P. v. Pascal

Filed 7/22/10 P. v. Pascal CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, James R. Brandlin, Judge. Affirmed.

Charlotte E. Costan, 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 and Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Jerome Pascal of the first degree murder of Damont Johnson (Pen. Code,  187, subd. (a)),[1] the deliberate and premeditated attempted murders ( 664/187) and attempted robberies ( 664/211) of Jose Solis and Rosendo Solis, and one count of felon in possession of a firearm ( 12021, subd. (a)(1)). As to all but the latter conviction, the jury found true the allegations that the crimes were committed for the benefit of a criminal street gang ( 186.22, subd. (b)(1)(C)) and that defendant discharged a firearm causing great bodily injury ( 12022.53, subd. (d)), among other lesser firearm enhancements (id., subds. (b) & (c)). The trial court sentenced defendant to an aggregate term of life in prison, plus an additional term of 103 years to life. Defendant raises numerous claims of error, none of which has merit. We affirm the judgment.

BACKGROUND

I. Prosecution Evidence

A. Attempted Murders and Attempted Robberies of Jose and Rosendo Solis

Defendant is a Hoover Crips gang member known as Squeak. Sometime between 4:00 and 6:00 p.m. on March 18, 2007, he and two or three other black men approached 17-year-old Jose Solis and his 18-year-old cousin, Rosendo Solis, near the intersection of 105th Street and Budlong Avenue in Lennox, an unincorporated area of Los Angeles County. The Solises are not gang members.

One of the men Jose did not notice which -- said, What do you have? and Where are you from? Defendant displayed a gun under his sweater. Rosendo heard defendant say Give us the money, or Ill shoot. The men tried to reach in the Solises pockets, but the Solises pushed their hands away. Defendants accomplices said, Shoot him. Defendant backed away from Jose and fired. The bullet struck Jose in the right thigh. Defendant and the others ran away.

Kevin Lowery, also a member of the Hoover Crips and a key witness to the murder of Damont Johnson, discussed below, witnessed the shooting of Jose Solis. He testified that two or three weeks before the Johnson killing, as he was coming up Budlong, he saw defendant trying to rob a Mexican guy who was with another person at 105th Street. When the victim didnt give him anything, defendant shot him, once.

Both Jose and Rosendo testified that the shooter had a teardrop tattoo below his right eye. Defendant has such a tattoo.

Jose identified defendant as the shooter in a pretrial photographic lineup on April 10, 2007, and later at a live lineup. At trial, Jose was permitted (at his request) to step down from the witness stand to examine defendant closely, including defendants teardrop tattoo. After doing so, Jose positively identified defendant as the shooter.

Rosendo identified defendant at trial. In a pretrial photographic lineup, he did not make an identification. At a live lineup, Rosendo identified defendant, writing: Hes the suspect. Also for the teardrop thats tattooed underneath the eyes. At the lineup, Rosendo recognized defendants face as well as his tattoo.

B. Murder of Damont Johnson

On April 9, 2007, around midnight, Kevin Lowery and defendant were riding on bicycles down Budlong Avenue toward 102nd Street.[2] On the way, they passed Joes Market on Budlong. At 102nd Street they came upon a man, later identified as Damont Johnson, in a truck. Johnson got out of the drivers side of the truck and began arguing with defendant. Johnson said he was from the Playboy Gangster Crips, which is a rival gang of the Hoover Crips, and asked defendant Where you from? Defendant replied, Hoover. Johnson said, Fuck Snoovers, using a derogatory term to refer to the Hoover Crips. Defendant then pulled out a gun and shot him three times. Lowery saw Johnsons face appear to crumple, and he fell to the ground. Lowery took off on his bicycle towards 106th Street.

Defendant caught up with him near Joes Market, and fired four or five times at a truck that they thought was following them. The gun jammed. Defendant gave the gun to Lowery, who unsuccessfully tried to clear the jam and gave it back to defendant. Defendant hid the gun behind a trash dumpster at the apartment where his girlfriend Teca lived.

On the morning of the shooting, Sonia Harmon was at her mothers house at 102nd and Budlong when she heard Damont Johnson, whom she knew from the neighborhood, arguing with two guys in the street where he had just parked his vehicle. She then heard three or four gunshots. She looked out a bedroom window and saw a Hispanic male (Lowery is half Hispanic and very light skinned) and a black male. The male Hispanic was riding his bicycle away real fast. The male black was holding a gun, and was bent over Johnsons body, going through the pockets.[3] He took something out of a pocket (she believed it was money), and then rode away on his bicycle real slow . . . like he wasnt trying to get away. He didnt care who saw him. Harmon then heard two more shots, but did not see who fired.[4]

Los Angeles County Sheriffs Detective Steven Katz, who responded to the scene, observed Johnsons body in the street next to his SUV. Clenched in Johnsons left fist was cash. An autopsy later revealed that Johnson had been shot three times: once in the face, once in the top of the head, and once in the rear left shoulder penetrating the neck. Each shot was independently fatal.

Later that morning, after the killing, Lowery was walking down 106th Street toward Budlong when he was stopped by a Sheriffs deputy. While he was seated in a patrol car, Los Angeles County Sheriffs Detective Joseph Garrido spoke to him. While Lowery was still in the patrol car, his aunt urged him to tell the truth and say who was involved. Lowery then told Detective Garrido that he was not the shooter, but that he knew who was Squeak from the 107th Street Hoover Crips. He also directed Detective Garrido to the gun used by defendant, hidden behind the trash dumpster. At the Lennox Sheriffs station after his arrest, Lowery identified defendants photograph in a photo six-pack.

