P. v. Zook

Filed 1/31/08 P. v. Zook CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

A jury convicted appellant James Robert Zook of first degree murder for the killing of Daniel Bloomfield. It also found true three firearm allegations. The trial court sentenced him to 50 years to life in state prison. Appellant challenges the performance of his counsel, the admission of certain evidence and the failure to deliver an instruction. We conclude no prejudicial error occurred and accordingly affirm the judgment.

I. BACKGROUND

A. The Stage is Set

The events in question primarily took place in August 2004^[1]in the City of Sonoma, specifically 1700 Bloomfield Road and nearby areas. Mike Astin owned the multiple-acre parcel and lived in the main house with his girlfriend Cheryl Ryan. Others resided there as well including Ms. Ryans son, Andrew Ryan, who lived in a studio apartment with his girlfriend Kimberly Linder. Appellant, Mr. Astins cousin, lived in a barn adjacent to Mr. Ryans studio. Daniel Bloomfield occasionally slept on Mr. Astins couch or in his car in the driveway. Elizabeth Padilla lived in a camper.

Astin stated that everyone on the premises consumed methamphetamine. He collected rent in money and drugs.

A number of people living on Astins property had prior convictions: Astin had a misdemeanor domestic violence conviction; Andrew Ryan had sold methamphetamine, brandished a firearm and was granted immunity in connection with his testimony regarding selling methamphetamine or giving it to appellant ; and Padilla had priors for misdemeanor possession of stolen property and misdemeanor petty theft. Ryan used drugs daily and sold drugs to Bloomfield and others. Linder used drugs on a daily basis and had a prior misdemeanor conviction for automobile theft.

Around the beginning of August, appellant was in a motorcycle accident. He injured his arm and leg and had a cast on his right arm covering his index and middle fingers. He also had trouble with his leg or foot, and may have had a brace and used a walking stick.

Also around the beginning of August, Bloomfield came to the barn to get appellant to help him with something. Appellant was slow getting out of bed. Bloomfield punched him in the face. There was blood all over the kitchen sink; appellant had one big black eye, the other was discolored. Bloomfield did not sustain any injuries.

Some time after the assault, Padilla, appellant and others were smoking methamphetamine. Appellant said that Bloomfield was going to end up just like those other people. The crabs were going to be eating him also. According to Padilla, who tolerated appellant but did not particularly like him, appellant insinuated that he murdered someone and they had gotten eaten by crabs and that was what was going to happen to my friend Dan.

B. August 16

On August 16 appellant stayed at the home of Frank Giampaoli, his cousin. He was there when Giampaoli returned from a hunting trip and helped him clean the rifles. The cast was still on appellants arm; he did not seem too limited in his mobility. Appellant was on pain medication from the motorcycle accident. When Giampaoli talked about hunting, appellant joked about hunting the two-legged kind.

Giampaoli also had his .22-caliber revolver with him on the hunting trip. After he returned, Giampaoli asked his son to retrieve it from the truck and put it away. Ordinarily, Giampaoli kept the revolver in a gun safe, which was in the same room where appellant slept. He believed it had been put in the gun safe while appellant was still on the premises.

Appellant left that afternoon.

C. Interactions between Appellant and Others on August 18

Appellant was in the kitchen of the main house on Astins property the afternoon of August 18. He asked Linder if Bloomfield had been hanging around; she replied that he had.^[2] Appellant seemed irritated and looked drunk. Linder did not like appellant.

Ryan also saw appellant that afternoon. He did not like appellant. Appellant asked Ryan whether he had anything (meaning drugs) for him; Ryan said he did not. Later, appellant told Ryan that Ryan and Kimberly should leave because he (appellant) was going to take care of some business. Ryan asked what this was all about. Appellant went like, poo, with his finger. Ryan indicated the motionputting his index finger and thumb up, like a gun.

