P. v. Griffin

Filed 1/27/10 P. v. Griffin CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Michael D. Wellington, Carl E. Davis,^[1]and Helios (Joe) Hernandez, Judges.^[2] Conditionally reversed with directions.

Cliff Gardner, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Pamela Ratner Sobeck and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and Respondent.

Two dead bodies were found in a parking lot off University Avenue in Riverside, in an area that is notorious for drug sales. The victims had been shot in the head, execution-style.

Three witnesses linked defendant Raymond Griffin to the slayings. One of them  Robert Pruitt had agreed to testify in exchange for a reduced sentence in an unrelated case. This deal was unusual, in that it had been offered to Pruitt, not by the prosecutors office, but rather by the court that was due to sentence him. Defense counsel learned about Pruitts deal in the middle of trial but never used it to impeach Pruitt, apparently because he misunderstood the terms of the deal.

In response to the prosecutors questions, Pruitt testified that he had not been offered leniency by the prosecutors office, which was, of course, technically true. In closing argument, the prosecutor stated that Pruitt doesnt get anything from this, from testifying, which was not true at all. Defense counsel, however, did not object.

Defendant contends that the prosecutor committed misconduct by eliciting false testimony from Pruitt and from another witness and by making false statements in closing argument. Defendant also contends that his trial counsel rendered ineffective assistance by not trying to preclude Pruitt from testifying entirely or, alternatively, by not trying to impeach Pruitt.

We will hold that the prosecutor (Brandon Smith) did indeed commit misconduct, but defense counsel (Christopher Dombrowski) forfeited the misconduct for purposes of appeal. We will further hold that Pruitt could not have been precluded from testifying. Defense counsels failure to impeach Pruitt did fall below an objective standard of reasonableness. However, the failure was not prejudicial, in light of the other witnesses and other evidence that corroborated Pruitts testimony and in light of the flimsiness of defendants alibi defense.

Defendant also asserts instructional error, error in failing to discharge a juror, and error in failing to hear his motion for a new trial. We will reject these claims.

Finally, defendant contends that the trial court erred by denying his posttrial Marsden^[3]motion on the ground that it dealt with past events and was therefore untimely. We agree. Accordingly, we will conditionally reverse and remand with directions to appoint new counsel to represent defendant for posttrial purposes.

I

FACTUAL BACKGROUND

A. The Discovery of the Shooting.

On February 28, 2003, at 1:34 a.m., the police went to University and Douglass Avenues in Riverside in response to several shots fired calls. In a parking lot, next to the Economy Inn, they found the bodies of Tanya Morris and Darrin Hutchinson. Each victim had been shot in the head, twice, at close range. At least three of the bullets had been fired from the same gun; the fourth was too damaged to permit comparison. Hutchinson was holding a plastic bag, and there were beer cans nearby.

B. The Testimony of Sheila Chapman.

Witness Sheila Chapman had prior convictions for burglary, selling drugs, and unlawful possession of ammunition and four prior convictions for theft.

At the time of the shooting, Chapman was living at the Economy Inn. She was using crack cocaine; [s]ometimes she worked as a prostitute. She was a close friend of victim Morris and of Morriss family. She had been told that she resembled Morris from behind.

On February 28, 2003, around 1:30 a.m., Chapman was walking west on University Avenue. She noticed a red car, like a Honda Civic,^[4]going east, toward the Economy Inn. The driver looked at her. He then made a U‑turn and drove past her slowly. She saw his face. He was wearing a gray sweatshirt, with a hood. He turned around again and pulled up next to her. They looked at each other again. He then drove away, toward the Economy Inn.

Two or three minutes later, she heard four shots. In court, Chapman identified defendant as the driver she had seen.

C. Michael Newells Statement to Police.

On or about March 18, 2003, witness Michael Newell was arrested on an unrelated drug possession charge. The police questioned him about the shooting. He told them, [I]f Im in custody, I aint got nothin to say . . . . They responded that, if he had something good that we can use, . . . we will contact the District Attorneys office about your pending case . . . .

Newell then said that Big Wack had killed the victims. He identified defendant as Big Wack. He explained that he had been visiting defendants brother when defendant showed up. Defendant said that, although the police no longer suspected him, he was the one [who] shot the muthafuckers . . . . One of the victims had jacked him, and the other one knew about it . . . . Defendant mentioned that one of the victims was from Compton^[5] and that he was warring with Compton niggers.

Newell claimed that he was glad to talk to detectives because he wanted to turn[] State[]s evidence, and the uniform cops, they couldnt do shit for me . . . .

According to a gang expert, both defendant and Newell were members of the Main Street Crips. On March 21, 2003, the police searched 1815 Seventh Street and 3511 Chicago Avenue; each location was within blocks of the crime scene. The searches revealed that these were crack houses operated by defendant. There was also expert testimony that if there was even a rumor that someone had stolen drugs or money from defendant, it would be almost his job to kill that person.

D. The Testimony of Robert Pruitt.

Witness Robert Pruitt had two prior convictions for robbery and one for drug possession. In addition, he was serving a three strikes sentence for aiding and abetting the sale of cocaine.

At the time of the shooting, Pruitt was living at the Economy Inn and using crack cocaine. On the night of February 27-28, 2003, he was sitting out on the front stairs of the motel. His girlfriend, Sandra Mata, was with him. Around 1:00 or 2:00 a.m., he saw a group of five people three men and two women. One of the women was victim Tanya Morris. Pruitt knew Morris and greeted her. One of the men was victim Darrin Hutchinson; at the time, however, Pruitt did not know Hutchinson. Hutchinson was carrying some beer in a plastic bag.

