P. v. Covarrubias

Filed 2/5/10 P. v. Covarrubias CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Katherine Mader, Judge. Affirmed.

John Lanahan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews, Shawn McGahey Webb and David Glassman, Deputy Attorneys General, for Plaintiff and Respondent.

______________________

Anthony Covarrubias appeals from the judgment entered following his convictions by jury on two counts of first degree murder (Pen. Code, 187; counts 1 & 2) with a multiple-murder special-circumstance finding (Pen. Code, 190.2, subd. (a)(3)), and with personal and intentional discharge of a firearm (Pen. Code, 12022.53, subd. (c)), personal and intentional discharge of a firearm proximately causing great bodily injury and death (Pen. Code, 12022.53, subd. (d)), and with each offense committed for the benefit of a criminal street gang (Pen. Code, 186.22, subd. (b)(1)(A)). The court sentenced appellant to prison for two terms of life without the possibility of parole, plus 50 years to life. We affirm the judgment.

FACTUAL SUMMARY

Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established that on September 27, 2003, appellant, a member of the Culver City Boys gang, went to a park where he encountered Michael Bosh, Timothy Bosh, and Oscar Ramos. Appellant pointed what was probably a chrome nine-millimeter gun at Timothys head. Appellant announced he was a Culver City Boys gang member and asked Timothy whether Timothy was a member of a rival gang. Appellant made Timothy lie on the ground. Timothy denied he was a gang member.

Appellant asked Michael and Ramos if they were gang members, and Michael and Ramos replied no. Appellant, who wanted to see if Timothy, Michael, and Ramos had tattoos, told the three to remove their shirts. The three complied and, although Timothy and Michael had pit bull tattoos, none of the three had tattoos of the rival gang. Appellant told Michael and Ramos to get on the ground. Appellant subsequently shot Ramos, then shot and killed Michael (count 1). Appellant fled past Timothy, returned, then shot and mortally wounded him (count 2). We will present additional facts below as pertinent.

CONTENTIONS

Appellant claims (1) the prosecutors exercise of a peremptory challenge on the basis of race violated appellants rights to a fair trial and to equal protection of the laws, (2) the trial court erroneously refused to provide funds to permit appellant to retain an expert to challenge ballistics as a science, and (3) the trial court erred by giving CALCRIM No. 220.

DISCUSSION

1. The Court Properly Denied Appellants Wheeler/Batson Motion.

a. Pertinent Facts.

On January 15, 2008, during voir dire of the prospective jurors (hereafter, jurors), a prospective juror (hereafter, Juror No. 4) testified as follows.^[1] Juror No. 4 lived in Hawthorne, was separated, and had two children. One of the children was involved in health care, and the other was a homemaker who formerly had been a postal employee. Juror No. 4 was a workers compensation assistant and had no prior jury experience. Her husband lived in another state and she did not know how he was employed. Juror No. 4s brother lived in San Francisco and formerly was an attorney.

The following later occurred during the voir dire of Juror No. 4: The Court:  . . .  Do you have any particular knowledge or anything that has occurred in your life or anybody close to you on the subjects that Ive brought up? Criminal street gangs? Guns? [] [Juror No. 4:] I had a nephew who was killed. [] The Court: How long ago was that? [] [Juror No. 4:] Its been a while ago. [] The Court: In Los Angeles? [] [Juror No. 4:] Yes. [] The Court: And was there a criminal prosecution? [] [Juror No. 4:] Yes. [] The Court: How did you feel the system operated? [] [Juror No. 4:] Fair. [] The Court: It was fair? [] [Juror No. 4:] Uh-huh. [] The Court: How long ago was that? [] [Juror No. 4:] Maybe about seven, eight to ten years ago. [] The Court: Were you involved in going to court? [] [Juror No. 4:] No. [] The Court: Okay. [] [Juror No. 4:] But he lived with me.

The following then occurred: The Court: . . . was his murder connected in any way, do you believe, with gangs . . . . [] [Juror No. 4:] It could have been. [] The Court: Which police agency did the investigation? [] [Juror No. 4:] Wilshire. [] The Court: So that would be L.A.P.D.? [] [Juror No. 4:] Yes. [] The Court: And did you have then a positive experience in the manner in which they handled it? [] [Juror No. 4:] Yeah. [] The Court: Anything else in that same regard, any other particularly positive or particularly negative experience with law enforcement? [] [Juror No. 4:] No. No negative. [] The Court: . . .  If you were the attorneys on both sides of this case, is there anything . . . about you that you feel is very important for them to know? [] [Juror No. 4:] No.

