skyway because apparently the video was of a location in Marin
County. He also testified he was mistaken in his prior testimony about how
the video came into the possession of law enforcement.
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The trial court reviewed the Richmond Police Department records in
camera and issued a detailed 10-page order describing the records it had
reviewed, which records would be disclosed, and which records were not
ordered disclosed.
We have reviewed the records as reconstructed and settled by the
parties and the trial court in the proceedings described above. Upon our
review, we conclude the trial court did not err in failing to order additional
documents be provided to the defense.
3. Contra Costa County Jail Records
a. Additional Background
Defendant subpoenaed records from the Contra Costa County Sheriff’s
Office seeking classification and disciplinary records of various inmates
including, among others, Ralph N., Sergio R., Jose Vega-Robles, and Ronnie
Yandell. The sheriff’s office sent defense counsel a letter objecting to the
subpoena, and shortly thereafter, defense counsel requested issuance of an
order to show cause based on the county’s failure to file a motion to quash or
produce documents. The trial court issued an order to show cause, county
counsel filed a response to the order, and the trial court subsequently
conducted a review of documents produced in camera.
On August 30, 2016, the trial court filed an order discussing its in
camera review of the records. The court observed that the “records provided
by the Sheriff’s Office purport to be ‘Chron’ files regarding the following
inmates: J. Vega-Robles, S[ergio R.], R. Yandell, T. Makanski, J. Soletti,
[Ralph N.], and E. Stiverson.” The court noted the records were contained on
a black “thumb drive” and “were in Excel Spreadsheet format and it was not
always clear whether the columns of entries were consistent with
corresponding date entries contained in a separate columns [sic] of dates
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which purported to reflect when the ‘chron’ entries were actually made.” The
court went on to state: “Having reviewed the records, the court has decided
to disclose a limited number of entries. Each entry to be disclosed will be in a
three page format. The first page reflects the person to whom the entry
relates; the second page the actual ‘chron’ entry; and the third page the dates
corresponding to the date of the event [c]aptured by the described event.”
The court explained copies of the entries to be disclosed would first be
provided to the records custodian so the sheriff’s office could have an
opportunity to file any additional objection to the disclosure of the records. If
an objection was filed, the court would set a date for hearing on the objection.
The court also stated defendant would be required to sign a confidentiality
“pledge/undertaking” with respect to the records.
In September 2016, Contra Costa County Counsel requested an in
camera hearing regarding the proposed disclosure, and the sheriff’s office
filed a declaration from a sergeant regarding specific concerns with release of
portions of three inmates’ classification records. On September 22, the trial
court stated it had reviewed some of the records and found some to be
discoverable. County counsel again requested an in camera hearing. On
October 5, the court held an in camera hearing. The trial court stated on the
record after the hearing it had discussed release of certain records with the
sheriff’s office, but more time was needed before disclosure.
During opening statements on October 7, outside the presence of the
jury, the trial court noted it held an in camera proceeding “the other day”
regarding information that might be turned over “in its current form or some
alternative form.” The court noted one of the individuals for whom jail
records were sought might testify, and advised the prosecution to inform
county counsel “[b]ecause [the court would] turn what [it had] over to
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[defense counsel] no later than when that person first hits the witness stand.”
On October 20, during trial, the trial court stated on the record that it had
provided subpoenaed records to counsel relating to E. Stiverson. Defense
counsel did not contradict that statement.
In the course of record settlement proceedings in this appeal, on
October 13, 2020, the trial court issued an order, to which defendant’s trial
counsel and the district attorney stipulated, stating the following: “Trial
counsel for [defendant] has indicated in his submissions to this court that he
had available to him during the trial various relevant Contra Costa jail
records. However, based on the information currently available to this court
and counsel, this court and the parties cannot confirm that any of the specific
records or entries from records of the Contra Costa Sheriff contained in the
[thumb drive] submitted to the First District Court of Appeal[ ] on
February 13, 2020 were disclosed to the defense pursuant to this court’s order
on August 30, 2016 notwithstanding the fact that at page two of that order
this court indicated that certain of these records were to be ordered disclosed
at that time.”19
As noted above, defendant filed a second supplemental brief in this
court, raising several issues regarding the sheriff’s office records.