The group walked past Pruitt, then went around the side of the motel, into the parking lot. Moments later, Pruitt saw defendant walking the way the group had gone. Defendant was wearing a black hooded sweatshirt, with the hood over his head.

Pruitt knew defendant as Wack or Big Wack. They had first met some 15 years earlier, when they were both living in Los Angeles. Defendant had been a member of the Main Street Crips; Pruitt had been a member of the rival East Coast gang.

Pruitt said, Whats going on, Wack? Defendant said, Nothing, but added, Ill talk to you later. I have something . . . to do, something to take care of right quick. Suddenly, Pruitt remembered a rumor that Morris had been involved in a robbery of one of the defendants drug spots[.] He went and peeked around the corner of the motel.

Pruitt saw defendant with the other five people. Defendant seemed to be exchanging some words with Hutchinson. Pruitt then saw defendant take out a gun, point it at Hutchinsons head, and fire. Pruitt turned and went up to a motel room. As he went, he heard three or four more shots. Once inside, he looked out a window and saw two bodies.

Some weeks after the killing, the police interviewed Pruitt. He told them that he saw Morris, then saw defendant, and then heard shots. He did not tell them that he actually saw defendant shooting, because he was scared and didnt want to get involved.

E. The Beating of Newell.

On July 4, 2003, around 2:00 a.m., the police found Newell lying on the ground and screaming. He was on the property directly behind defendants crack house at 1815 Seventh Street. He had several broken fingers, several broken ribs, and a broken lower right leg. His right ankle was broken and pointing a different direction than normal.

Newell told police that he had gone to 1815 Seventh Street (the location of one of defendants crack houses)to visit a friend, but when he got there, he found defendant, defendants nephew, and defendants mother waiting for him. Defendant said This is for snitching, and indicated that he was going to shoot Newell. Newell ran away through the back yard, but when he tried to hop the back yard fence, defendant grabbed his foot. Defendant and the other two people then beat him with bricks.

F. Newells Testimony.

At the time of trial, Newell was in custody for receiving stolen property. He testified that he used to be a Main Street Crip. He admitted having known defendant [p]ractically all our lives.

Newell claimed not to remember any statements that he had made to police. He did admit that his 2003 drug possession case was dropped, and [he] got out[.] He also admitted that he had been assaulted pretty badly and hospitalized.

G. The Testimony of Defendant.

Defendant testified in his own behalf. He admitted prior convictions for unlawful possession of a firearm, the grossly negligent discharge of a firearm, and possession of cocaine for sale. He admitted that he had once been a member of the Main Street Crips. His moniker had been Wacky, Wack or Big Wack. He testified, however, that he left the gang in 1989, because he did not want to have to kill anybody. In retaliation, some friends of his shot him in the back and beat him. As a result of this (plus a bout of cancer), he wore leg braces and walked with a limp.

[D]ue to my disability, defendant testified, my only . . . means of survival was to sell narcotics. He admitted selling drugs at the Seventh Street and Chicago Avenue locations. However, he denied that anyone had ever robbed his drug operations.

Defendant testified that, on the night of February 27-28, 2003, he was in Orange County, visiting some young ladies he had met a week earlier. He went with one Alex Camarena, who lived at the Seventh Street crack house. They left Riverside around 4:30 or 5:00 p.m. On the way, they met up with Alexs girlfriend, Gracie. When they got back to Riverside, between 1:30 and 2:00 a.m., they saw the police already at the crime scene.

Defendant could not remember any of the girls names. He did not know to what city in Orange County he went. On the way there, Alex drove. Defendant drove back but did not remember the route; Alex was giving him directions.

Defendant denied killing the victims. He did not know Hutchinson. He knew Morris [t]hrough the neighborhood, and he considered her a friend. He was upset and hurt when she was killed. He even obtained some information about the murders, which he passed along to her sister. When he learned that he was wanted for homicide, he turned himself in.

Defendant admitted having an altercation with Newell, not because Newell was a snitch, but because defendant found Newell outside his Seventh Street crack house, taking money from his customers. He told Newell to leave, but Newell threw a punch at him. [M]utual combat ensued. After Newell hit defendant with a brick, defendant took it away and started hitting Newell with it. When Newell kicked him, he twisted Newells leg.

H. The Testimony of Alex Camarena.

When Alex Camarena testified, he was in custody for a domestic violence offense. He had two prior convictions for selling drugs. He largely corroborated defendants alibi. However, he testified that they left Riverside between 5:00 and 6:00 p.m., and they went to Santa Ana. He claimed to be unable to remember Gracies last name, even though he had gone out with her for almost a year. He and defendant left Orange County around 2:45 a.m. He guided defendant onto the freeway, then went to sleep.

I. Rebuttal Evidence.

On March 21, 2003, the police first interviewed both defendant and Camarena. Neither of them said that they had been in Orange County on the night of the killing. To the contrary, defendant said that he believed that he had been at the Seventh Street address.

II

PROCEDURAL BACKGROUND

A jury found defendant guilty as follows:

Counts 1 and 2: First degree murder (Pen. Code,  187, subd. (a)), with gang and multiple-murder special circumstances (Pen. Code,  190.2, subds. (a)(3), (a)(22)) and with enhancements for personally and intentionally discharging a firearm, causing death (Pen. Code,  12022.53, subd. (d)).

Count 3: Unlawful possession of a firearm (Pen. Code,  12021, subd. (a)(1)).