The colloquy continued: The Court: Youre a woman of few words, and I need to get you to talk a little bit. How do you feel about your ability to be fair? [] [Juror No. 4:] I could be fair, after I hear the facts . . . [] . . . [] . . . from both sides. [] The Court: Okay. So why do you think youre a fair person? [] [Juror No. 4:] Why dont I think - [] The Court: Why do you think youre fair? [] [Juror No. 4:] Because I choose to listen first. Voir dire of other jurors proceeded.

On January 16, 2008, the court advised the jury that, during voir dire, the court had tried to ask questions which could not be answered simply yes or no, but some jurors were figuring out ways to tell very little about themselves. The court encouraged the jury to provide more information about themselves during voir dire.

The court later asked jurors what they had thought overnight about the issue of passing judgment upon others. The following occurred: The Court: . . . [] How about juror no. 4? Any thoughts between yesterday and today? [] [Juror No. 4:] No. . . . I feel the same way. Im comfortable with it. [] The Court:  . . .  You feel you could be fair and objective in this type of case? [] [Juror No. 4:] Yeah. [] The Court: Any hesitation at all? [] [Juror No. 4:] Huh? [] The Court: Any hesitation about that? [] [Juror No. 4:] Well, no. . . .  I feel like I can be fair. [] The Court: Okay. So no question in your mind? [] [Juror No. 4:] No.^[2]

The prosecutor exercised his first peremptory challenge against Juror No. 4. Appellant requested to approach the bench and made a Wheeler motion. The court denied both the request and the motion. After additional jurors were excused, the court invited appellant to make a record.

Appellant then indicated that Juror No. 4 was an African-American female and her answers did not indicate she would be an unfair juror. Appellant commented that Juror No. 4 said her nephew was a murder victim and she thought the system was fair.

The court agreed that Juror No. 4 was, as an African-American, a member of a cognizable group. However, the court then stated,  . . .  I dont find that there has been a[n] inference that she has been challenged because of her group association. [] She is the first person who was challenged by the prosecution. They have since, actually, challenged several more people, male White, male White, female Hispanic. [] There are a number of African-Americans that are left on the jury panel. Appellant said there were two more African-American females, but no African-American males, left on the panel. Appellants counsel said she thought that when the court is trying to make a determination, the court has to look at the panel that we have.

The court later stated, There are four . . . female African-Americans on the panel right now. [] And I dont believe that the defense has demonstrated any pattern of conduct on the part of the prosecution when they challenge one African-American female. Appellant denied he had to demonstrate a pattern of prosecutorial conduct when the prosecutor excused the first member of a cognizable group.

The court later stated, The People want to put anything on the record? Im not requiring you to make a justification. The prosecutor replied, I understand that and appreciate the courts ruling that the defense has not made a prima facie case.

The prosecutor then indicated as follows. Appellant was a male Hispanic, there were at least four African-American females on the jury, and the prosecutor excused Juror No. 4 for numerous reasons. One was that, when the prosecutor was posing questions during voir dire, and while all other jurors were paying attention, Juror No. 4 was rolling her eyes and looking to the side. The prosecutor also stated, it appeared to me that [Juror No. 4] was giving an attitude, which I took as giving an attitude to me. Because when I was asking questions, [Juror No. 4] . . . was the only juror that was not paying attention to me when I was speaking to them and looking at them.

The following then occurred: Also [Juror No. 4] previously stated she was involved in the postal office, which is also not a recognizable group [sic]. And she also stated that she had a family member that was killed, that is true. [] But, again, I understand the courts ruling, and I just want to put it on the record. Appellants counsel indicated she had been looking at the jurors, did not discern any attitude, did not see Juror No. 4 rolling her eyes, and thought the prosecutors comments were a farce.

The court stated, I didnt see her rolling her eyes now. But I have to put now on the record my perceptions of this woman. [] Of all the people, frankly, who were on the jury panel, regardless of race, frankly, I would never want this woman as a juror on the case. [] And the reason is that there was something that was very odd to me in her response to my questions. She only answered in one- or two-word answers. . . . there was something disrespectful in the manner in which she was addressing the court when I would ask her a question, or her response would be nope, n-o-p-e.