Padilla saw appellant that afternoon as well. He had a big smile on his face and carried a duffel bag. Later on that day appellant opened the duffle bag and said he had some business to take care of. Inside the bag was a large handgun. After showing Padilla the gun appellant said, You didnt see that. Padilla replied, See what? and appellant said, Thats right or Good. He also asked Padilla if she had a pipe load to smoke; she did not. Appellant asked Padilla if she had seen Bloomfield; she had not.

Astin returned home from work between 3:00 and 7:00 p.m. Appellant was by the driveway; he was drinking and appeared a bit agitated. Bloomfield was by the barn working on the pickup. According to Astin, appellant said he wanted to harm Dan, cap his ass. Further, appellant mentioned he had a gun and he had a bullet in it for Dan, and Dan was working on a pickup . . . . [H]e was hoping Dan would get the truck running so that they could drive out to the coast and he could cap him out there and the crabs would eat him. Appellant made a motion indicating he had a weapon; Astin saw the pistol. Appellant also said something about watching each others back and asked if Astin wanted anyone else taken care of. Astin told appellant if he did something like that, he would never visit him in jail. However, Astin knew appellant as someone who teased a lot and did not think it necessary to relay this conversation to Bloomfield.

Astin left after half an hour or so to look for Cheryl Ryan. Ryan had left Astin because there were scads of people stopping in all the time and hanging out. Astin was pretty angry that day and wanted everyone to leave, Bloomfield included, although he was not imposing and had been helpful, unlike the others. Bloomfield said he was fixing the truck in order to leave. The truck belonged to appellant. At some point Astin told everyone to get out and leave the premises.

Appellant was watching Bloomfield work on the truck. Padilla approached them and appellant asked her to open his beer. She started to open the can but Bloomfield grabbed it and said he would. Bloomfield handed the can to appellant; appellant thanked him. Tommy Ruano^[3]arrived to pick up Padilla. Appellant got into the front passenger seat of Ruanos car and asked if he had a bowl to smoke. Appellant opened his clothing, revealing a gun tucked in his side and told Ruano he had business to take care of that night. Ruano was not phased by the encounter and did not consider contacting the police or anyone else. Padilla told appellant to get out because she wanted to leave. Appellant exited and Padilla and Ruano left.

D. Appellant Shoots Bloomfield; Encounter with Ryan and Linder

At this juncture Ryan was on the phone, trying to get a ride after his encounter with appellant. Linder was looking out the window. She heard Bloomfield tell appellant: Quit hovering around me. If youre not going to help me . . . just scat. Get away from me. Appellant was sipping beer and looked uncomfortable. Linder was being observant because appellant and Bloomfield had not been getting along. Bloomfield was getting irritated and speaking in a loud voice. He stood up, facing appellant. Appellant grabbed Bloomfields arm with his casted arm and pulled something out of his pants and fired one shot.^[4] Bloomfield asked, What did you do that for? Appellant did not say anything. Bloomfield staggered and fell. Linder saw the gun in appellants hand, pointed down, and identified it in court.

Appellant was calm after the shooting. He took a drink of beer. Ryan closed the window and locked the door. Linder started screaming. Appellant walked over to the door and jiggled the handle. Ryan testified that appellant came to the window and told Linder to calm down and for Ryan not to tell anyone, he was just trying to take care of business. Ryan responded, Whatever. Sure, dude. According to Linder, appellant looked at them both through the window and said something to Ryan to the effect, Keep your girlfriends mouth shut. I was taking care of business. Appellant walked calmly to the house. Ryan and Linder ran up Midpine road.

E. Postshooting

Linder had a friend pick them up. Ryan called 911 and reported the shooting.^[5]

Matthew Brown drove to 1700 Bloomfield early that evening to visit Ryan, but Astin told him Ryan was not there. As Brown approached the road, a man came to his window with his walking stick and asked for a ride, anywhere but here. The man had a cast on his right arm and acted [j]ust like a normal person. Brown dropped the man off at Stormys Restaurant. He believed appellant was the person, but was not 100 percent sure.