Using Lowerys information, Detectives Garrido and Katz discovered the gun, a .380 caliber semiautomatic pistol, wedged against a fence pole and the chain link fence behind a dumpster on Budlong. An expended shell casing was jammed inside the ejection port.

At the murder scene, Detective Katz found four spent .380 caliber shell casings, one under Johnsons body and the others in the immediate area. A ballistics comparison showed that two of the casings, including the one found under Johnsons body, came from the gun found by Detectives Garrido and Katz. Two others could have come from the gun, but the comparison was inconclusive. Similarly, projectiles removed from Johnsons body during the autopsy, and two .380 shell casings discovered by Detective Katz just north of Joes Market on Budlong, could have come from the gun, but the comparisons were not conclusive.

The next day, Lowery was interviewed by Sheriffs Detectives Steven Katz and Traci Gonzales. According to Lowerys trial testimony, he was truthful with the detectives, but still did not describe all the details of the shooting. In particular, he did not fully disclose his actions during and after the shooting. Then the detectives told him (untruthfully) that they had found gunshot residue on his hands and the victims blood on his shirt. They also showed him a video from a surveillance camera at Joes Market (the video was played the jury), located three blocks from the murder scene. In the video, Damont Johnsons vehicle passes by, followed shortly by two people on bicycles. After a brief period, the two bicyclists ride past in the opposite direction. A vehicle then appears as if in pursuit of the bicyclists. One of the bicyclists extends his arm, and flashes emanate from the extended hand consistent with muzzle flashes from a firearm. The vehicle comes to a stop, backs up quickly, and disappears from view.

The video was not of sufficient quality to permit identification of the bicyclists. But Lowery recognized himself and defendant. After that, he told Detectives Katz and Gonzales everything he knew about the shooting.

Defendant was in custody in San Bernardino when an arrest warrant issued for him on April 19, 2007. Defendant had been living in San Bernardino at the apartment of his aunt, Tiffany Donson. During a search of that apartment, Donson directed Detective Katz to defendants belongings. He seized a jacket and pair of pants.

Defendant was transported to Los Angeles, and while in custody there his telephone conversations and conversations with cellmates were monitored and recorded. The prosecution transcribed three brief telephone conversations defendant had with his aunt, Tiffany Donson, on April 19 after his arrest. A CD of those conversations was played for the jury. In these conversations, Donson complained that the police had searched her apartment in connection with a killing defendant committed. When defendant professed not to know what she was talking about, Donson accused him of lying. Defendant replied, We on the phone talking Tiff, for one, and then said, I aint did nothing. Later, Donson said that she pray[ed] to God you didnt kill nobody. Defendant replied, Theres been a lot of shit going down man. Thats what Im saying. Theres been a lot of shit. When Donson referred to having given police defendants coat, defendant told her: You aint supposed to give them shit though Tiff, regardless. They aint got no warrant for no mother fuckin. Donson cut him off by saying that they did have a warrant.

Detective Katz testified to particular incriminating statements defendant made in other monitored telephone conversations with Donson. During one conversation, defendant asked, How am I going to prove I wasnt there? He referred to doing dumb shit, and said I just fucked up, I fucked up this time.

Detective Katz also testified to statements defendant made to a cell mate (other portions were not discernable).[5] At one point, defendant said Solo [Lowerys nickname] telling on me, bird. They got me for they got one hot one. Dude was speaking up on some other ones. That Mexican nigga on the set for murder, my nigga. At another point, defendant referred to spitting on Lowery on the bus. In still another portion, he referred to the murder victim by name, Damont Johnson, and said that the nigga from Playboy got hit three times in the head. He added at another point that Goo was at his truck, and then made three popping noises. He referred to handling a gun and the gun getting jammed. Defendant also mentioned his mother trying to create an alibi by saying that he was with her the entire day.

Los Angeles Sheriffs Detective Louie Aguilera testified as a gang expert. Defendant was an admitted member of the Hoover Crips. He had an H tattoo under his left eye, signifying the Hoover Crips, and a teardrop tattoo under his right eye, signifying having been incarcerated.[6] He also had the number 7 on one shoulder and an H on the other, signifying the 107th Street Hoover Crips. He had a SELO tattoo on his chest, a nickname for the 107th Street Crips.

According to Detective Aguilera, the Hoover Crips refer to themselves as Groovers, and when referring to committing a crime against a rival gang member they say that they are going to groove someone. Snoover is a derogatory term for the Hoover Crips. Using the words Fuck Snoovers to a member of the Hoover Crips would likely result in an altercation.

The Hoover Crips controlled the area of the murder 102nd Street and Budlong. The Detective opined that the murder was committed for the benefit of the Hoover Crips, in that it asserted their control over their territory. He likewise opined that the Solis crimes were committed for the benefit of the Hoover Crips.

II. Defense

Defendant testified that he knew Lowery because they belonged to the same gang. He denied that he was with Lowery at the time of the shooting.[7] He also denied being at the location of the Solis shooting.

When arrested for the murder of Damont Johnson, defendant was already in custody in San Bernardino for committing a burglary in the apartment complex where his aunt Tiffany Donson lived. When the Los Angeles County Sheriffs detectives interviewed him in San Bernardino, they said that someone had said that he committed a murder, but they did not tell defendant when or where the crime occurred or the identity of the person who said he was involved. Defendant did not know what they were talking about.