The court continued, [h]er face was completely impassive. She looked almost glaring to me and never cracked a smile, never showed any -- that we were really getting through to her. She had her hand next to her mouth the whole time she was answering many of the questions, and I just was very uncomfortable with her. [] . . . [] So those are my perceptions. The court denied appellants Wheeler/Batson^[3]motion.

Appellant indicated he interpreted matters differently. According to appellant, several jurors did not respond fluently when the court asked questions, and several jurors responded with yes or no answers. In fact, according to appellant, when proceedings resumed that very day, the court commented jurors were responding with yes or no answers, and that was true as to most persons still on the panel.

Appellant also indicated he perceived no disrespect from Juror No. 4, and when Juror No. 4 returned to court on January 16, 2008, and the court had asked questions, Juror No. 4 had talked more about her nephew and had revealed that Juror No. 4 worked (according to appellant) for the post office. However, the court indicated Juror No. 4 had given that information the day before. The court again denied appellants motion.

b. Analysis.

Appellant claims in essence that the trial court erroneously denied his Wheeler/Batson motion. We disagree. Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based on group bias, such as race or ethnicity. (See [Batson, supra,]476 U.S. [at p.] 97; [Wheeler, supra,] 22 Cal.3d [at pp.] 276-277.) When the defense raises such a challenge, these procedures apply: First, the defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citation.] Second, once the defendant has made out a prima facie case, the burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, [i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.] [Citations.]. (People v. Davis (2009) 46 Cal.4th 539, 582, italics added.)

The record reflects, and there is no dispute, that the trial court ruled that appellant did not make a prima facie showing of group bias in connection with the Peoples excusing of Juror No. 4. When a trial court denies a Wheeler motion because the movant failed to establish a prima facie case of group bias, the reviewing court examines the entire record of voir dire for evidence to support the trial courts ruling. [Citation.] The ruling is affirmed if the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question. (Ibid.) If the reviewing court concludes the trial court properly determined no prima facie case was made, it need not review the adequacy of the prosecutors justifications, if any, for the peremptory challenges. (Ibid.) (People v. Young (2005) 34 Cal.4th 1149, 1172-1173, fn. omitted.)

People v.Trevino (1997) 55 Cal.App.4th 396, is instructive. Trevino observes, [i]n People v. Wimberly (1992) 5 Cal.App.4th 773 . . . , the court emphasized the deference that should be given to a trial courts ruling on a Wheeler motion: The determination of whether a defendant has established a prima facie case is largely within the province of the trial court whose decision is subject only to limited review. [Citations.] [Citation.] . . . Because of the trial judges knowledge of local conditions and local prosecutors, powers of observation, understanding of trial techniques, and judicial experience, we must give considerable deference to the determination that appellant failed to establish a prima facie case of improper exclusion. [Citation.] (Id. at p. 782.) (People v.Trevino, supra, at p. 402.)

In the present case, appellants showing established little more than that one African-American was excused. That showing was insufficient. (Cf. People v. Turner (1994) 8 Cal.4th 137, 167-168.) We note Juror No. 4s nephew was a crime victim and Juror No. 4 gave a common answer that the criminal justice system operated fairly. However, because of the trial courts knowledge of local conditions and local prosecutors, powers of observation, understanding of trial techniques, and judicial experience, we, on a cold record, give considerable deference to the trial courts determination that, as to Juror No. 4, appellant failed to establish a prima facie case of group bias. (Cf. People v.Trevino, supra, 55 Cal.App.4th at p. 402.)

Appellant effectively conceded below that when a court is determining whether a prima facie showing has been made, the court must consider the panel. The fact that multiple African-Americans remained on the panel (four according to the court) was an indication of the Peoples good faith in exercising a peremptory as to Juror No. 4. (Cf. People v. Turner, supra, 8 Cal.4th at p. 168.)

Moreover, the prosecutor indicated (1) Juror No. 4 was looking to the side and rolling her eyes during voir dire when other jurors were paying attention, (2) Juror No. 4 displayed an unfavorable attitude which the prosecutor took as directed to him, and (3) Juror No. 4 was not paying attention to the prosecutor when the prosecutor was speaking to and looking at the jury.^[4] The court indicated it did not see Juror No. 4 roll her eyes, but the court did not specifically address the above remaining comments of the prosecutor, except that, as noted below, even the court indicated Juror No. 4 had an unfavorable attitude.