Brown went to John Stumps house. Appellant arrived there about five minutes later. Appellant asked Stump if he could borrow a jacket. Stump gave him a sweatshirt. Appellant said, Oh, you dont have to worry about Dan anymore . . . because I just capped him.^[6] Appellant left and walked to the highway. He planned to hitchhike to the coast.

F. Police Response

Sonoma County Deputy Sheriff Mittenthal was dispatched to 1700 Bloomfield Road. Mittenthal and other deputies searched the area but did not find any evidence. Astin spoke with the police but did not mention appellants statements about shooting Bloomfield because he did not realize what was happening. Nor did he recollect having mentioned these statements to anyone before trial.

Mittenthal left and returned 20 minutes later after having received further information that the shooting took place near a blue truck with a tarp on it. He found Bloomfields body under the tarp. Under the body was a cap from a bottle of Camo Ice beer. The police also located Giampaolis revolver from a woodpile covered with leaves and small pieces of wood. The holster was found in the barn loft, along with a bottle of Camo Ice beer.

Bloomfield died from a gunshot wound to the chest and abdomen. A .22-caliber bullet, fired from Giampaolis revolver, was removed from him. The gun was likely fired less than six inches from Bloomfields body.

G. Arrest; Statements While Incarcerated

The police arrested appellant on August 19.

Anthony Padilla found out about the shooting from his mother, Elizabeth Padilla.^[7] In September he was in jail on burglary charges.^[8] Mr. Padilla made contact with a correctional officer, indicating he had information on appellants case. Detective Basurto interviewed Mr. Padilla. He testified that Mr. Padilla indicated he had a conversation with appellant. Appellant said the gun was hidden near or underneath some wood on the property, and described the location. Appellant

indicated that if the gun were to disappear, his case wouldnt be as good. During this interview Mr. Padilla repeatedly asked Detective Basurto to help him with his own case. At trial Mr. Padilla stated he remembered speaking with the detective but could not recall the statements attributed to him.

Giampaoli visited appellant in jail. He asked appellant what was going on. Appellant gestured a finger to his lips and whispered that they have a tendency to monitor conversations. Appellant did not seem too concerned that he involved his cousin by taking the revolver.

Defense

Robert Crowell, appellants stepfather, testified that in mid-July appellant came to his home with Bloomfield. Appellant asked Crowell for the hunting rifles he had given him over the years, indicating he could sell them to buy food. Crowell and appellants mother decided not to accede to his wish. He and his wife were concerned about appellants mental state and his heavy use of alcohol and drugs. Appellant returned after the motorcycle accident about two weeks prior to the shooting. He had a black eye, a brace on his leg and a bandage on his arm. Appellant related how Bloomfield blindsided him, slamming him in the eye. Appellants mother had to open soda cans for him because he could not use his hand for the task.

A private investigator interviewed Ryan on August 24. Ryan indicated that prior to the July motorcycle accident, Bloomfield wanted to get appellant out of bed to help him fix the truck, saying, Come on, you piece of shit. Get out of bed. Help me. This is your fucking truck. They continued arguing. Bloomfield told appellant he was fucking going to start pissing me off . . . . [I]f you dont help me, Im going to go in the garage and Im going to fuck with your bike.

Dr. Thiry-Zaragoza examined appellant several days after the motorcycle accident. He had a fractured finger on his right hand, road rash on his left shoulder and a black eye. A splint was put on his hand. Appellant returned several days later complaining of right elbow and left knee pain. The attending doctor had a knee immobilizer placed on his left knee for support. Subsequently his hand was casted, with the middle and index fingers extended. According to the doctors, appellant could grasp but was limited by pain. He would have some, but not full, motion and probably could not completely oppose the thumb and fourth and fifth fingers. With the cast, appellant could grab an arm.

A blood screen on a sample of Bloomfields blood tested positive for methamphetamine at the lower end of an abusers range. Based on the blood level, toxicologist Bill Posey testified that Bloomfield could have ingested the drug within 12 hours, or come to the tail end of a binge period. According to Posey, chronic users of methamphetamine can experience delusions and sleep deprivation. Coming down off the drug, the methamphetamine addict will experience severe paranoia, lethargy and exhibit aggressive behaviors. Dr. Miranda, with experience as an emergency room physician, added that abusers have a short fuse, easily become verbally abusive and demanding, as well as hostile and confrontational.