Count 4: Unlawful possession of ammunition (Pen. Code,  12316, subd. (b)(1)).

Count 5: Threatening a witness (Pen. Code,  140), with an enhancement for personally inflicting great bodily injury (Pen. Code,  12022.7, subd. (a)).

Defendant admitted three 1-year prior prison term enhancements. (Pen. Code,  667.5, subd. (b).) He was sentenced to 10 years 8 months in prison, plus two consecutive terms of 25 years to life, plus two consecutive terms of life without the possibility of parole.

III

PRUITTS ENTITLEMENT TO A REDUCED SENTENCE

IN EXCHANGE FOR HIS TESTIMONY

As Pruitt admitted, he was serving a sentence of 25 years to life. Unbeknownst to the jury, if he testified truthfully, this sentence was going to be reduced to just 10 years.

Defendant contends that the prosecutor violated due process by eliciting false testimony from Pruitt that he had not received leniency and by stating falsely in closing argument that Pruitt had not received leniency. Defendant also contends that his trial counsel rendered ineffective assistance by not trying to preclude Pruitt from testifying or to impeach Pruitt.

A. Additional Factual and Procedural Background.

As of the date of the preliminary hearing, Pruitt was awaiting trial on a charge of selling cocaine.

At trial, Pruitt testified that he had been convicted of selling cocaine, [a]s a three striker, and as a result, he was serving a life sentence. In response to questions by the prosecutor, he then testified:

Q. . . . And . . . there were no offers of leniency in exchange for your testimony 

A. No.

Q. from my office?

A. No. (Italics added.)

He also testified:

Q. . . . [T]here have been no discussions, and youve been told there will be no discussions about leniency from my office in exchange for your testimony?

A. Thats correct. (Italics added.)

Later that day, defense counsel asked to put something on the record. He indicated that Pruitt after testifying, and while in a holding cell had mentioned that his sentence was now going to be reduced to nine years. Defense counsel had discussed the matter with the prosecutor and had learned the following.

The appellate court (i.e., we) had reversed Pruitts conviction. We held that the prosecutor in Pruitts case committed misconduct by interviewing him about this case in the absence of his counsel. We also held that this could have prejudiced him by preventing his counsel from negotiating some kind of concession in exchange for his testimony in this case. We remanded with directions to the trial court to determine prejudice. (See People v. R.T.P. (May 23, 2006, E036355), previously published at 139 Cal.App.4th 1019, review den. and opn. ordered nonpub. Aug. 16, 2006, S144849.)

On remand, the trial court (per Judge Cahraman) had ruled that, but for the prosecutorial misconduct, Pruitts counsel would have been able to negotiate a sentence of 10 years, on the condition that he testify truthfully in this case. Judge Cahraman had continued Pruitts sentencing until after the trial in this case, so that it could be determined whether he had, in fact, testified truthfully.

Defense counsel introduced supporting written materials, including a transcript of the hearing before Judge Cahraman. He read out loud to the trial court a portion of these materials, which stated that Pruitt was required to testify truthfully. Defense counsel, however, then read out loud Judge Cahramans statement, If [Pruitt] testifies at all, Im going to assume he testified truthfully. Defense counsel therefore conceded that Pruitt did not actually have to testify truthfully he could obtain a reduced sentence merely by testifying.

If defense counsel had read the transcript more carefully, however, he would have seen that Judge Cahraman had immediately corrected himself [N]ot assume, but presume. . . . If the prosecution puts something in writing to convince me that he did not, . . . then Ill deal with it.

According to the transcript, Pruitts counsel had then asked Judge Cahraman:

[PRUITTS COUNSEL]: What, then, would be the standard of the Peoples burden, the standard of proof? Assume, for a minute, [Pruitt] testified, and the People are unhappy with his testimony . . . .

[JUDGE CAHRAMAN]: He nailed himself down in terms of his testimony in the preliminary[ ]hearing transcript. If he testifies at trial that . . . My memorys got cloudy, and I dont really remember any kind of shooting, then he may find himself back in the world of twenty-five years to life.

If theres some little tiny detail that maybe he remembers differently now that several years have passed, Im forgiving in that regard . . . . Because witnesses are human. Theyre not computers. If its anything in between, Ill do my best to decide the in between.

Finally, Judge Cahraman asked:

[JUDGE CAHRAMAN]: Does [Pruitt] . . . wish to make the commitment that he will testify truthfully in the [Griffin] case, if that gets him from twenty-five years to life down to ten years?

[PRUITT]: Yes.

In this case, the trial court concluded that Pruitts testimony that the prosecution had not offered him leniency was accurate, if incomplete. [] In fact, hes going to get a significantly lesser sentence than that, but not . . . as a result of any promise by the D.A. . . . . It also concluded that, to obtain that sentence, Pruitt was not required to give any particular testimony. Defense counsel agreed.

The trial court added, [I]f you wanted to press and put this all in front of the jury, wed spin our wheels for a while, and it would come back to a wash. Again, defense counsel agreed.

In closing argument, the prosecutor stated: Is there any reason to lie for Robert Pruitt? Any whatsoever? He doesnt get anything from this, from testifying . . . . No offers from my office. Hes sitting in a jail cell right now, the same as he was before. He didnt get one thing from this . . . . [H]e didnt get one thing from pointing the finger at this man. Defense counsel did not object.