The court indicated that, regardless of race, the court would not have wanted Juror No. 4 to serve as a juror, and the court indicated as follows. There was something very odd in Juror No. 4s responses to the courts questions and she answered only in one- or two-word answers. There was something disrespectful in the manner in which Juror No. 4 addressed the court when it asked her a question, or her response would be nope.

Commenting on Juror No. 4s demeanor, the court observed that her face was impassive, she almost glared at the court, and she gave no indication that we were really getting through to her. Juror No. 4 had her hand next to her mouth the entire time she answered the courts questions. The court indicated it was very uncomfortable with Juror No. 4.

[P]eremptory challenges may turn upon perceptions not available to someone reading the cold record--the tone of voice, facial expression, body language, etc., of the prospective juror. (People v. Lenix (2008) 44 Cal.4th 602, 634.) In light of all of the above facts, the record suggests grounds upon which the prosecutor reasonably might have challenged Juror No. 4.

Appellant argues the contrary, claiming [t]he error in this case arises from the trial courts finding that no prima facie case had been made because there had been no pattern of discriminatory behavior. We reject the argument. The trial court indicated appellant had failed to demonstrate a prosecutorial pattern of conduct when the prosecution challenged one African-American female, but the court did not expressly state that a prosecutorial pattern was the sine qua non of the requisite prima facie showing. Nor did the court make an express finding on whether a prosecutorial pattern existed.

In fact, the trial court expressly stated, . . . I dont find that there has been a[n] inference that [Juror No. 4] has been challenged because of her group association. (Italics added.) The trial court ruled that appellant did not make a prima facie showing of group bias as to the Peoples excusing of Juror No. 4, and expressly did not find there was inference that she was challenged based on group bias. The fact that the trial court considered whether a prosecutorial pattern had been shown when deciding whether a prima facie showing had been made did not mean the trial court erroneously substituted a pattern for an inference as the dispositive standard.

In People v. Bell (2007) 40 Cal.4th 582, our Supreme Court said, To be sure, the ultimate issue to be addressed on a Wheeler-Batson motion is not whether there is a pattern of systematic exclusion; rather, the issue is whether a particular prospective juror has been challenged because of group bias. [Citation.] But in drawing an inference of discrimination from the fact one party has excused most or all members of a cognizable group (Wheeler, supra, 22 Cal.3d at p. 280), a court finding a prima facie case is necessarily relying on an apparent pattern in the partys challenges. Although circumstances may be imagined in which a prima facie case could be shown on the basis of a single excusal, in the ordinary case, including this one, to make a prima facie case after the excusal of only one or two members of a group is very difficult. [Citation.] (People v. Bell, supra, at p.598, fn. 3.) The trial court properly denied appellants Wheeler/Batson motion, and the Peoples excusing of Juror No. 4 did not violate appellants constitutional rights.

2. The Trial Court Properly Refused to Appoint A Defense Ballistics Reliability Expert.

a. Pertinent Facts.

About April 11, 2007, and prior to trial, appellant, represented by court-appointed counsel, lodged with the court a motion requesting the court to appoint Adina Schwartz as an expert regarding the reliability of ballistics as a science (hereafter, ballistics reliability expert). Schwartz was a professor in the Department of Law, Police Science, and Criminal Justice Administration at the John Jay College of Criminal Justice at the University of New York. The written motion is not part of the record on appeal.^[5]

At a September 11, 2007 pretrial conference, appellants counsel indicated she was trying to get that expert regarding the casings and the gun. The court told appellant to give the name and telephone number of the expert to the court clerk, and well call if this expert is not responding to you. The court indicated appellant had a right to put on an expert in this area, but the court did not want to fly an expert to court from out of state if there was an available expert here.

Appellants counsel said the expert whom appellants counsel sought was going to be in town for a forensic seminar. Appellants cocounsel indicated the seminar would occur that weekend, and appellants counsel replied, Oh. Appellants counsel later commented that Schwartz was the expert in this area. Appellant indicated he had contacted another person in California but that person had not responded. The court replied, We will call.

The court later told appellant that [i]f we cant get [ahold] of this expert that you want, please find a couple of alternatives. The court noted that perhaps someone at the seminar could refer appellant to an expert in this area. Appellant commented that he had learned about Schwartz that way. The court indicated it did not want appellant to procrastinate. Appellant said that if the other expert did not respond or would not be helpful, appellant would ask the court to appoint Schwartz. The court asked appellant to make inquiries about people other than Schwartz. Appellant replied he had done so. The court continued the case.