II. DISCUSSION

A. Appellant Cannot Sustain His Ineffective Assistance of Counsel Argument

1. Background

During opening statements, the prosecutor asserted that the People intended to prove first degree murder and the required intent to kill, previewing evidence that appellant stole the murder weapon from his cousin several days before the shooting, showed the gun to various witnesses, and made statements signifying his intent to shoot Bloomfield with it. Defense counsel countered with promises that the evidence would show that although appellant possessed the gun he had taken from his cousin, his intent was that he and Bloomfield would sell it for drugs. Moreover, appellant showed the gun to various people for the purpose of letting them know he was there to do business. He and Dan had an arrangement. That was his way of getting some drugs that day. As for the shooting, the evidence would show that Bloomfield gets [sic] very angry and goes from a position of working on this truck and gets right in Mr. Zooks face and says, What the fuck are youand at that point the gun was discharged. From this counsel argued the evidence would not sustain a first degree murder conviction.

At the close of evidence defense counsel requested CALCRIM No. 510 on excusable homicide, reasoning that it was up to the jury to decide what happened in the moment of the shooting, and, reiterating her opening statement, the reason for the taking of the gun was to trade it for drugs, and Dan was the only person who was able to do that. [] Mr. Zook didnt have the relationship with the dealer [Ryan] that he needed to in order to do that. Denying the request, the court added that there was no evidence of that. Nonetheless, during closing argument defense counsel continued to assert that Mr. Zook possessed the gun for purposes of trading it or selling it for drugs and that [Bloomfield] had his own way to do that because Andrew Ryan, an admitted drug dealer, was not dealing with Mr. Zook. And later, [M]aybe that gun was there for trade or take care of business or drugs or trade, but theres nothing that the law says that you cant use that gun for self-defense if the opportunity is there, and thats what happened in this case.

2. Legal Principles

Appellant complains that defense counsel rendered ineffective assistance because she never introduced the promised evidence that his reason for possessing his cousins gun was to sell it for drugs. Further, she did not introduce evidence that the shooting occurred right after Bloomfield angrily stood up, got in appellants face and cursed him. These glaring omissions, he is sure, amount to ineffective assistance of counsel and call for reversal.

To establish ineffective assistance of counsel, a defendant must show that (1) the performance of his or her attorney fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for the unprofessional errors of counsel, the result would have been more favorable to the defendant. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the proceeding. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; People v. Stanley (2006) 39 Cal.4th 913, 954.) Faced with a claim of ineffective assistance of counsel, we defer to counsels reasonable tactical decisions, recognizing the strong presumption that counsels conduct falls within the wide range of reasonable professional assistance. Thus we should not in hindsight second guess reasonable, albeit difficult, tactical decisions, always evaluating counsels decision-making in light of the available facts. (People v. Stanley, supra, 39 Cal.4th at p. 954, citing People v. Weaver (2001) 26 Cal.4th 876, 925-926.)

Whether failure to produce a promised witness amounts to ineffective assistance is a fact-based inquiry that we assess on a case-by-case basis. Additionally, declining to present testimony or evidence promised in an opening statement may be the result of a reasonable tactical decision, depending on the circumstances. (People v. Stanley, supra, 39 Cal.4th at p. 955.) Thus, making a promise about defense evidence in an opening statement and thereafter failing to deliver it is not per se ineffective assistance. (People v.Burnett (2003) 110 Cal.App.4th 868, 885.)

If the record sheds no light on why counsel acted, or failed to act in the manner assailed, an appellate challenge based on ineffective assistance of counsel will not lie unless counsel was asked for an explanation and did not provide one, or there could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Otherwise, it is more appropriate to raise such a claim by way of petition for writ of habeas corpus. (Id. at pp. 266-267.)