b. Adequacy of the Record on Appeal
Defendant raises several challenges to what he characterizes as the
adequacy of the record on appeal. First, he argues the record is inadequate
19 The trial court’s August 30, 2016 order stated “the court has decided
to disclose a limited number of entries,” but indicated that “[c]opies of the
entries to be disclosed” would first be disclosed to the sheriff’s office to give
them a chance to object. The order noted, “If no objection is filed, the records
shall be disclosed forthwith. If an objection is filed, the court will set a date
for a hearing on the objection.”
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because the trial court was unable to identify which documents it disclosed to
trial counsel. Defendant also argues the trial court failed to ascertain that
the sheriff’s office had submitted all documents responsive to the subpoena
because he subpoenaed a greater number and type of records than were
provided. In addition, he argues, the record is inadequate because the trial
court could not confirm it disclosed a certain entry showing that
[REDACTED].20 Accordingly, defendant contends, we cannot review the
record to determine if he was erroneously denied information that would
assist in his defense.
“A criminal defendant is entitled under the Eighth and Fourteenth
Amendments to an appellate record that is adequate to permit meaningful
review.” (People v. Young (2005) 34 Cal.4th 1149, 1170.) Defendant bears
the burden of demonstrating the record is inadequate. (Ibid.)
We first address defendant’s concern with the trial court’s inability to
definitively state which records were disclosed in 2016. In doing so, we are
mindful we must presume the correctness of the judgment, and it is
defendant’s responsibility to affirmatively demonstrate reversible error.
(Jameson v. Desta (2018) 5 Cal.5th 594, 609.) Here, the record reflects the
trial court decided in 2016 it would disclose certain records from the “chron”
files of seven inmates. As to some of them, the sheriff’s office filed objections,
and the trial court held an in camera hearing with county counsel and the
custodian of records for the sheriff’s office. After the in camera hearing, the
court indicated “there will be some disclosures made,” but the sheriff’s office
needed additional time to “look into certain matters relating to the items [the
20 During the record reconstruction and settlement proceedings, the
trial court allowed counsel access to certain of the sheriff’s office records
subject to a protective order.
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trial court] identified” for disclosure. The trial court then stated, “[I]t’s going
to be at least a short while longer before any of those disclosures are made to
you,” but the court anticipated making “at least some disclosures from that
subpoena made to [defense counsel] of records relating to particular
individuals.” Later, during trial, the trial court stated it had provided
subpoenaed records to counsel relating to E. Stiverson. Moreover, in the
record reconstruction and settlement proceedings, defendant’s trial counsel
explained that he received confidential sheriff’s office records during trial but
“used them and gave them back” because a “young man . . . from the law
department” wanted them back. To the extent defendant did not receive
records the court indicated it was planning to disclose, it was defense
counsel’s responsibility to follow up and obtain a ruling. We will not presume
error on a silent record.
As to the trial court’s failure to ascertain whether the sheriff’s office
had produced all records responsive to the subpoena, we likewise conclude
defendant has failed to demonstrate error. Defendant complains that he
subpoenaed a greater number and type of records than were provided by the
sheriff’s office. Defendant’s claim is premised on his assertion that he does
not know what was presented to the trial court in camera, but to the
contrary, the trial court described the documents it was reviewing in camera.
The trial court stated the records were “ ‘chron’ ” files for seven inmates in
“Excel Spreadsheet format,” indicating they consisted of three pages each—a
cover sheet with information on the inmate, the chron entry, and the dates
corresponding to the event described. Defendant complains that the sheriff’s
office filed a declaration stating it had 1,700 pages of responsive incident
reports, including specific numbers of booking reports and incident reports
for several of the inmates. But defendant knew that information at trial, and
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points to no evidence he followed up in pursuit of those records with the trial
court. (See, e.g., People v. Morrison (2004) 34 Cal.4th 698, 714; People v.