After he received his paperwork at his arraignment, he learned the details of the murder. In his recorded comments to Tiffany Donson and his comments to his cellmate, he was discussing either the burglary he committed at Donsons apartment complex that caused her to move from the location (I just . . . fucked up this time) or the paperwork he received on the murder. He also discussed his paperwork with others in jail, trying to find out what happened. Also, when referring to robbing people when speaking with his cellmate, he was referring to old robberies he committed, not the present charges.

The defense also presented the following evidence: (1) testimony from Detectives Katz and Aguilera concerning Lowerys dishonesty in his initial statements to the police concerning his conduct before and after the killing; (2) testimony by Los Angeles County Sheriffs Deputy David Payne that the suspects in the Solis crimes were described as being one teenage female and two teenage males, all 5 feet, 4 inches tall, the males weighting 150 pounds descriptions inconsistent with defendant who fled into a house on the same block of Budlong where Lowery lived; and (3) a stipulation that while a DNA profile could not be obtained from the stain on Lowerys shirt, stains on defendants clothing matched his profile and excluded Damont Johnson as a donor.

DISCUSSION

Defendant contends that the prosecutor committed misconduct by: (1) failing to provide timely and complete discovery, (2) violating Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) in cross-examining defendant, (3) arguing to the jury that defendant could have admitted certain tape recordings into evidence (even though the court sustained the prosecutors objections to the recordings), and (4) arguing to the jury that Kevin Lowery was not liable for murder because he was not the shooter. In the context of these claims, defendant also asserts certain errors were committed by the court that facilitated or exacerbated the prosecutors misconduct. We discuss defendants various contentions in turn.

I. Discovery

Defendants claims regarding the alleged failures of discovery are unfocused and summary in nature. To the extent we can pin down specifics, none of his contentions is supported by the record.

A. Late Disclosure of Detectives Field Notes

During trial, at a morning session on November 6, 2008, defense counsel noted that it looked like the officer had field notebooks. I asked for that in discovery. I was not given that. Although the record is not entirely clear, it appears that the officer to whom defense counsel was referring was Detective Katz. The prosecutor offered to have this officer make copies of the field notes. Defense counsel complained that this was [l]ate discovery, very late . . . at trial. I need it for all the officers that have the notes. As the trial court pointed out, under section 1054 defense counsel was not necessarily entitled to discovery of all the field notes, but the court nonetheless directed the prosecutor to determine if the field notes were available, and, if so, to make copies for defense counsel.

At the next mornings session, defense counsel stated that she had just received the field notes, and that she had not had a chance to go through them [and] make a determination if theres anything . . . that [she needed] prior to questioning Mr. Lowery. Again, the record is not entirely clear as to whose field notes defense counsel received. But based on documents contained in the clerks transcript on appeal, it appears that the field notes were those of Detective Katz and Detective Gonzales, who had participated in interviewing Kevin Lowery.

The court suggested that defense counsel go ahead with her cross-examination of Lowery, and that if she later discovered additional information on which she wished to examine him, the court would allow her to recall him. Defense counsel them cross-examined Lowery for the rest of the session.

Upon completing her cross-examination of Lowery, defense counsel stated that she better have [Lowery] on call. When the court inquired why, defense counsel stated that she was not sure of whats coming up and did not want to be precluded from calling him if in fact it would be evidence . . . necessary for the defense.

Lowerys attorney expressed concern at the continuing danger to Lowery while he remained in custody in Los Angeles. The court ruled that it would let defense counsel call Lowery now in its case in chief if there were any additional questions defense counsel wished to ask. The court noted that to the extent defense counsel wished to lay any further foundation for introduction of prior inconsistent statements Lowery made to the detectives, she could examine Lowery about such statements now, and then later introduce particular recorded statements, using the detectives to testify as to the voices on the recordings.

Defense counsel replied that she did not need Lowery for that . . . [b]ecause everything Im going to do from here on out is on tape. When the court again inquired why Lowery should remain on call, defense counsel was unable to give a reason except that she did not want to be precluded from [using] something I could have on tape . . . because hes not here. The court stated that it did not see how that could occur. Defense counsel replied, I dont, either. But things happen. The court then released Lowery as a witness.

Based solely on defense counsels initial complaints about late discovery of field notes, defendant asserts that the prosecutor failed to provide timely disclosure of contemporaneous notes of the two key police investigators until the very end of trial when they were already testifying. Without elaboration, he cites the field notes as an example of the prosecutor providing discovery too late for the defense to prepare adequately. The contention is meritless, because: (1) defendant makes no showing on appeal that he was entitled to the detectives field notes as discovery under section 1054 or as exculpatory evidence under Brady v. Maryland (1963) 373 U.S. 83; (2) despite the lack of any showing of entitlement, the prosecution provided copies of the notes; (3) at trial, defense counsel provided no explanation for how the late disclosure of the field notes hindered her cross-examination of Lowery or any other aspect of the defense; and (4) on appeal, defendant merely makes a generalized assertion of prejudice, but makes no attempt to explain the assertion. In short, there was no discovery violation, and no prejudice.

B. Late Disclosure of Lowerys Post-Relocation Crimes

Before defendants trial, while living at his relocation residence in Kings County, Lowery was arrested for burglarizing his fathers home and later confessed to committing three other residential burglaries with accomplices. The Kings County District Attorneys Office charged him with four counts of residential burglary ( 459). He pled guilty to two counts, and was placed on probation for six years subject to various terms, including that he serve 365 days in county jail. He later violated probation, and at the time of defendants trial was awaiting sentencing on the probation violation.