B. Due Process.

Under well-established principles of due process, the prosecution cannot present evidence it knows is false and must correct any falsity of which it is aware in the evidence it presents, even if the false evidence was not intentionally submitted. [Citation.] Put another way, the prosecution has the duty to correct the testimony of its own witnesses that it knows, or should know, is false or misleading. [Citation.] This obligation . . . applies even if the false or misleading testimony goes only to witness credibility [citations]. Due process also bars a prosecutors knowing presentation of false or misleading argument. [Citations.] [To] summarize[], a prosecutors knowing use of false evidence or argument to obtain a criminal conviction or sentence deprives the defendant of due process. [Citation.] (People v. Morrison (2004) 34 Cal.4th 698, 716-717.)

In fact, outright falsity need not be shown if the testimony taken as a whole gave the jury a false impression. [Citation.] (People v. Westmoreland (1976) 58 Cal.App.3d 32, 42.) For example, in Alcorta v. Texas (1957) 355 U.S. 28 [78 S.Ct. 103, 2 L.Ed.2d 9], the prosecutor knew that a witness had had sexual intercourse with the defendants wife. He told the witness he should not volunteer any information about such intercourse but if specifically asked about it to answer truthfully. (Id. at p. 31.) When the prosecutor asked him about his relationship with the defendants wife, he said he had driven her home from work a couple of times; he said they were not in love and had not been on dates. (Id. at pp. 31-32.) The Supreme Court held that this testimony gave the jury a false impression, in violation of due process. (Id. at p. 32; see also People v. Dickey (2005) 35 Cal.4th 884, 909-910.)

Here, Pruitts testimony that he had not been offered leniency by [the prosecutors] office, while literally true, gave the jury a false impression. After all, this testimony was relevant for one and only one reason: to show that Pruitt had no motive to testify falsely. However, because he had been offered leniency albeit by Judge Cahraman, and not by the prosecutors office he did have such a motive.

Moreover, in closing argument, the prosecutor stepped over the line from the merely misleading to the affirmatively false. He asserted that Pruitt had no reason whatsoever to lie. He then stated: He doesnt get anything from this, from testifying . . . . Hes sitting in a jail cell right now, the same as he was before. This was flatly untrue.^[6]

Defense counsel, however, forfeited the misconduct as grounds for reversal by failing to raise it below. To preserve a claim of prosecutorial misconduct for appeal, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citations.] [Citation.] (People v. Bennett (2009) 45 Cal.4th 577, 595.) Here, as the record shows, defense counsel did learn (albeit belatedly) that Pruitt was expecting leniency in exchange for his testimony.^[7] Nevertheless, he did not argue that the prosecutor had elicited false testimony. To the contrary, he agreed with the trial court that Pruitts testimony was accurate, if incomplete. Finally, he did not object to the prosecutors misleading closing argument.

Defendant argues that a prosecutors intentional introduction of false evidence and argument in violation of [d]ue [p]rocess cannot be forfeited by failure to object. Other forms of prosecutorial misconduct, however, can be forfeited, even when they assertedly violate due process. (People v. Bell (1989) 49 Cal.3d 502, 535, fn. 17.) Defendant does not suggest any reason why the presentation of false testimony should be treated any differently than other due process violations in this respect.

Defendant also cites federal cases holding that a prosecutor violates due process by presenting false evidence, even when defense counsel knows that the evidence is false. (E.g., U.S. v. Alli (9th Cir. 2003) 344 F.3d 1002, 1007.) Whether there is a due process violation, however, is a different issue than whether defense counsel can forfeit the violation by failing to object. On the latter issue, federal cases are not controlling. A state can adopt and enforce its own procedural rules for the presentation of a federal claim. (See generally Wainwright v. Sykes (1977) 433 U.S. 72, 81-87 [97 S.Ct. 2497, 53 L.Ed.2d 594].) Moreover, the analogous federal procedural rule is that failure to object to an error at trial forfeits review on appeal, except under the relatively limited plain error standard. (Fed. Rules Civ. Proc., rule 51(d), 28 U.S.C.; Puckett v. U.S. (2009) ___ U.S. ___, ___ [129 S.Ct. 1423, 1429, 173 L.Ed.2d 266].) This plain error rule applies fully to a claim that a prosecutor has presented false evidence. (Alli, at p. 1007.)

Finally, defendant cites In re Sakarias (2005) 35 Cal.4th 140. That case, however, did not involve assertedly false evidence, nor did it address any issue of forfeiture or waiver. It merely held that the prosecutor was not entitled to pursue inconsistent theories in two separate trials, which required the suppression of inconvenient evidence in at least one of these trials, merely because that evidence had been disclosed to defense counsel. (Id. at p. 163.) Thus, Sakarias is not controlling here.

We therefore conclude that defense counsel forfeited defendants contention that the prosecutor violated due process in his examination and his argument regarding Pruitt.

C. Ineffective Assistance of Counsel.

The standard for establishing ineffective assistance of counsel is well settled. A defendant must demonstrate that: (1) his attorneys performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been more favorable to the defendant. [Citation.] A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.] (People v. Stanley (2006) 39 Cal.4th 913, 954.)

Defendant does not argue that his counsels failure to raise prosecutorial misconduct below constituted ineffective assistance. He does argue, however, that his counsel rendered ineffective assistance (1) by failing to move to strike Pruitts testimony and (2) by failing to try to impeach Pruitt.