On January 14, 2008, the day before trial, the court indicated as follows. The court wanted to amplify the record concerning appellants request that the court approve Schwartz, a particular expert who disputes the science of ballistics. The court had told appellant on several occasions that the court was willing to appoint a ballistics reliability expert but the court was unwilling to fly someone in from New York, particularly because this is an area that is not yet accepted . . . in the scientific community. After the court so indicated, both the court and appellants counsel said, Its new.

The court also indicated as follows. Ballistics experts were testifying in trials all over the country. Given the number of universities and science labs we have, the court was totally willing to have that expert appointed. Appellant had advised the court that no one was available other than Schwartz, who was in New York.

Appellant indicated as follows. Appellant had contacted several universities in the area, but no one was willing to accept the appointment or challenge the ballistics. Appellant also said there were very few people willing to do so. Schwartz was one, and there may have been someone else in Maine or elsewhere, but there was no one available on the West Coast. The court advised appellant that it wanted to make clear that the court was not precluding appellant from bringing in a ballistics reliability expert, but the court did not want to fly someone in from New York for that purpose.

On January 15, 2008, the court indicated it wanted to further amplify the record concerning why the court had denied this expert that the defense had requested. The court indicated as follows. Based on the courts review of Schwartzs resume, she was not a scientist or someone trained in ballistics. Appellant had not asked Schwartz to test the ballistics evidence in this case. Schwartz was a law professor and social scientist who had written articles about different aspects of the criminal justice system, including firearms, fingerprinting, informants, wrongfully convicted persons, and prison reform. The court had denied appellants request for multiple reasons, and the first was that Schwartz did not appear to be a scientifically trained ballistics expert.

Appellants counsel acknowledged she had a ballistics expert, but appellants counsel commented that Schwartz, based on her research, would testify ballistics science was sort of a . . . junk science. The court observed that appellant could challenge ballistics evidence and call an expert to testify as to whether visible striation marks, which the jury could see, appeared to match. Appellant noted Schwartz would testify there was nothing distinctive about the striation marks and, because modern guns are mass-produced, there was no way to distinguish one such gun from another.

The court noted that appellant could elicit such information through cross-examination of the Peoples ballistics expert or through presentation of appellants own ballistics expert, somebody with scientific training to challenge the, quote, unquote, match[.] Appellant complained that ballistics experts would not challenge ballistics as a science. Appellants counsel stated, I had a ballistics examiner examine it, but shes not going to challenge the science because she believes it.

The court observed that among the thousands of California ballistics experts, no one accepted that ballistics comparison was a junk science. The court indicated that a social scientist could not contribute to appellants case and it was sufficient that appellant could call a ballistics expert. The court noted appellant could ask a ballistics expert whether the expert had considered Schwartzs writings.

During trial, appellant cross-examined the Peoples ballistics expert on the issue of the reliability of ballistics evidence, and appellant mentioned authors, including Frederick Tulleners, who generally had challenged ballistics science. At a later sidebar, the court noted that Tulleners was in California and could have assisted appellant in court. Appellant indicated that appellant had spoken with Tulleners, Tulleners was willing to testify about the inadequacy of an automated matching system, but Tulleners was unwilling to testify about the inadequacy of ballistics science because they are still working on it. Tulleners was also unwilling to testify about the inadequacy of individual ballistics experts.

b. Analysis.

Appellant claims the trial court erroneously refused to pay for airfare to transport Schwartz to California from New York so she could be appellants ballistics reliability expert. We disagree. It is well settled that an indigent felony defendant is not only entitled to the appointment of counsel, but is also entitled to those ancillary services which are reasonably necessary to insure presentation of a defense. [Citations.] But within the rule just stated is its limitation: the burden is on the defendant to make a showing of need, before the court is required to appoint an expert. [Citation.] It is only necessary ancillary services to which an indigent is entitled. [Citations.] (People v. Young (1987) 189 Cal.App.3d 891, 902 (Young).) Such services may include appointment of an expert to assist the defense. (Id. at pp. 902-903.)