In August 2008, defense counsel subpoenaed records from the Lemoore Police Department and the Hanford California Probation Department seeking documents relating to these crimes. The subpoenas were returnable to the superior court department to which the case was initially assigned, Department C (not the department in which the case was later tried, Department L). At some point (the record is not clear when) the court in Department C gave the subpoenaed documents to the prosecutor to redact any reference to Lowerys relocation address, apparently out of fear for Lowerys safety. On her own, through Detective Katz, the prosecutor also apparently obtained all the police reports in the possession of the Kings County Probation Department.

On October 28, 2008, at a proceeding in Department C, the prosecutor provided defense counsel with copies of all the arrest reports she received through Detective Katz, with Lowerys relocation address redacted. The court provided defense counsel with all of the documents received by the court pursuant to the defense subpoena, again with Lowerys relocation address redacted. Defense counsels only complaint was that she believed she was entitled to know Lowerys relocation address. The court disagreed, and noted that the address was the only information defense counsel did not receive: You have everything else, the police reports, the docket, convictions, so Im not quite sure what else there is that you may need. Defense counsel conceded that the discovery provided might be sufficient, but she had not had a chance to review it. Jury selection began three days later, on October 31. Defense counsel did not complain that the discovery received concerning Lowerys Kings County case was inadequate.

Based on incomplete record references concerning these events, defendant asserts that [o]ver objection, the [subpoenaed] files were given to the prosecutor, and that that the prosecutor intercept[ed] and delay[ed] production of Brady material subpoenaed by the defense. Defendant fails to cite anywhere in the record showing an objection to the court giving the subpoenaed documents to the prosecutor, and we have found none. Further, the prosecutor intercepted nothing; the court in Department C gave the documents to the prosecutor to redact Lowerys address. Moreover, the prosecutor provided defense counsel with discovery of police reports she independently obtained.

Also without support in the record, defendant asserts that [i]t is not known how much, if any, of the impeaching materials was retained by the prosecution. To the contrary, the record shows that the prosecutor held back nothing except (at court order) Lowerys relocation address; the court confirmed the fact of full disclosure on the record.

Defendant asserts that [e]ven assuming the prosecutor turned over all of the materials received from Hanford, the delay itself was prejudicial. According to defendant, the delay prevented him from subpoenaing witnesses to testify concerning two of the four burglary charges on which Lowery was arrested after being relocated. The claim is unsupportable. The relevant facts are as follows.

Shortly before jury selection began, the prosecutor asked for a ruling on what evidence would be admissible to impeach Lowery. The prosecutor suggested that defense counsel be permitted to impeach Lowery with the two residential burglary convictions in Kings County, but not the burglaries that were dismissed, because the latter would potentially require the testimony of other witnesses.

The trial court tentatively ruled that defense counsel could impeach Lowery with his two residential burglary convictions, his awaiting sentencing on his probation violation in that case, and his plea disposition in the instant case and agreement to testify against defendant. But the court tentatively excluded evidence of the two Kings County residential burglary charges that were dismissed.[8]

In response, defense counsel erroneously described the Kings County offenses as a series of robberies, and stated that Lowery was soliciting [younger] teenagers . . . to do robberies. Defense counsel suggested that this evidence showed that Lowery was continuing with his same bad acts.

Under Evidence Code section 352, the trial court ruled that compared to the other evidence available to impeach Lowery, the evidence of the Kings County crimes of which he was not convicted was not particularly probative and would be unduly time consuming. Defense counsel replied, I understand. Ill accept that. At no time did defense counsel complain that she was unable to obtain witnesses because of untimely discovery concerning Lowerys Kings County case. Thereafter, as we have set forth above in footnote 2 and need not repeat here, during Lowerys testimony the jury was presented not only with his two residential burglary convictions, but also with a full picture of the circumstances under which he testified: his plea agreement in the present case, his relocation at public expense, his awaiting sentence on a probation violation in Kings County, his initial refusal to testify at trial, and his ultimate agreement to testify.

On this record, the following is clear: (1) defense counsel received full discovery concerning Lowerys Kings County case; (2) she accepted the trial courts ruling excluding evidence of the burglaries that were dismissed; (3) she did not complain that the supposed untimely disclosure prevented her from subpoenaing witnesses needed to prove the dismissed burglaries; and (4) she had available a host of evidence to present in an attempt to cast doubt on Lowerys credibility, including his two Kings County residential burglary convictions. In sum, defendants claim that late discovery of Lowerys Kings County case prejudiced the defense is not supported by the record.

C. Exclusion of Lowerys Dismissed Burglaries

In connection with defendants claim that the prosecutor failed to provide timely discovery concerning Lowerys Kings County case, defendant contends that the trial courts ruling excluding evidence of the two dismissed Kings County residential burglaries was error. We have already discussed the trial courts ruling. Given the totality of the evidence the trial court ruled admissible to impeach Lowery his plea disposition in the present case, his conviction of two residential burglaries in the Kings County case, and his awaiting sentencing on his probation violation in that case the court did not abuse its discretion in excluding evidence of the dismissed Kings County burglaries. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1124 [trial court has broad discretion under Evidence Code section 352 to exclude evidence].)

D. Additional Alleged Discovery Violations

Defendant refers to several other instances of supposed untimely prosecution discovery: disclosure of the 911 tape of the Solis crimes, a DNA report, a transcript of a recorded conversation defendant had with his aunt, and a CD of Detective Garrido and Aguileras interview with Lowery. Defendant fails to provide a sufficiently specific discussion to explain these incidents and explain how they violated the prosecutions duty of discovery. Moreover, without discussing in any detail how these specific instances affected the defense presentation of its case, defendant simply asserts that these supposed discovery violations were prejudicial because every single item of withheld or delayed discovery, whether inadvertent or intentional, was vital to defense counsels ability to prepare for trial, to challenge Lowerys credibility in front of the jury, and to cast doubt upon the reliability of the Solis witnesses trial testimony.