1. Failure to move to strike Pruitts testimony.

A prosecutor may grant immunity from prosecution to a witness on condition that he or she testify truthfully to the facts involved. [Citation.] But if the immunity agreement places the witness under a strong compulsion to testify in a particular fashion, the testimony is tainted by the witnesss self-interest, and thus inadmissible. [Citation.] Such a strong compulsion may be created by a condition that the witness not materially or substantially change her testimony from her tape-recorded statement already given to . . . law enforcement officers. [Citation.] [] On the other hand, we have upheld the admission of testimony subject to grants of immunity which simply suggested the prosecution believed the prior statement to be the truth, and where the witness understood that his or her sole obligation was to testify fully and fairly. (People v. Boyer (2006) 38 Cal.4th 412, 455.) The same principles apply to plea agreements. (People v. Allen (1986) 42 Cal.3d 1222, 1252, fn. 5.)

For example, in Boyer itself, a witness named Kennedy testified pursuant to an immunity agreement. According to the written agreement, Kennedy had represented that his testimony would be consistent with his tape-recorded statements to the police. The agreement also stated that Kennedy would not be immune from prosecution for perjury. At trial, on cross, Kennedy testified that he understood that he could be prosecuted if [his] testimony was inconsistent with what [he] had been telling the District Attorney . . . . (People v. Boyer, supra, 38 Cal.4th at p. 455.) On redirect, however, he testified that the prosecution had not told him how he should testify, other than truthfully. (Ibid.)

The Supreme Court stated: The grant of immunity to Kennedy, by its terms, was based on his truthful testimony, which Kennedy himself represented would be in accordance with his prior statements. Thus, the agreement simply reflected the parties mutual understanding that the prior statements were the truth, not that Kennedy must testify consistently with those statements regardless of their truth. Kennedy so confirmed on the stand. Accordingly, Kennedys testimony was not rendered inadmissible by the terms of his grant of immunity. (People v. Boyer, supra, 38 Cal.4th at pp. 456-457, fn. omitted.)

Boyer is controlling here. Indeed, here, the evidence of compulsion is even weaker. It appears that, in Boyer, the immunity agreement did not expressly make the grant of immunity conditional on the witness testifying truthfully; at most, it implied this, by providing that he could be prosecuted for perjury. Here, by contrast, Judge Cahraman made it abundantly clear that a reduced sentence was conditional on Pruitt testifying truthfully. He even continued the sentencing so that he could determine, after the fact, whether Pruitt had in fact testified truthfully. Moreover, when he offered the deal to Pruitt, he described it as a commitment to testify truthfully in exchange for a reduced sentence.

Admittedly, Judge Cahraman also said that, in determining whether Pruitt had testified truthfully, he would compare Pruitts trial testimony to the preliminary hearing transcript. As in Boyer, however, this simply reflected the parties mutual understanding that the prior statements were the truth. Moreover, Judge Cahraman indicated that Pruitt would not be penalized for an insignificant deviation from the transcript, and perhaps not even for a significant deviation; he said, If its anything in between, Ill do my best to decide . . . . In other words, while conformity with the preliminary hearing transcript would be some evidence of truthfulness, the ultimate issue would be truthfulness, not conformity.

In sum, there were no legal grounds for excluding or striking Pruitts testimony. It follows that defense counsels failure to move to strike it was not objectively unreasonable. It also follows that this failure was not prejudicial.

2. Failure to try to impeach Pruitt.

Pruitts deal with Judge Cahraman could have been used to impeach him. [T]he defense is entitled to elicit evidence that a witness is motivated by an expectation of leniency or immunity [citations] . . . . Such evidence is obviously probative of bias or motive. (People v. Dyer (1988) 45 Cal.3d 26, 49-50.)

The first question, then, is whether defense counsels failure to do so fell below the standard of care. Unless a defendant establishes the contrary, we shall presume that counsels performance fell within the wide range of professional competence and that counsels actions and inactions can be explained as a matter of sound trial strategy. [Citation.] If the record sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. [Citations.] (People v. Salcido (2008) 44 Cal.4th 93, 170.) [E]xcept in those rare instances where there is no conceivable tactical purpose for counsels actions, claims of ineffective assistance of counsel generally must be raised in a petition for writ of habeas corpus based on matters outside the record on appeal. [Citations.] (Id. at p. 172.)

The People argue that there could have been several sound strategic reasons for the omission: It prevented the jury from learning that (1) the prosecution had not wanted to offer Pruitt a reduced sentence in exchange for his trial testimony, (2) Pruitts preliminary hearing testimony had been consistent with his trial testimony, and (3) Judge Cahraman had made an implied finding that Pruitts testimony was truthful.

The problem with this argument is that this is one of those rare cases in which defense counsels explanation for the challenged action is in the appellate record. Defense counsel told the trial court that, as he understood it, Pruitt was not required to testify truthfully; he was merely required to testify. Thus, in his opinion, evidence of Pruitts deal was not relevant to impeach him. But defense counsel was mistaken.

We can safely say that, when the single most crucial witness against the defendant has agreed to testify in exchange for a reduced sentence even when that witness is required to testify truthfully most reasonable defense counsel will use the agreement to impeach. We need not decide whether it could ever be reasonable not to impeach, either for the reasons that the People have suggested or for any other reason. The bottom line is that in this case, defense counsel gave up what most reasonable defense counsel would consider a strategic advantage based on a mistake. This was objectively unreasonable.

We turn, then, to the second question, which is whether defense counsels omission was prejudicial. For four reasons, we cannot say that it was.

First, Pruitt knew details that indicated he actually saw the shooting. For example, he testified that Hutchinson was carrying beer in a plastic bag, even though the prosecutor had not shown him pictures of the plastic bag in Hutchinsons hand and had not told him that beer cans had been found at the scene. Likewise, he testified that defendant shot Hutchinson in the head, even though the prosecutor had never shown him photographs of the bodies. Indeed, if Pruitt was lying, one would have expected him to fabricate even more; for example, he could have claimed that he saw defendant shoot both Hutchinson and Morris, but he did not.