3. Analysis

Among other authority,^[9]appellant relies on People v. Corona (1978) 80 Cal.App.3d 684 for the proposition that the failure of counsel to produce promised evidence can deal a devastating blow to a defendants case. There, counsel delivered a premature opening statement, committing to introduce a multitude of defense evidenceincluding alibi (by the defendant and other witnesses), psychiatric evidence and character and other rebuttal witnesseswhich was not fully developed at that time or became irrelevant or obsolete after submission of the case-in-chief. At that juncture the defendant declined all defenses promised and submitted the matter on the prosecutions evidence. (Id. at p. 725.) The reviewing court concluded the defendants cause was prejudiced by defense counsels failure to develop defenses as promised in the opening statement. (Id. at pp. 725-726.) The rulings in Corona and other authority cited by appellant are all grounded in the fact or allegation^[10]that defense counsel failed to produce promised witnesses.

Unlike Corona, here counsel did put on a defense and conversely did not promise to produce witnesses that were never called. Indeed, defense counsel did not name witnesses but instead recited what evidence the jury would hear and what she believed the evidence would showthat is, what she was inviting the jury to infer from the evidence.

Appellants assertion that counsel never introduced promised evidence that appellant only possessed his cousins gun to sell it for drugs is an overstatement. Counsel elicited evidence that a month before the shooting, appellant and Bloomfield asked Crowell for the hunting rifles appellant had given him over the years, purportedly to use for food; Ryan had accused appellant of stealing tools and a gun from him; appellant had taken his cousins gun; Ryan sold drugs; appellant was always asking Ryan for drugs; Ryan did not like appellant and they were not getting along at the time of the shooting; and Linder witnessed Ryan refuse to give appellant drugs. Counsel believed she had presented sufficient evidence to support the inference that the taking of the gun was to trade it for drugs, and [Bloomfield] was the only person who was able to do that [buy drugs from Ryan]. Slender threads of evidence, probably insufficient to defeat the intent to kill element of murder, but not a failure to present a promised defense as in Corona.

Similarly, appellant is adamant that defense counsel did not introduce any evidence that the shooting occurred immediately after Bloomfield stood up, and angrily, got in appellants face, and cursed him. As to the timing and sequence of the shooting, defense counsel was trying to build a case of sufficient provocation to constitute heat of passion. Evidence showed that Bloomfield had previously given appellant a black eye and, prior to appellants accident, threatened to mess with his motorcycle; at the time of the shooting Bloomfield was irritated, speaking in a loud voice and cussed at appellant. He stood up from a kneeling position and faced appellant. Linders preliminary hearing testimony supported defense counsels theory that Bloomfield made the comments about hovering and cussed, Get the fuck away just prior to the shooting. Again, slender threads, but not a failure to present a defense.

Assuming, for purposes of argument, that counsels performance fell below the normal range of competency, we would find the error nonprejudicial. The only person who could have buttressed the defense theory with additional and more direct evidence was appellant. Prior to commencement of trial, defense counsel moved successfully to exclude from evidence statements appellant made during a custodial interview with Sergeant Lawrence in which he admitted firing the gun. The trial court ruled that warnings pursuant to Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) were not properly given but since there was no coercion, the statements could be used for purposes of impeachment. Had appellant testified, he would have been open to cross-examination about his statements that he meant to harm Bloomfield; telling Ryan and Linder on the day of the shooting that he was going to take care of business; telling Astin he was going to cap Bloomfield; and showing several persons the weapon. As well, he could have been impeached with the admissions to Sergeant Lawrence about firing the gun. Further, he could be cross-examined on any claim of accidental shooting or shooting in self-defense. Linder testified she did not see any struggle over the gun and it absolutely did not look like an accident. Finally, appellant would have been cross-examined about his incriminating actions and statements after the shooting. In view of the overwhelming evidence of appellants guilt, failure to present direct evidence to support the inference that appellant lacked intent or the shooting was accidental was not prejudicial. Only appellant could supply the missing information, and if he testified, the door would be open for merciless and damning cross-examination.