We will not, on our own, set forth the full record of these instances, and explain why, as to each, the contention is meritless. We simply hold that because defendant fails to provide specific argument describing how the cited instances violated the prosecutions duty of discovery and, if so, how the late disclosure prejudiced the defense, the claims are forfeited (see People v. Stanley (1995) 10 Cal.4th 764, 793 (Stanley) [failure to provide specific argument on sufficiency of the evidence forfeited the contention]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 [failure to support point with reasoned argument and citations to authority waives issue].) As a separate and independent ground, we conclude, from our review of the record, that the claims of discovery violations and prejudice are not supported by the record.

II. Doyle Error

Defendant contends that in her cross-examination of defendant, the prosecutor committed misconduct under Doyle v. Ohio, supra, 426 U.S. 610. A complete review of the record dispenses with the contention.

A. Background

In direct examination of defendant, his attorney asked him about being questioned by Detectives Aguilar and Gonzales after his arrest. Among other things, his attorney asked what the detectives told him about the murder. Defendant testified, in part: They just told me that . . . like I was acting wild, and that now they asked me where was . . . I on a date. I dont remember what date it was. Asked me where was I. I told them I was in San Bernardino the whole time. But I knew they was talking about a murder, but I didnt really understand. I didnt know what was going on . . . specifically what date, or anything like that. At that point I just remained quiet. I was shocked. I didnt know what they was talking about. (Italics added.)

Following this testimony, defense counsel asked defendant whether he was asked to waive his rights. Defendant testified: No, maam. Though they read [me] my rights. Asked me did I want to speak without an attorney present. And I told them that I I kept asking Whats going on? Whats going on? So I never. Defense counsel next asked what the detectives told him when he asked what was going on. Defendant replied: Thats when he told me I was acting wild. . . . You know how detectives do, like they try to like . . . play . . . a mind game with someone. At the time[,] Im really, really confused and shocked, like whats going on. They wont tell me something, like I just sat there. That was it.

In cross-examination probing defendants testimony concerning Detectives Aguilar and Gonzales questioning, the prosecutor asked defendant, without objection, what he meant by the detectives playing mind games. Defendant answered: [L]ike they ask you questions . . . to try to -- I dont know, to try to make you say things I dont know. Im not explaining it. The prosecutor then asked, again without objection, They asked you where you were, what you did; right? Defendant responded, Right.

After an objection was sustained to another question, the prosecutor asked: The night of the murder, where were you? Defendant responded: In San Bernardino. The prosecutor next asked whether he told the detectives that he was in San Bernardino. Rather than testifying, as he had on direct examination, that he told the detectives he was in San Bernardino, defendant replied: They didnt ask me.

The prosecutor then asked: So you didnt tell them that -- . . . you are accused of murder, youre in jail, and you know for a fact that you were in San Bernardino. But you didnt tell the detectives that. Is that what youre telling us? Defense counsel objected on the ground of the right to remain silent. The court overruled the objection. The prosecutor repeated, Is that what youre telling this jury? Defendant answered, Yes. It is this exchange on which defendant bases his claim of Doyle error.

Shortly afterward at side bar, defense counsel stated that defendant did not waive his Miranda rights and had no obligation to explain anything to the detectives because he had the right to remain silent. The court directed the prosecutor to move on to another area, and stated that after a break it might strike the exchange. The prosecutor then questioned defendant on other topics.

After the next break, the court stated that it had done some research, and that under People v. Evans (1994) 25 Cal.App.4th 358, interpreting Doyle, supra, the court intended to strike defendants answers and instruct the jurors that they could not consider that evidence. Thereafter, the court instructed the jury, as follows: Ladies and gentlemen, before we continue with the examination of the witness, there are a few housekeeping matters that I wanted to address with you. [] First, I want to make sure that you understand that all persons have a privilege against self-incrimination. And that if a person is arrested, and theyre given whats commonly referred to as Miranda rights, theyre told by law enforcement that they have a right to remain silent. [] Theyre also admonished that anything they say can and will be used against them in a court of law. That they have a right to a lawyer before making the decision to speak with law enforcement. [] When a person is told that he has or she has a right against self-incrimination, that they have a right not to make a statement, that may not be used against that person for any purposes. [] In other words, if a person elects not to make a statement, the failure to make a statement cant be used to draw some adverse inference that theres some other guilty explanation. [] Because people who are factually innocent may make intelligent decisions not to speak to law enforcement until they have a right to speak to counsel first, and figure out whats going on, et cetera, et cetera, et cetera. [] So to the extent that there could be an inference that after being provided Miranda rights, a person did not make a statement, you may not, I repeat, you may not draw any adverse inferences from that. [] And in this case, Im going to instruct you that you are to disregard any statements allegedly made by this witness to law enforcement. [] Are you all clear on that instruction? Nod your heads affirmatively if you understand. [] Everyone is nodding heads affirmatively.