However, an indigent defendant has no right to the appointment of a particular expert as opposed to any other expert. (Young, supra, 189 Cal.App.3d at pp. 902-903.) As appellant concedes, we review the trial courts ruling on a request for ancillary services, such as appointment of a defense expert, under an abuse of discretion standard. (People v. Guerra (2006) 37 Cal.4th 1067, 1086.)

We have recited the pertinent facts. This is not a case in which the trial court refused under any circumstances to appoint a ballistics reliability expert. The trial court was clearly willing to appoint one. The trial courts concerns lay elsewhere.

First, we note the trial courts comments at least suggested an understandable skepticism concerning the topic of ballistics reliability (as opposed to typical ballistics evidence and expert testimony). The court noted that ballistics experts were testifying in trials throughout the nation, and the subject of ballistics reliability had not gained acceptance in the scientific community. The court and appellant agreed the subject of ballistics reliability was novel. Appellant had contacted several universities in the area, but no one was willing to accept an appointment or challenge ballistics science. To appellants knowledge, no one on the West Coast was available to do so, and there were very few people available elsewhere.

The court noted that among the thousands of California ballistics experts, no one accepted that ballistics comparison was junk science. Appellant commented to the effect that Tulleners (another potential defense expert) had indicated that ballistics science was a developing science. Although appellant suggested ballistics was not a science, appellant does not expressly contend on appeal that the ballistics evidence received during trial was irrelevant or inadmissible.

Second, even assuming that ballistics reliability testimony was otherwise admissible, the court had understandable qualms about Schwartzs expertise to provide such testimony. Schwartz was a law professor, not a scientist. The court characterized Schwartz without dispute as a social scientist, and indicated Schwartz had no training in ballistics.

Third, expert testimony often requires a jury to rely wholly upon the expertise and/or opinion of the expert. However, Schwartzs proposed testimony that striation marks from mass-produced guns were indistinguishable would have augmented the real evidence of striation marks which the jury would have been able, at least to some extent, to see and compare for themselves. We note appellant indicated he was trying to get an expert regarding the casings and the gun.

Fourth, appellant made an inadequate showing that Schwartz was the only available ballistics reliability expert, i.e., that appellant needed Schwartz and/or court funds to secure her attendance at trial. On September 11, 2007, appellants cocounsel indicated Schwartz would be in town for a seminar. This suggested appellant could have contacted Schwartz locally, arranged for her appearance at trial, or even subpoenaed her. However, appellants counsel merely replied, Oh, suggesting counsel had not even been aware that Schwartz was in town, and suggesting that counsel had not diligently sought to determine Schwartzs current whereabouts.

The court made clear it wanted appellant to see if there were persons other than Schwartz who could suffice. The court indicated appellant could perhaps develop contacts at the seminar. Appellant replied that that was how he found Schwartz, but did not indicate he would make an effort to make further contacts at the seminar, and did not later indicate that he in fact had attempted to make such contacts at the seminar. The court asked appellant to make inquiries of persons other than Schwartz, and appellant said that he had done so, but appellant did not specify to whom he had spoken or when. On January 14, 2008, appellant indicated he had contacted several universities in the area. However, he failed to specify how many, precisely who he had contacted, or when he had made the contacts.

Appellants showing concerning his efforts to secure the attendance at trial of a ballistics reliability expert other than Schwartz was vague. The court rightly observed that appellant could examine testifying ballistics experts on the issues concerning which he proffered Schwartzs testimony. The record before this court contains neither appellants written motion for the appointment of Schwartz nor, therefore, any supporting declaration by appellant or his counsel asserting facts, or making a showing, on any of the above issues. The trial court did not abuse its discretion by denying appellants request that the trial court pay airfare to transport Schwartz to California from New York so she could be appellants ballistics reliability expert. (Young, supra, 189 Cal.App.3d at pp. 902-904.)

3. The Court Did Not Err by Giving CALCRIM No. 220.

a. Pertinent Facts.

The information alleged, inter alia, that appellant committed two counts of murder (counts 1 and 2 as to Michael and Timothy, respectively) with a multiple-murder special circumstance, and with personal and intentional discharge of a firearm, personal and intentional discharge of a firearm causing death, and with each offense committed for the benefit of a criminal street gang. The information also alleged as count 3 that appellant committed attempted willful, deliberate, and premeditated murder against Ramos.