Valdez (2012) 55 Cal.4th 82, 121 [“it appears defendant has forfeited this
issue by failing to object and obtain a ruling in the trial court”].)
Defendant further contends the record is inadequate for a meaningful
appeal because the trial court could not confirm whether it disclosed one of
the entries in [REDACTED]. As discussed above, however, defendant has
failed to demonstrate the trial court erred because the trial court indicated it
was intending to disclose certain of the “chron” files and defendant has not
shown that the records were not disclosed or that he followed up to obtain
them.
In any event, defendant has failed to demonstrate prejudice.
[REDACTED.]
Defendant also argues he should be given the “benefit of the doubt” as
to the adequacy of the appellate record because the trial court was unable to
settle the record. But the only portion of the record that went missing was
the thumb drive with the Contra Costa County Sheriff’s Office documents on
it, and a duplicate was recovered during the proceedings below. Accordingly,
defendant has failed to demonstrate that any deficiency from a missing or
inadequately reconstructed portion of the record caused him prejudice or
prevented him from pursuing a meaningful appeal.
c. Allegedly Missing Records
Defendant also argues that the “chron” file for Sergio R. appears to be
incomplete because the record appears not to cover the entire time he was
housed in the Contra Costa County jail. Defendant [REDACTED] asks us to
conclude the Contra Costa County Sheriff’s Office failed to provide complete
chron records for Sergio R. to the trial court.
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As discussed above, defendant bears the burden to demonstrate the
record is inadequate to prosecute his appeal. His argument that portions of
Sergio’s chron record were missing is based on speculation about what the
record should have shown. (People v. Young, supra, 34 Cal.4th at p. 1170.)
Because we must presume the judgment is correct, we decline to assume
error in the absence of an affirmative showing.
We have reviewed the documents sealed by the trial court and the
transcript of the in camera proceeding. Based on our review of those records,
the trial court’s orders, and the reporter’s transcript in this appeal, we
conclude the trial court did not err in refusing to disclose records.
4. Sergio R.’s Immigration Records
Sergio R. testified that, as part of the benefits package he received in
exchange for his testimony, he was to receive assistance with obtaining legal
resident status in the United States. He testified he did not know his
immigration status, and that confidential documents had been filed in his
immigration case. The prosecutor had earlier disclosed that he had written
letters on Sergio’s behalf to avoid his deportation and ensure he was
available to testify.
In October 2016, Sergio’s immigration attorney brought his file to court
and the trial court reviewed his immigration records in camera. The trial
court ordered the records and the transcript of the in camera hearing sealed.
We have reviewed the records and we conclude the trial court did not
err in refusing to order any documents disclosed.
E. Ineffective Assistance of Counsel
Defendant argues his trial counsel rendered ineffective assistance of
counsel by failing to object to prosecutorial misconduct in opening statements
and closing argument. Defendant claims each of his arguments may be
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reviewed on the appellate record alone because counsel’s performance was so
deficient, there simply could be no satisfactory explanation for the failure to
act.
1. Legal Standard
To succeed on an ineffective assistance of counsel claim, a defendant
must show (1) counsel provided representation that fell below an objective
standard of reasonableness under prevailing professional norms and
(2) prejudice resulted from counsel’s deficient performance. (Strickland v.
Washington (1984) 466 U.S. 668, 687–688, 691–692; People v. Jennings (1991)
53 Cal.3d 334, 357.) A defendant shows prejudice when there is a reasonable
probability that, but for counsel’s deficient representation, the result of the
proceeding would have been different. (Jennings, at p. 357.) “ ‘A reasonable
probability is a probability sufficient to undermine confidence in the
outcome.’ ” (Ibid.; People v. Avena, supra, 13 Cal.4th at p. 418.)
When a defendant makes an ineffective assistance claim on direct
appeal, and the record does not show why counsel chose to act as he or she
did, the conviction must be affirmed unless there could have been no rational
tactical purpose for counsel’s acts or omissions. (People v. Mesa (2006)
144 Cal.App.4th 1000, 1007.)
2. Stock Images in Opening Statement
During opening statement, the prosecutor used generic photographs in
his PowerPoint presentation, interspersed with photographs of evidence in
defendant’s case. Defendant argues the prosecutor never distinguished
between the generic photographs and actual evidence in the case, giving the
jury a misimpression about the drugs, money, and gangs involved in this case
and coloring their view of all the evidence that was about to be presented.