B. No Error

Under Doyle and its progeny, it is a violation of due process for the prosecution to impeach[] a defendants trial testimony with evidence of the defendants silence after the defendant, having been advised of his constitutional rights under Miranda, . . . chooses to remain silent. (People v. Earp (1999) 20 Cal.4th 826, 856 (Earp).) However, [a]n assessment of whether the prosecutor made inappropriate use of defendants postarrest silence requires consideration of the context of the prosecutors inquiry or argument. [Citation.] A violation of due process does not occur where the prosecutors reference to defendants postarrest silence constitutes a fair response to defendants claim or a fair comment on the evidence. [Citations.] Griffin[v. California(1965) 380 U.S. 609] and Doyles protection of the right to remain silent is a shield, not a sword that can be used to cut off the prosecutions fair response to the evidence or argument of the defendant. . . . [Citations.] (People v. Champion (2005) 134 Cal.App.4th 1440, 1448 (Champion) [no Doyle error where prosecutor questioned defendant about post-Miranda refusal to speak in response to defense claim that defendant was not provided an opportunity to explain his side of the story]; see also People v. Delgado (2010) 181 Cal.App.4th 839, 853 [no Doyle error where prosecutor questioned defendant about telling investigating officer he was no longer willing to cooperate, where defendant testified on direct examination that he answered every question he could].)

In the instant case, defendant testified on direct examination that Detectives Aguilar and Gonzales confronted him about committing a murder and asked him where he was on a particular date. Defendant testified that he told them he was in San Bernardino the whole time. He testified that he was advised of his Miranda rights and was asked whether he wanted to speak without an attorney. However, he did not know what the detectives were talking about, and repeatedly asked, Whats going on? But the detectives would not tell him anything, so he just sat there and remained quiet.

Given this testimony by defendant on direct examination, it was not a violation of Doyle for the prosecutor to ask defendant on cross-examination whether he told the detectives he was in San Bernardino on the night of the murder. He had already testified, on direct examination, that the detectives asked him where he was on a particular date and that he told them that he was in San Bernardino the whole time. Having testified to these facts on direct examination, defendant was not entitled to use his post-Miranda silence to prevent the prosecutor from inquiring about them on cross-examination. To the contrary, the prosecutors inquiry constitute[d] a fair response to defendants claim or a fair comment on the evidence. (Champion, supra, 134 Cal.App.4th at p. 1448.) Moreover, defendants testimony in response to the prosecutors question that the detectives didnt ask, and that he did not tell them he was in San Bernardino contradicted his earlier testimony on direct examination, and was thus independently admissible to impeach that testimony.

In any event, even assuming that the prosecutor violated Doyle, the error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman); see Earp, supra, 20 Cal.4th at p. 858.) The prosecutors examination was brief. The court promptly and forcefully admonished the jury not to draw any adverse inference from defendants failure to make any statement following the Miranda advisement. The prosecutor did not refer to the exchange in argument to the jury. And the evidence against defendant regarding the murder of Damont Johnson was compelling. Kevin Lowerys testimony describing the crime was corroborated in detail by independent evidence, and defendants recorded adoptive admissions to his aunt Tiffany Donson and his admissions to his cellmate independently pointed to him as the killer. Thus, any Doyle error could not have affected the verdicts. (Chapman, supra, 386 U.S. at p. 24.)

III. Ruling Precluding Playing Entirety of Lowery Recording

Defendant contends that the trial court erred in precluding his attorney from playing one or all (defendants precise contention is unclear) of the recordings of Lowerys jail house telephone conversations. The contention is meritless.

At least three months before trial, the prosecution provided defense counsel with a CD that contained the telephone conversations of Kevin Lowery from April 9 through May 19, 2007, while he was in county jail before defendants preliminary hearing. There were apparently (based on a comment during trial by defense counsel) 13 separate conversations on the CD. One of the conversations occurred on April 11, 2007, and was a call Lowery made to his grandmother. Besides the grandmother and Lowery, three other persons participated in the April 11 conversation: Fat, Anthony (Lowerys cousin), Alexis (Lowerys girlfriend), and Shadow. The transcript of the conversation is 20 pages long. In the conversation, Lowery stated (in the only specific portions mentioned in appellants opening brief) that the detectives found the victims blood on his shirt and that the blood came from the gun. In other portions of the conversation, Lowery stated that he said nothing to the detectives, that he could be seen on a tape from Joes Market that showed another person shooting, that he was only a witness to the killing, and that the police were looking for Squeak. There are other portions that have nothing to do with the case.

Defendant contends that the trial court deprived [him] of his constitutional right to present a complete defense by excluding impeachment evidence linking Lowery to the murder. The specifics of the contention are not entirely clear. At one point, defendant appears to complain that the trial court erred in not permitting defense counsel to play all 13 recordings in their entirety. To the extent defendant makes that contention, it is forfeited by his failure to sufficiently articulate how the entirety of the 13 conversations was admissible. (Stanley, supra, 10 Cal.4th at p. 793.)

Elsewhere, defendant appears to contend that the trial court erred in denying defense counsel permission to play the entirety of only the April 11, 2007 conversation. In that regard, the only specific portions of the recording to which defendant refers relate to Lowerys comments regarding having the victims blood on his shirt. Contrary to defendants contention, however, the record shows that the court did not exclude that evidence, or any other evidence from Lowerys recordings that was relevant to impeach Lowerys testimony.

In cross-examining Lowery, defense counsels questioning concerning Loweys prior statements was somewhat scattershot, and the purported inconsistencies between the prior statements asked about and Lowerys testimony was not always apparent. Twice at side-bar, the court reminded defense counsel that if she was going to seek to play any recording of Lowerys prior statements, she was going to have to explain the relevance of those statements. On the second occasion, the court suggested that defense counsel do the following: Look at the questions that youre going to ask him as far as prior statements, and ask yourself the question . . . whether . . . its relevant, whether its probative, whether its a prior inconsistent statement, or whether it deals with his expectations as to his level of cooperation [with the detectives].