During its final charge to the jury, the trial court gave CALCRIM No. 220, pertaining to reasonable doubt. That instruction read:  The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. [] You must not be biased against the defendant just because he has been arrested, charged with a crime or brought to trial. A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. [] Whenever I tell you that the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. ^[6] (Italics added.)

The court instructed on, inter alia, murder (counts 1 & 2) using CALCRIM No. 520,^[7]and on multiple murder as a special circumstance using CALCRIM No. 721.^[8] Neither of those instructions expressly referred to the term element or to proof beyond a reasonable doubt. However, CALCRIM No. 700, providing an introduction to the concept of special circumstances, instructed that the People had to prove the special circumstance beyond a reasonable doubt.

The court, using CALCRIM No. 3150, instructed on the previously mentioned firearm allegations and, using CALCRIM No. 1401, instructed on the criminal street gang allegation. CALCRIM Nos. 3150 and 1401 instructed that the People had to prove the firearm and criminal street gang allegations, respectively, beyond a reasonable doubt.

The court instructed on attempted murder (count 3) using CALCRIM No. 600, and on willful, deliberate, and premeditated attempted murder using CALCRIM No. 601. CALCRIM No. 600 did not refer to proof beyond a reasonable doubt, but CALCRIM No. 601 instructed that the People had to prove the willful, deliberate, and premeditated allegation beyond a reasonable doubt.^[9] During jury argument, there was no dispute that Michael and Timothy were murdered; the issue was the identity of the murderer. The jury convicted appellant as previously indicated. The jury acquitted appellant of the attempted murder of Ramos (count 3).

b. Analysis.

Appellant claims the trial court erred by giving CALCRIM No. 220 because it fails to instruct that the People must prove the elements of murder, and the elements of multiple murder as a special circumstance, beyond a reasonable doubt. We disagree.

We determine whether a jury instruction correctly states the law under the independent or de novo standard of review. [Citation.] Review of the adequacy of instructions is based on whether the trial court fully and fairly instructed on the applicable law. [Citation.] In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.] [Citation.] Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation. [Citation.] (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088, italics added (Ramos).)

It is true that CALCRIM No. 220 itself does not use the term element. Nonetheless, CALCRIM No. 220 stated, Whenever I tell you that People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. (Italics added.) Moreover, there is no dispute that, although CALCRIM Nos. 520 and 721, pertaining to murder, and the multiple-murder special circumstance, respectively, did not use the term elements, those instructions nonetheless identified the elements of murder, and the elements of said special circumstance, respectively, that had to be proven.

We consider the instructions as a whole and presume the jury correlated them. Reasonably understood, CALCRIM Nos. 220 and 520, read together, adequately instructed that the People had to prove the elements of murder, beyond a reasonable doubt. (Ramos, supra, 163 Cal.App.4th at pp. 1088-1089.) Similarly, CALCRIM Nos. 220 and 721, read together, adequately instructed that the People had to prove the elements of the multiple-murder special-circumstance allegation beyond a reasonable doubt. Moreover, CALCRIM Nos. 700 and 721, read together, also instructed the jury that the People had to prove beyond a reasonable doubt the multiple-murder special-circumstance allegation.

Finally, appellant did not during jury argument dispute that someone murdered Michael and Timothy and committed the requisite multiple murder. The real issue at trial was identity, and the evidence of identity was essentially circumstantial. The court, using CALCRIM No. 224, instructed the jury that before they could rely on circumstantial evidence to conclude that a fact necessary to find appellant guilty had been proved, the jury had to be convinced that the People had proved beyond a reasonable doubt each fact essential to that conclusion. The court gave a similar instruction (CALCRIM No. 704) on circumstantial evidence and the special circumstance allegation. The trial court did not err by giving CALCRIM No. 220.

None of appellants arguments compel a contrary conclusion. In particular, appellants reliance on the facts that the court instructed on the requirement of proof beyond a reasonable doubt as to the premeditation allegation of attempted murder, and the jury acquitted appellant of attempted murder, is misplaced. CALCRIM No. 601 instructed on proof beyond a reasonable doubt as to the premeditation allegation, not as to the charge of attempted murder per se. Based on appellants position, the jury arguably should have found not true the premeditation allegation while convicting appellant of attempted murder. However, the jury acquitted him of that charge completely. The fact that CALCRIM No. 600 itself did not refer to proof beyond a reasonable doubt did not prevent the jury from acquitting him on that charge.