Defendant argues the images had psychological impacts on the jurors
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including a “primacy effect,” a “priming effect,” and a “framing effect,” which
collectively impacted how the evidence presented at trial was viewed by the
jurors.
The slides defendant finds objectionable contain images of drugs, gang
members, and money. While the images may have been alarming or
upsetting to some jurors, they were no more inflammatory than the evidence
adduced at trial. This case involved multiple White supremacist gangs,
extensive drug dealing, multiple murders and evidence of solicitation to
commit murder, death threats, violence, and other provocative subjects.
Given the substantial volume of incendiary evidence presented at trial, it is
unlikely that the stock images presented during opening statement had a
lasting and prejudicial effect on the jurors.
Moreover, the jury was instructed that statements by counsel,
including remarks made in opening statements and closing arguments, are
not evidence and the jury must follow the court’s instruction on the law. (See
Boyde v. California (1990) 494 U.S. 370, 384–385 [arguments of counsel carry
less weight with a jury than instructions from the court]; People v.
Cunningham (2001) 25 Cal.4th 926, 1001–1002 [prosecutor’s inaccurate
remarks during opening statement were harmless because jury was
instructed that opening statement was not evidence and defendant had a
chance to confront witnesses and challenge all evidence offered against him].)
Even assuming defense counsel performed inadequately in failing to object to
the opening statement, we cannot conclude defendant was prejudiced by the
generic images used by the prosecution in its opening.
3. Closing Argument
Defendant raises several claims of error with respect to the
prosecution’s closing argument. First, he claims the prosecutor used facts not
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in evidence to bolster Jamie B.’s credibility by telling the jury that he had no
influence over her case when she had in fact testified that the prosecutor
would inform her sentencing judge whether he thought she had testified
truthfully. Second, he claims the prosecutor engaged in impermissible
vouching by telling the jury that defendant’s case had been investigated by
the district attorney’s office and he was indicted by a grand jury, thereby
suggesting that the pretrial procedure could be used as evidence of
defendant’s guilt. Third, defendant claims that the prosecutor impermissibly
implied there was evidence the jury had not heard, including statements from
Clayton Cates, Thomas Covey, and Tim Covey, that exonerated Robert Lott
and Tara S. and inculpated defendant. Fourth, defendant argues that the
prosecutor sought to justify the plea bargains he made to obtain witness
testimony by telling the jury that witnesses have to feel safe before they are
willing to testify.
Considered in the context of the whole trial, the alleged errors were not
significant. The prosecution’s statements during closing argument about
Jamie B.’s incentives to testify, the grand jury indictment and pretrial
proceedings, the fleeting references to individuals that did not testify at trial,
and the explanation he gave for the reason he made plea bargains with some
witnesses were all very brief. (People v. Brown (2003) 31 Cal.4th 518, 553–
554 [defendant not prejudiced by brief and fleeting remarks by prosecution];
People v. Wharton (1991) 53 Cal.3d 522, 567–569 [same].) Even assuming the
remarks constituted misconduct, it is unlikely that the jury gave them much
weight particularly because, as discussed above, the jury was clearly
instructed that statements by counsel are not evidence. On this record,
defendant has not demonstrated a reasonable probability that but for his
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counsel’s alleged ineffective assistance he would have received a different
result.
F. Cumulative Error
Defendant contends the cumulative errors in this case warrant reversal
because they deprived him of his federal constitutional right to a fair trial.
Under the “cumulative error” doctrine, we reverse the judgment if it is
“ ‘reasonably probable’ ” that the jury would have reached a result more
favorable to the defendant absent a combination of errors. (See People v.
Williams (2009) 170 Cal.App.4th 587, 646.) “The ‘litmus test’ for cumulative
error ‘is whether defendant received due process and a fair trial.’ ” (People v.
Cuccia (2002) 97 Cal.App.4th 785, 795.)