B. No Prejudicial Doyle Error

Appellant maintains that his constitutional privilege against self-incrimination and right to due process were violated by admitting evidence of his postarrest silence. He specifically objects to Giampaolis testimony about the conversation he had with appellant in jail several days after appellants arrest. Over objection,^[11]Giampaoli asked appellant what was going on. Appellant gestured a finger to his lips, mentioned monitoring conversations with recording devices, and did not seem concerned about involving Giampaoli by taking the weapon. Defense counsel elicited on cross-examination that appellant said his attorney told him not to talk about the case.

In Doyle v. Ohio (1976) 426 U.S. 610, the United States Supreme Court held that while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested persons silence to be used to impeach an explanation subsequently offered at trial. . . . [] . . . [T]he use for impeachment purposes of [defendants] silence, at the time of arrest and after receiving Miranda warnings, violate[s] the Due Process Clause of the Fourteenth Amendment. (Id. at pp. 618-619, fns. omitted.) Similarly, comments which penalizes the exercise of ones right to counsel is also prohibited. (People v. Huggins (2006) 38 Cal.4th 175, 198.) Where silence is invoked upon questioning by a private citizen, Doyle error does not occur absent a showing that such conduct was an assertion of [the defendants] rights to silence and counsel. [Citation.] On the other hand, when the evidence demonstrates that defendants silence in front of a private party results primarily from the conscious exercise of his constitutional rights, then Doyle should apply. (People v. Eshelman (1990) 225 Cal.App.3d 1513, 1520.)

The People maintain that appellant waived his Doyle challenge by failing to object on that basis in the trial court. We agree with appellant that defense counsels objection pursuant to Miranda was sufficient, as Doyle is but an outgrowth or application of Miranda itself. On the merits, defense counsel elicited that appellant told Giampaoli his attorney advised him not to talk about the case. Thus, contrary to the Peoples argument, Eshelman applies because appellants silence in the face of Giampaolis questioning arose primarily from the exercise of his constitutional rights. However, the error was harmless beyond a reasonable doubt. (People v . Belmontes (1988) 45 Cal.3d 744, 787.)

First, there was no adverse comment by the prosecutor regarding appellants exercise of the right to silence or to counsel. Second, the challenge concerns the limited questioning of Giampaoli about his conversation with appellant. This was a very brief and minor part of the trial. Third, the exchange was never mentioned in closing argument. Fourth, Giampaoli was concerned with the fact that appellant betrayed him by taking the gun. He asked something like What have you done? Whats going on? There is no dispute that appellant took the gun from Giampaoli and fired it. The issue was whether he fired accidentally or in self-defense. On that point the evidence was overwhelming that appellant committed first degree murder. Our review of the entire record establishes beyond a reasonable doubt that absent the error the jury would have convicted appellant of first degree murder. Prior to the shooting, appellant announced to a number of people his intention to harm Bloomfield and displayed the weapon to several witnesses. Linder observed the shooting, saw appellant grab Bloomfield and shoot him when they were inches apart. She saw appellant fidget with his waist before shooting Bloomfield, and saw the gun in his hand. Bloomfield never struggled and the shooting [a]bsolutely did not appear to be an accident. Ryan saw appellant put the gun in his waistband after the shooting. Afterwards, appellant threatened Ryan and Linder and urged them to be quiet. The location of the gun in the woodpile and the tarp over Bloomfields body support an inference that appellant was trying to hide evidence. He then fled the scene and boasted to Stump that he had capped Bloomfield.

C. No Other-crimes Evidence Error

Appellant further contends the trial court violated his due process rights in allowing the prosecution to introduce prejudicial other-crimes evidence. We disagree.

1. Background

Defense counsel submitted an in limine motion seeking, among other points, to prevent prosecution witnesses from testifying to any hearsay. As an example, she noted that Elizabeth Padilla reports that Mr. Zook admitted killing his brother when he was a child, Michael Astin reportedly was told by Mr. Zook that he had killed three people. The court ruled that the statements would be admissible, presumably because they were party admissions and not inadmissible hearsay. However, the court reserved ruling on whether or not for [Evidence Code section] 352 they are going to come in.