Second, other witnesses corroborated Pruitts testimony. Sheila Chapman testified that she saw defendant driving toward the Economy Inn just minutes before the shooting; he seemed to be looking for Morris. On this record, Chapman had no apparent reason to lie. Also, Michael Newell told police that defendant had admitted shooting the victims. He even told them that defendant had said that one of the victims was from Compton, which turned out to be true. Admittedly, Newell, like Pruitt, had some reason to lie; he gave his statement in the hope of obtaining leniency. On the other hand, he was a member of defendants gang and a good friend of defendants younger brother; thus, he was unlikely to choose defendant as the person to inform on especially falsely. Defendant himself indirectly confirmed the truth of Newells statement by beating him savagely for snitching. The jury was made fully aware of Newells possible bias; nevertheless, it evidently found him credible.

Third, while Pruitts deal tended to impeach him, it did so only mildly. If the jury had learned about the deal, it would also have learned that he was required to testify truthfully. It could well have concluded that he was all the more credible.

Fourth and finally, defendants alibi testimony was strikingly unconvincing. He testified that, at the time of the shooting, he was on his way back from partying with some women in Orange County. However, he could not name any of the women; he could not name the city in which he was partying; and even though he drove on the return trip, he could not remember the route. Alex Camarena was supposed to corroborate defendants alibi, but he, too, could not remember the womens last names. He claimed that he could not remember Gracies last name, even though she had been his girlfriend for nearly a year. Most tellingly of all, when the police interviewed both defendant and Camarena, three weeks after the killings, neither of them mentioned having been in Orange County. To the contrary, defendant said he had been at the Seventh Street address.

Defendants testimony was unbelievable even in small respects. To take just one example, he maintained that he was so disabled that he was forced to sell drugs to support himself, yet at the same time he claimed that he had been able to inflict Newells horrific injuries in mutual combat.

On this record, even if the jury had known that Pruitt was entitled to obtain a substantially shorter sentence by testifying truthfully at defendants trial, we see no reasonable probability that defendant would have enjoyed a more favorable result. We therefore conclude that defendant has not shown that defense counsels failure to use this fact at trial to impeach Pruitt amounted to constitutionally ineffective assistance.

IV

CHAPMANS CONNECTION WITH PRUITT

Defendant also contends that the prosecutor violated due process by failing to correct false testimony by Chapman that she did not know that Pruitt was a witness until the preliminary hearing.

A. Additional Factual and Procedural Background.

Pruitt testified that he lived at the Economy Inn. He was not asked whether he knew Chapman.

Chapman likewise testified that she lived at the Economy Inn. On cross-examination, defense counsel asked her if she knew Pruitt; she answered, Yes. He then asked:

Q. . . . Do you know him to be around the area close in time to the incident?

A. Not at that moment, I didnt.

Q. Okay. Did you learn later that he was around there?

A. When we all came to court.

In closing argument, the prosecutor stated: Something that Sheila Chapman told you was that she didnt know Robert Pruitt was a witness in this case until they came to the preliminary hearing. Yet, they are consistent with each other. They didnt get together and conspire against the defendant.

He also stated: There was no connection between these . . . individuals. Robert Pruitt and Sheila Chapman dont even know about each other until the first time theyre asked to come in and testify about what they saw.

At the preliminary hearing, however, both Pruitt and Chapman had testified that they were boyfriend and girlfriend. Chapman had also testified:

Q. And did . . . Pruitt[] tell you what he saw? [] . . . []

A. Not at first he didnt. He did later on.

She then testified that, about a week after the killing, Pruitt told her that he saw defendant shoot Morris.

B. Analysis.

The People concede that the prosecutor committed misconduct by failing to correct Chapmans false testimony. In our opinion, however, this concession is uncalled for.

Chapmans assertedly false testimony is distinguishable from Pruitts. The prosecutor had independent knowledge that Pruitts testimony was false. By contrast, at least as far as the record shows, all he knew was that Chapman had testified one way at the preliminary hearing and a different way at trial. That does not necessarily mean that her trial testimony was false.

When . . . the prosecution has doubts as to the truth of a statement it intends to present at trial, it must disclose to the defense any material evidence suggesting that the statement in question is false. But, notwithstanding those doubts, the prosecutor may still present the statement to the jury . . . . (People v. Harrison (2005) 35 Cal.4th 208, 242.) Of course, in this case, it was defense counsel who actually presented the statement to the jury. Nevertheless, it follows that the prosecutor was not required to correct Chapmans statement. Moreover, he could properly rely on it in closing argument.

The prosecutor, however, did commit misconduct in one respect. He knew, from the preliminary hearing testimony, that Pruitt and Chapman were boyfriend and girlfriend. At trial, Chapman was asked if she knew Pruitt, and she admitted that she did. Nevertheless, in closing argument, the prosecutor asserted, There was no connection between these . . . individuals. This affirmatively misstated the facts.

Once again, however, defense counsel failed to object to the misconduct. For the reasons already stated in part III, ante, this forfeited the misconduct for purposes of appeal.

V

INSTRUCTION THAT THE PROSECUTION WAS NOT

REQUIRED TO PROVE THE EXACT DATE OF THE CRIMES

Defendant contends that, in light of his alibi defense, the trial court erred by instructing that the People were not required to prove that the crime occurred on February 28, 2003.