Similarly, the fact that the instructions on the premeditation allegation of attempted murder, the firearm allegations, and the criminal street gang allegations referenced the Peoples duty to prove those respective allegations beyond a reasonable doubt did not render erroneous the giving of CALCRIM No. 220. The inclusion in those instructions of a reference to the Peoples duty to prove allegations beyond a reasonable doubt reinforced that concept in those instructions, but the absence of such a reference in CALCRIM No. 220 does not alter the facts that, for the reasons previously discussed, (1) CALCRIM Nos. 220 and 520, read together, provided adequate instruction on the Peoples burden to prove beyond a reasonable doubt the elements of murder, (2) CALCRIM Nos. 220 and 721, read together, provided adequate instruction on the Peoples burden to prove beyond a reasonable doubt the elements of the multiple-murder special-circumstance allegation, and (3) CALCRIM Nos. 700 and 721, read together, reinforced that the People had a burden to prove beyond a reasonable doubt the multiple-murder special-circumstance allegation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

CROSKEY, Acting P. J.

ALDRICH, J.

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^[1] During the earlier seating of jurors in the jury box, it was determined that two jurors, one of whom was Juror No. 4, had also been assigned the juror number 2093. One of the two jurors knew a police officer involved in this case. It is not clear from the record whether Juror No. 4 was the juror who knew the officer.

^[2] Later, Juror No. 4 answered questions posed by appellants counsel as follows: [Appellants Counsel]: No. 4, you said that you had a brother who was a former attorney. [] [Juror No. 4:] Uh-huh. Hes retired. [] [Appellants Counsel]: Hes retired. What area did he practice in? [] [Juror No. 4:] I believe he practiced in Texas. [] [Appellants Counsel]: Did he ever do criminal law? [] [Juror No. 4:] Hes a step-brother. [] [Appellants Counsel]: Did he do criminal law or family law? [] [Juror No. 4:] Well, we werent that close. We didnt grow up together. We just met each other when I turned 18. So I dont know much about it, but I know he was an attorney.

^[3]People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler); Batson v. Kentucky (1986) 476 U.S. 79 (Batson).

^[4] Of course, because the prosecutor understood that the court had ruled that appellant had not made a prima facie showing of group bias, the prosecutor had less incentive to make an adequate record than would have been the case if the court had ruled differently.

^[5] Because the motion had not been signed by appellants counsel, it was not filed on April 11, 2007, but, according to the reporters transcript of the January 15, 2008 proceedings, it appears the motion was filed on the latter date.

^[6] The instruction continued,  [p]roof beyond a reasonable doubt is proof that leaves you with an [abiding] conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. [] Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. 

^[7] CALCRIM No. 520, read, in pertinent part: The defendant is charged in Counts 1 & 2 with murder in violation of Penal Code section 187. [] To prove that the defendant is guilty of this crime, the People must prove that: [] 1. The defendant committed an act that caused the death of (another person); [] AND [] 2. When the defendant acted, (he) had a state of mind called malice aforethought[.] [] There are two kinds of malice aforethought, express malice and implied malice. Proof of either is sufficient to establish the state of mind required for murder. [] The defendant acted with express malice if (he) unlawfully intended to kill. [] The defendant acted with implied malice if: [] 1.  (He) intentionally committed an act; [] 2. The natural consequences of the act were dangerous to human life; [] 3. At the time (he) acted, (he) knew (his) act was dangerous to human life; [] AND [] 4. (He) deliberately acted with conscious disregard for (human) life. [] Malice aforethought does not require hatred or ill will toward the victim. It is a mental state that must be formed before the act that causes death is committed. It does not require deliberation or the passage of any particular period of time.

^[8] CALCRIM No. 721, read: The defendant is charged with the special circumstance of having been convicted of more than one murder in this case in violation of Penal Code section 190.2(a)(3). [] To prove that this special circumstance is true, the People must prove that: [] 1. The defendant has been convicted of at least one charge of first degree murder in this case; [] AND [] 2. The defendant has also been convicted of at least one additional charge of either first or second degree murder in this case.

^[9] The court (using CALCRIM No. 224) instructed the jury that before they could rely on circumstantial evidence to conclude that a fact necessary to find appellant guilty had been proved, the jury had to be convinced that the People had proved beyond a reasonable doubt each fact essential to that conclusion. The court gave a similar instruction on circumstantial evidence and the special circumstance allegation (CALCRIM No. 704).