Later, during the prosecutions case-in-chief, Elizabeth Padilla testified over defense counsels hearsay objection that appellant said that Dan was going to end up just like those other people. The crabs were going to be eating him also. On cross-examination Padilla explained that she understood appellant to insinuate that he murdered someone and they had gotten eaten by crabs and that was what was going to happen to Bloomfield.

2. Analysis

Appellant is adamant that the trial court should have excluded the other-crimes evidence under Evidence Code sections 1101, subdivision (a) and 352. However, appellant also admits that the statement that crabs would end up eating Bloomfield had some relevancy to elucidate his state of mind at the time he shot Bloomfield.

Under Evidence Code section 1101, subdivision (b), admission of evidence that a person committed a crime is not prohibited when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act. Here, intent to kill and premeditation were at issue. Appellants comment about being eaten by crabs was ambiguous and thus Padillas testimony helped clarify the statement and the statement as clarified was relevant to what appellant intended to do to Bloomfield. Thus there was no error in allowing the evidence.

Nor did the court abuse its discretion in failing to exclude the testimony under Evidence Code section 352, in effect determining that the probative value of Padillas testimony substantially outweighed the probability of prejudice to appellant. Her testimony was highly probative of intent and premeditation. On the other hand, the evidence concerning appellants uncharged acts was no stronger or inflammatory than the testimony concerning the charged offense. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405.) Further, Padillas testimony was brief, and the only evidence concerning uncharged acts. In contrast, the evidence supporting appellants conviction of first degree murder was detailed, abundant and overwhelming. Upon review of this record we find no abuse of discretion.

D. No Error in Refusing CALCRIM No. 336

1. Background

Appellant additionally complains that his due process rights were violated because the trial court refused to instruct the jury pursuant to CALCRIM No. 336 with respect to the testimony of Anthony Padilla. This instruction, which is patterned after Penal Code section 1127a, provides in part: The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating such testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case. (CALCRIM No. 336 (2007-2008 ed.) p. 120.)

During in limine proceedings, the prosecutor reported to the court that Anthony Padilla had been offered nothing in consideration for his testimony or cooperation in the case. Padilla testified at trial that he was in jail in September 2004, and he saw appellant. He did not remember his conversation with appellant, and did not remember the details of his conversation with Detective Basurto. Anthony Padilla did not want to testify in court because he was going to prison and it could be dangerous. The court concurred with the prosecutor that Padilla was not being truthful when he said he could not remember his conversation with Basurto. Thereafter Basurto testified that he interviewed Anthony Padilla in jail, Padilla said appellant told him where he hid the gun and wanted Padilla to move it to weaken the case against him. Padilla wanted help with his own case. Defense counsel unsuccessfully requested CALCRIM No. 336.

2. Analysis

Penal Code section 1127a defines an in-custody informant as a person, other than a codefendant, percipient witness, accomplice, or coconspirator whose testimony is based upon statements made by the defendant while both the defendant and the informant are held within a correctional institution. (Id., subd. (a).) It is true that appellant and Padilla were in custody at the same time, and Padilla had a conversation with appellant during their mutual incarceration. However, at trial Padilla testified that he did not remember his conversation with appellant or the details of his conversation with Detective Basurto.

When the claim of a witness that he or she lacks memory amounts to a deliberate evasion, inconsistency is implied. And, if the record reasonably supports the conclusion that the witnesss I dont remember responses are evasive and untruthful, the trial court properly can admit prior statements. (People v. Ervin (2000) 22 Cal.4th 48, 84-85.) Because the record supports the conclusion that Padilla was deliberately untruthful and evasive, the trial court properly presented his prior inconsistent statements through the testimony of Detective Basurto. However, it was Basurtos testimony that triggered defense counsels request for CALCRIM No. 336. Padillas testimony was not based on statements made by appellant while they both were incarcerated, and hence technically Penal Code section 1127a and CALCRIM No. 336 do not apply. As a practical matter, delivering the instruction would have been confusing because it directs the jury to view the informants testimony with caution. (People v. Saddler (1979) 24 Cal.3d 671, 681.) We note too that appellant did not request a modification of CALCRIM No. 336 in the trial court and does not suggest on appeal that a modified instruction should have been given.