During cross-examination, Lowery testified, in substance, that he did not believe that there was blood from the victim on his shirt, and that he did not tell his grandmother, Alexis, Anthony, or anyone else that the blood on his shirt belonged to the victim. After the conclusion of cross-examination, outside the presence of the jury, the prosecutor stated that she intended to object to defense counsel playing any recorded statement unless Lowery had been confronted with the specific statement and denied making it. The court noted that defense counsel was not required to confront Lowery with prior statements verbatim; rather, it was sufficient if the substance of the statement with which he was confronted was inconsistent with his testimony. The court also noted, however, that defense counsel was not necessarily entitled to play the entire recording in which the inconsistent statement appeared. The court ask[ed] [defense] counsel to just examine the information that she expects to be able to get from the witnesses . . . and try [to] tailor accordingly.

Defense counsel stated that the tape she hoped to play was approximately five minutes long. The court stated that it doesnt seem to be unduly long, and that the court would probably not exclude it as long as the statement is otherwise admissible. The court offered to appoint an audio expert for the limited purpose of extracting portions that defense counsel wanted to use. Defense counsel responded, Thats fine. Thats all I need.

The next court session occurred six days later. The record contains no reference to defense counsel asking for the appointment of an expert. At the beginning of the session, the prosecutor stated that defense counsel had just informed her which telephone call she wanted to play (referring to the telephone conversation of April 11, 2007), and that the prosecutor objected to most of it. The prosecutor noted, among other things, that the conversation contained statements with which Lowery had not been confronted. The prosecutor suggested that defense counsel could introduce admissible portions of the recording by examining one of the detectives rather than playing the entire recording.

Defense counsel responded that this tape is full of statements that he [Lowery] indicated that he did not make. . . . The dude had blood on my shirt. Theyre trying to pin that shit on me. They got me on tape. When the court asked defense counsel to explain how these statements were inconsistent with Lowerys testimony, defense counsel responded generally, Because he said he never said that. He said it to everyone. . . . He is telling everyone out there that . . . they have this, they have that. They have DNA. They have . . . gunshot residue. Now, I have 13 tapes to play. And the court suggested that I narrow it down. Hes also talking about a [cell phone] chip. Telephone calls with Anthony.

The court replied that its tentative ruling was that defense counsel could play a recorded statement provid[ed] you can lay the foundation . . . that . . . Mr. Lowery is making a statement thats inconsistent with his testimony, or inconsistent in effect with his testimony. But as far as playing the entire tape, I dont think that the entire tape is inconsistent with his testimony, based on the offer of proof. The court added that defense counsel could also elicit specific inconsistent statements made by Lowery through testimony by the detectives, or by playing the recording of particular statements. The court suggested that defense counsel highlight the portions on the transcript that she believed were admissible.

Thereafter, defense counsel did not seek to play only the admissible portions of the conversation, and did not elicit the contents of the admissible portions of the telephone conversation through the testimony of any detective.

Thus, as the record makes clear, the court did not prevent defense counsel from playing any admissible portion of the April 11, 2007 conversation. Indeed, the court even offered to appoint an expert to permit defense counsel to extract relevant statements from the recording an offer that, at least as far as the record on appeal shows, defense counsel did not follow up on. Nor did the court prevent defense counsel from introducing any such portion by alternative means, such as by the testimony of a detective. And certainly the trial court did not abuse its discretion in ruling that only independently admissible portions of the conversation could be played for the jury. In short, defendants claim of error is based on a mischaracterization of the record. There was no error, and no prejudice.

IV. Prosecutors Comment On Lowery Recordings

In a related argument, defendant contends that [t]he prosecutor committed misconduct by falsely informing the jury that defense counsel could have played all of the [Lowery] tapes if she wanted to. We disagree.

In her rebuttal argument, the prosecutor commented on defense counsels cross-examination of Lowery, as follows: You watched the defense cross-examine him [Lowery]. Went through his very statements, and everything he said. And she has the right, just as I do, to play whatever tape is relevant the court lets us play. And all the recordings. And so he said a lot of inconsistent things. She brought them all up, as you know. He sat on that stand, and he said this defendant, Squeaks, was the shooter. He didnt equivocate. (Italics added.)

At a side bar conference after the prosecutor completed her rebuttal argument, defense counsel objected to the remark regarding having the right to play relevant recordings. The court stated that although it cringe[d] when the comment was made because defense counsel wanted to introduce all the recordings, the comment was not a misstatement, because it was qualified by the reference to relevant recordings permitted by the court.

We agree with the trial court. The prosecutor accurately stated that defense counsel had the right to play any and all recordings that the trial court ruled relevant. In any event, defendant suffered no prejudice. The stray reference to defense counsels ability to play recordings of Lowerys statements could have had no affect on the verdict.

V. Defendants Jailhouse Admissions

Defendant contends that the trial court deprived [him] of trial on an equal playing field by letting Detective Katz read one liners from his personal transcript of defendants jailhouse admissions to his cellmate, and then refus[ing] to let the defense play the recording to test the accuracy of the . . . one liners. There was no error.

A. Background

In the prosecutions case-in-chief, Detective Katz testified that he selected as defendants cell mate in county jail another inmate from defendants gang, David Robinson, because he believed that defendant might discuss the case with him. Detective Katz had no contact with the selected cell mate and did not give him any instructions.