Apart from the failure to instruct on the element of force or threat with
respect to count two, we have found either no error or the presumed error
was harmless under the appropriate standard of review. Taking all of
defendant’s claims into account, we conclude there was no cumulative error
that rendered his trial unfair.
G. Discretion on Sentence Enhancements
1. Firearm Enhancement
The trial court sentenced defendant to a term of 25 years to life on a
firearm enhancement under section 12022.53, subdivisions (d) and (e)(1), as it
was statutorily required to do at the time of defendant’s sentencing.
(§ 12022.53, former subd. (h); Stats. 2010, ch. 711, § 5.) Effective January 1,
2018, Senate Bill No. 620 (2017–2018 Reg. Sess.) (Senate Bill 620) amended
section 12022.53, subdivision (h) to empower the trial court “in the interest of
justice pursuant to Section 1385 and at the time of sentencing, [to] strike or
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dismiss an enhancement otherwise required to be imposed by this section.”
(Stats. 2017, ch. 682, § 2.)
Defendant contends remand is required to permit the trial court to
exercise its discretion to strike the firearm enhancement under
section 12022.53, subdivision (h). The Attorney General argues remand is
unnecessary because it is apparent from the trial court’s other discretionary
sentencing decisions that it would not have stricken the firearm
enhancement.
We agree with defendant. Senate Bill 620 applies retroactively to cases
where the judgment is not yet final. (People v. Woods (2018) 19 Cal.App.5th
1080, 1090–1091.) “Generally, when the record shows that the trial court
proceeded with sentencing on the erroneous assumption it lacked discretion,
remand is necessary so that the trial court may have the opportunity to
exercise its sentencing discretion at a new sentencing hearing.” (People v.
Brown (2007) 147 Cal.App.4th 1213, 1228.) Here, the trial court made no
statements from which we can infer that it necessarily would have declined to
strike the firearm enhancement.
2. Prior Serious Felony Enhancement
The trial court also sentenced defendant to consecutive five-year terms
for the commission of a prior serious felony under section 667, subdivision (a)
on counts one and two, as it was statutorily required to do at the time of
defendant’s sentencing. (Former § 1385, subd. (b); Stats. 2014, ch. 137, § 1.)
Effective January 1, 2019, Senate Bill No. 1393 (2017–2018 Reg. Sess.)
(Senate Bill 1393) amended sections 667, subdivision (a) and 1385,
subdivision (b) to allow a court to exercise its discretion to strike or dismiss a
prior serious felony conviction. (Stats. 2018, ch. 1013, §§ 1–2; see People v.
Garcia (2018) 28 Cal.App.5th 961, 971.)
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Defendant asks us to remand to permit the trial court to exercise its
discretion whether to strike the prior serious felony conviction enhancements
for sentencing purposes. The Attorney General argues remand is
unnecessary. We agree with defendant. The amendments to sections 667,
subdivision (a) and 1385, subdivision (b) apply retroactively to defendant
because his case was not final when they took effect. (People v. Garcia,
supra, 28 Cal.App.5th at p. 973.) Because those newly enacted laws provide
the trial court with sentencing discretion it did not have at the time of
defendant’s sentence, we will remand for resentencing. (See, e.g., People v.
Johnson (2019) 32 Cal.App.5th 26, 69 [remanding “out of an abundance of
caution” for resentencing despite court’s statements at sentencing reflecting
lack of sympathy for defendants].)
III. DISPOSITION
We modify the judgment to reduce defendant’s conviction on count two
to a violation of section 136.1, subdivision (a)(1). The matter is remanded to
the trial court for resentencing on that count, and to allow the court to
exercise its discretion whether to resentence defendant under Senate Bill 620
and Senate Bill 1393 with respect to the firearm and prior serious felony
conviction enhancements. Following resentencing, the trial court shall issue
an amended abstract of judgment and forward a certified copy to the
California Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
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PUBLIC—REDACTED
OPINION
MARGULIES, J.
WE CONCUR:
HUMES, P. J.
BANKE, J.
A151534
People v. Phillips
54