A. Additional Factual and Procedural Background.

At the request of the prosecution, the trial court instructed: Its alleged in the charging document in this case that the crime occurred on February 28th, 2003. The People are not required to prove that the crime took place exactly on that day, but only that it happened reasonably close to that day. (Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 207.)

B. Analysis.

Preliminarily, the People argue that defense counsel forfeited this contention by failing to object to the instruction below. No objection is necessary, however, to preserve a claim that an instruction violated a defendants substantial rights. (Pen. Code,  1259; People v. Kelly (2007) 42 Cal.4th 763, 791.)

The People argue that the instruction did not violate defendants substantial rights because, even if erroneous, it was harmless. This argument is ultimately circular; it would mean that we could not determine whether the contention has been forfeited without addressing at least the prejudicial-error component of the contention on the merits. For this reason, the mere fact that defendant is claiming that the instruction violated his substantial rights is sufficient to preclude forfeiture. (See People v. Salcido, supra, 44 Cal.4th at p. 155 [[b]ecause defendant contends the instruction reduced the prosecutors burden of proof, thus affecting one of his fundamental constitutional rights, we entertain the claim on its merits]; see also People v. Prieto (2003) 30 Cal.4th 226, 247-249 [holding that defendants failure to object did not forfeit claim of instructional error but finding error harmless].)

It has been held to be error to give an instruction like CALCRIM No. 207 when the defendant is relying on an alibi defense. (People v. Jones (1973) 9 Cal.3d 546, 557 [CALJIC No. 4.71], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 and Hernandez v. Municipal Court (1989) 49 Cal.3d 713, 719; People v. Seabourn (1992) 9 Cal.App.4th 187, 192-193 [CALJIC No. 4.71].) The use notes for CALCRIM No. 207 even state, This instruction should not be given . . . when the evidence demonstrates that the offense was committed at a specific time and place and the defendant has presented a defense of alibi or lack of opportunity . . . . [Citations.] (Use note to CALCRIM No. 207 (2007-2008 ed.) p. 40.)

In People v. Seabourn, supra, 9 Cal.App.4th 187, however, the error was held harmless beyond a reasonable doubt, in part because the evidence was overwhelming (id. at p. 194), but also because the instruction did not actually prevent the jury from considering the defendants alibi defense: [T]he facts offer no support for giving of CALJIC No. 4.71. The prosecution presented facts and argument specifying the exact dates and times when the crimes occurred. The defendant likewise provided alibis for those dates and times. [] At most the giving of CALJIC No. 4.71 might confuse a jury where there is no evidence to support it. However, under the facts here, where the entire case was based upon specific times and places, such confusion would not have taken place. (Ibid.)

The challenged instruction merely told the jury that the prosecution was not required to prove that the crimes occurred on February 28, 2003. However, the prosecution did prove that the crimes occurred on February 28, 2003. Moreover, it proved that they occurred within minutes of 1:30 a.m. Defendant provided an alibi for this time. The trial court gave an instruction on alibi. (CALCRIM No. 3400.) Both sides addressed the merits of the alibi defense in closing argument. We simply cannot imagine that the jury understood the challenged instruction to prevent it from considering defendants alibi defense.

VI

INSTRUCTION ABOUT THE FACT THAT CAMARENA WAS IN CUSTODY

Defendant contends that the trial court erred by instructing the jury not to consider the fact that Camarena was in custody as evidence of his credibility.

A. Additional Factual and Procedural Background.

When Camarena testified, he was in custody. He explained that he had been wanted for both domestic violence and a parole violation. Thus, when [he] came to court today, [he] anticipated being arrested and going into custody . . . [.] Nevertheless, he had appeared, [t]o come over here and speak the truth.

At the request of the prosecution, the trial court instructed: When three witnesses, Robert Pruitt, Michael Newell, and Alex Camarena[,] testified, they were physically restrained. Do not speculate about the reason. You must completely disregard this circumstance in deciding the issues in this case. Do not consider it for any purpose or discuss it during your deliberations. Evaluate the witnesses testimony according to the instructions I have given you.

Also, when those same three witnesses, Robert Pruitt, Michael Newell, and Alex Camarena[,] testified, they were in custody. The fact that a witness is in custody does not, by itself, make a witness more or less believable. Evaluate the witnesses testimony according to the instructions Ive given you . . . . (CALCRIM No. 337.)

B. Analysis.

Once again, the People argue that defense counsel forfeited this contention by failing to object to the instruction below. They rely on the general principle that a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language. [Citation.] (People v. Hudson (2006) 38 Cal.4th 1002, 1012.) Defendant, however, is arguing that the instruction was not correct in law. Hence, he had no duty to request a clarification or to object. (Ibid.)

Defendant argues that, under the circumstances of this case, the fact that Camarena was in custody when he testified was highly probative of his credibility he had sacrificed his freedom [t]o come over here and speak the truth.

We agree. However, we do not agree that CALCRIM No. 337 said anything to the contrary. It merely stated, The fact that a witness is in custody does not, by itself, make a witness more or less believable. (Italics added.) This is a correct statement of the law. Indeed, it benefited defendant it cautioned the jury not to infer, from the mere fact that Camarena was in custody, that he was a liar. It did not preclude the jury from inferring, from the additional fact that Camarena was in custody because he wanted to testify for defendant, that he was telling the truth.