The detective listened to the 5 hour recording of the conversations between defendant and Robinson, some of which was discernable, some of which was not. He made notes of the discernable portions (it was not possible to prepare a transcript of the entire conversation) and testified to certain incriminating statements defendant made on May 2, 2008, namely: (1) defendant said Solo [Lowerys nickname] telling on me, bird. They got me for they got one hot one. Dude was speaking up on some other ones. That Mexican nigga on the set for murder, my nigga; (2) defendant referred to spitting on Lowery on the bus; (3) defendant referred to the murder victim by name, Damont Johnson, and said that the nigga from Playboy got hit three times in the head; (4) defendant said that Goo was at his truck, and then made three popping noises; (5) defendant referred to handling a gun and the gun getting jammed; and (6) he mentioned his mother trying to create an alibi by saying that he was with her the entire day. In discovery, defense counsel had been provided with the recording, the detectives detailed notes of the conversation, and his later type-written report, including the notations of time on the recording where each statement appeared.

Defense counsel objected to this testimony on the grounds that the statements were out of context and that the best evidence would be the actual tape recording with a transcript. The court overruled the objection.

Defense counsel later cross-examined Detective Katz about the inability to create a transcript of the entire conversation. In a proceeding at side bar in which the court overruled the prosecutors objection to the cross-examination, the court also responded to defense counsels comment that the proper procedure would have been for the parties [to] get together and make a determination what can be heard and what is admissible, and that were relying on an officer . . . hearing something that cant be heard [or] interpreted. The court noted that the detective testified to statements that could be heard, and that the court, not counsel, determined what was admissible. As to the playing of the recording of the conversation, the court stated: Youre welcome to spend the next 6 hours, if you want, in your waning hours of the trial in typing up a transcript. . . . Or either party can create a portion of the transcript dealing with [specific statements]. . . . But if you want to play the whole entire tape, youre going to have to provide a transcript. Defense counsel stated that she was entitled to introduce any portions of the conversation necessary to explain the portions introduced by the prosecutor. The court agreed, but noted: Did you notice one glaring condition precedent thats missing, here? [The prosecutor] didnt play that tape. So if you want to play the tape, provide a transcript. If you want to play certain portions of the tape, Ill allow you to provide those portions that are played. But any portion thats played has to come with a transcript.

Later, defense counsel called Detective Katz as a defense witness and examined him about the recording and his one liners. The detective testified that before and after each statement he testified to, there was conversation that was unintelligible. Defendant later testified that his discussion of the details of the case was based on the paperwork he received when he was arraigned.

B. No Error

On appeal, defendant makes no legal challenge to the courts overruling of the best evidence and out-of-context objections. Rather, defendant argues that it was unfair to allow Detective Katz to testify to certain of defendants statements and then preclude defense counsel from playing any portion of the recording without a transcript so as to test [the detectives testimony for] accuracy. We doubt that this contention amounts to a cognizable challenge to the courts ruling. Nonetheless, we discuss it.

California Rules of Court, rule 2.1040(a) provides in relevant part: Unless otherwise ordered by the trial judge, a party offering into evidence an electronic sound . . . recording must tender to the court and to opposing parties a typewritten transcript of the electronic recording. Here, defense counsel made no adequate showing as to why she should be permitted to play any portion of the recording without a transcript. She was provided with full discovery of the conversation at issue, including Detective Katzs specific references to defendants incriminating statements. Thus, she certainly was able to test for herself the accuracy of his testimony by comparing his report with the recording. And she certainly had an opportunity before or during trial to prepare at least a partial transcript of those portions she believed that the detective misinterpreted, or those portions that were necessary to explain the incriminating statements noted by Detective Katz, but she failed to do so. Moreover, she made no specific showing to the court as to what, if any, portion of the conversation she believed necessary to play in order to give context to the detectives testimony. To the extent she appeared to contend that she was entitled to play the entire 5 hour conversation, the court rightfully rejected the claim, given the limited number of excerpts presented by Detective Katz. Finally, in his testimony on direct examination, defendant did not dispute that he made the statements testified to by Detective Katz. He testified, rather, that he was simply discussing the paperwork he had received at his arraignment. In cross-examination, he conceded saying, Nigga from Playboys got hit three times in the head, but again maintained that he was simply discussing his paperwork. In sum, to the extent defendants claim of unfairness amounts to a cognizable legal challenge, the record affirmatively dispels the notion.

VI. Instruction on Lowerys Accomplice Status

Defendant contends that the trial court erred in refusing to instruct the jury that Lowery was an accomplice as a matter of law in the murder of Damont Johnson. Instead, pursuant to CALCRIM No. 334, the court instructed that the jury must determine whether Lowery was an accomplice and, if so, determine whether his testimony was supported by independent evidence tending to connect defendant to the crime. The trial court was correct.

An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. ( 1111.) To be so chargeable, the witness must be a principal under section 31. That section defines principals as [a]ll persons concerned in the commission of a crime, whether . . . they directly commit the act constituting the offense, or aid and abet in its commission . . . . ( 31.) An aider and abettor is one who acts with both knowledge of the perpetrators criminal purpose and the intent of encouraging or facilitating commission of the offense. Like a conspirator, an aider and abettor is guilty not only of the offense he intended to encourage or facilitate, but also of any reasonably foreseeable offense committed by the perpetrator he aids and abets. [Citation.] [] Whether a person is an accomplice within the meaning of section 1111 is a factual question for the jury to determine in all cases unless there is no dispute as to either the facts or the inferences to be drawn therefrom. [Citation.] [Citation.] Thus, a trial court can determine as a matter of law whether a witness is or is not an accomplice only when the facts regarding the witnesss criminal culpability are clear and undisputed. [Citations.] [Citation.] (People v. Avila(2006) 38 Cal.4th 491, 564-565 (Avila