E. No Cumulative Error

Appellant closes with the assertion that the cumulative effect of errors he has identified was prejudicial. There is no cumulative error and no prejudice. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1150.)

III. DISPOSITION

The judgment is affirmed.

_________________________

Reardon, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Sepulveda, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.

^[1]All further dates are in the 2004 calendar year unless otherwise indicated.

^[2]Ryan and Linder had smoked methamphetamine with Bloomfield that afternoon.

^[3]Ruano suffered a prior misdemeanor conviction for giving a false name.

^[4]Linder estimated that appellant shot Bloomfield four or five minutes after Bloomfield started getting irritated with him, and one to two minutes after Bloomfield stood up.

During cross-examination of Linder, defense counsel asked Linder if she recalled testifying at the preliminary hearing that Bloomfield said something to appellant about hovering over him and cussing to Get the fuck away just prior to the shooting. Linder did not remember testifying that Bloomfield made the statements just before he was shot. Defense counsel asked her to read the prior testimony. Linder did, and acknowledged that what defense counsel said was accurate (her prior testimony was not introduced at trial), but stood by her trial testimony. Appellant asserts on appeal that Linders testimony at the preliminary hearing was substantially the same as at trial, but it was not. Linder testified at the preliminary hearing as follows: [A]s soon as Dan got up and turned around fromhe was kneeling; got up, faced Zook, and then Zook just grabbed his arm and shot him. Defense counsel: So this is just after the comment is made between Dan and Zook about something about Get the fuck away or whateverWhat are you doing? Linder: Yeah.

Ryan stated the shooting occurred two to three minutes after Bloomfield asked appellant why the fuck he was crowding him.

^[5]Linder did not talk to the police the day of the shooting because she was concerned about an outstanding warrant. When she did speak to the police, Linder was high. Linder was not truthful to the police about who picked her and Ryan up right after the incident.

^[6]Brown overheard this statement but did not mention it to the police.

^[7]Ms. Padilla did not initially speak with the police because she was on drugs and afraid that the police would find drug paraphernalia in her camper. When she did speak with police, she did not mention anything appellant said about Bloomfield being eaten by crabs.

^[8]Mr. Padilla also suffered a prior conviction for possession of methamphetamine for sale and at the time of trial had been convicted of burglary.

^[9]Appellant also relies on intermediate level federal cases, including Harris v. Reed (7th Cir. 1990) 894 F.2d 871, 878-879 (performance below par because counsel decided not to present defense witnesses without consulting with defendant and without interviewing those witnesses) and Anderson v. Butler (1st Cir. 1988) 858 F.2d 16, 18 (counsel made opening statement after prosecution rested, then rested very next day without producing promised expert witnesses).

^[10]In McAleese v. Mazurkiewicz 1 F.3d 159 (3d Cir. 1993), also cited by appellant, the defendant pursued a writ of habeas corpus in district court asserting ineffective assistance of counsel. The district court concluded on the state court record that counsel promised to present an alibi defense in his opening statement and then failed to call the witness who could establish the defendants whereabouts. (Id. at p. 162.) On the commonwealths appeal, the reviewing court found no promise to produce the alibi witnesss testimony or even to establish that the defendant was in a certain place at the time of the crime. Rather, the record showed a carefully worded recital of evidence that the defendant did produce. (Id. at p. 167.)

^[11]Defense counsel objected on hearsay grounds to the prosecutors inquiry of Giampaoli about the nature of his conversation with appellant, and asked for a sidebar. The prosecutors recap of the sidebar indicates she also possibly objected on Miranda grounds. Defense counsel added that she objected under Evidence Code section 352 as well.