Admittedly, the first portion of the instruction precluded the jury from considering the fact that Camarena was in physical restraints at all. However, the fact that he was in physical restraints was different from the fact that he was in custody a distinction drawn in the instruction itself. The fact that he was in physical restraints added nothing to his credibility, and the jury was properly instructed to disregard it.

Defense counsel evidently understood the instruction the same way we do. He affirmatively argued to the jury that it should infer that Camarena was credible:  . . . Mr. Camarena . . . thought it important enough to come into this court and know that he was going to be locked up, period, but he still came, and he still testified.

We therefore conclude that the trial court did not err by giving CALCRIM No. 337 with respect to Camarena.

VII

REFUSAL TO DISCHARGE A JUROR BASED ON

THE JURORS QUESTION CONCERNING DEFENDANTS TEARDROP TATTOO

Defendant contends that the trial court erred by refusing to discharge a juror who asked if he could tell the other jurors that defendants teardrop tattoo meant that defendant had killed someone.

A. Additional Factual and Procedural Background.

Defendant had a number of tattoos, including one of a teardrop under his left eye. He explained:

A. Thats a teardrop for a friend of mine that was killed that grew up under me.

Q. What was the name of the friend?

A. Uh, Gump. What I call this teardrop is a tattoo of love. It has different definitions to it. It depends on the beholder. Some people wants to recognize being from prison and things like that. Mine was out of love of a friend that came to the neighborhood.

During deliberations, Juror No. 5 sent out a note stating: One of the defendant[]s markings was a teardrop near his eye. Can I tell the panel that my understanding of such a mark is that such a mark is given to someone who has passed his final initiation by having killed someone[?]

With defense counsels concurrence, the trial court questioned Juror No. 5 outside the presence of the other jurors. Juror No. 5 confirmed that he had not yet shared his understanding with the other jurors. He stated, Where I got it from, I dont know. Its just something that . . . Ive understood for probably 30 or 35 years. When asked how sure he was that it was correct, he answered, Maybe it is. Maybe it isnt. The court then asked:

THE COURT: Are you open to the idea that a mark like that can mean a lot of things, depending on what neighborhood, what time in history, a wide variety of factors?

[JUROR NO. 5]: Yeah, Im open to that, but Im also open to the fact that whatever it means, it doesnt have anything to do with this case.

THE COURT: Explain a little more, if you will, what you mean by that.

[JUROR NO. 5]: Well, I mean, the defendant is on trial for two specific acts that were allegedly committed in 2003, and whatever marks he has on his body that werent explored during testimony have nothing to do with this.

The juror also said he was open to the idea that [he] might be wrong about this[.] He agreed that his understanding would play no role whatsoever in [his] deciding the issues in this case[.]

The trial court told him,  . . . I direct you to allow this to play no role whatsoever in your deliberations. He confirmed that he could follow that instruction.

Defense counsel moved to discharge the juror. The trial court denied the motion. It stated: I believe, looking at and listening to this person, that he has not wedded his view, recognizes that it may be incorrect, recognizes that there is no evidence in the case supporting it, and that he is obligated to rely only on the evidence, and it is striking to me that his saying it has nothing to do with the case is something that came out of his mouth unbidden. It wasnt in response to a question by me. It was spontaneous . . . . [] I do not believe that he meets the requirements for a challenge for cause to be removed from the jury. I dont think he is prejudiced in a way that the law requires it, and I dont believe he has committed any misconduct.

B. Analysis.

[Penal Code s]ection 1089 authorizes the trial court to discharge a juror at any time before or after the final submission of the case to the jury if, upon good cause, the juror is found to be unable to perform his or her duty. A trial court has broad discretion to investigate and remove a juror in the midst of trial where it finds that, for any reason, the juror is no longer able or qualified to serve. [Citation.] A jurors inability to perform must appear in the record as a demonstrable reality and bias may not be presumed. [Citations.] [Citation.] We review the trial courts determination for abuse of discretion and uphold its decision if it is supported by substantial evidence. [Citation.] (People v. Bennett, supra, 45 Cal.4th at p. 621.)

The record fails to establish that Juror No. 5 was unable to perform his . . . duty. He indicated that his understanding might be mistaken, and in any event, he could put it aside and decide the case based strictly on the evidence. (See People v. Farnam (2002) 28 Cal.4th 107, 139-142 [three jurors witnessed purse snatching from fourth juror during trial; each of the four jurors expressed an understanding that the purse snatching had no relation to the crimes allegedly involving defendant, and each indicated that she could be fair]; People v. Manriquez (1976) 59 Cal.App.3d 426, 428-432 [juror was victim of armed robbery during trial and discussed this with other jurors; the court was entitled to believe the jurors when they stated the experience would not affect them].)

Defendant argues that the trial court had discretion to discharge the juror, even if the juror was able to perform his duties. He therefore argues that the trial court applied an incorrect legal standard. He cites People v. Bell (1998) 61 Cal.App.4th 282, but that case does not support his argument. To the contrary, it says: The court must make a reasonable inquiry to determine whether the person in question is able to perform the duties of a juror. [Citation.] If the answer is in the negative, the inability to perform those duties must be shown on the record to be a demonstrable reality. [Citation.] (Id. at p. 287.) There was no such showing here.

VIII

DEFENDANTS POSTTRIAL MARSDEN MOTION

Defendant contends that the trial court erred by denying his posttrial Marsden motion.

A. Additional Factual and Procedural Background.

Prior to sentencing, defendant filed a written Marsden motion. In it, he argued that his trial counsel had rendered ineffective assistance by (1) proceeding to trial after he had had the case for only 45 days, and therefore without an adequate investigation; (2) failing