P. v. Ali
Filed 2/7/13 P. v. Ali CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
AHMED ALI,
Defendant and Appellant.
D058357
(Super. Ct.
No. SCD215890)
APPEAL from
a judgment of the Superior Court
of
County, Jeffrey F. Fraser, Judge. Affirmed.
A jury found Ahmed Ali guilty of
one count of murder (Pen. Code,
§ 187, subd. (a))
name="_ftnref1" title="">[1];
four counts of attempted murder
(§§ 187, subd. (a), 664); two counts of
vehicle (§ 246); one count of being a convicted felon in possession of
a firearm (former § 12021, subd. (a)(1)); and one count of unlawfully
possessing a firearm (former § 12316, subd. (b)(1)). The jury further made true findings on
firearm and criminal street gang enhancements (§§ 12022.53,
subds. (c), (d), (e)(1), 186.22, subd. (b)(1)). The trial court sentenced Ali to an
indeterminate prison term of 135 years to life, plus a determinate term of 60
years.
Ali argues that the judgment should
be reversed because (1) the prosecutor committed prejudicial discovery
violations; (2) the trial court should not have admitted the preliminary
hearing testimony and other statements by a central prosecution witness who was
deceased at the time of trial; (3) the trial court should have granted
immunity to two defense witnesses who refused to testify; (4) the trial
court should have admitted those witnesses' statements through the testimony of
investigators who could have related the witnesses' relevant out-of-court
statements; (5) the trial court should have instructed the jury concerning
evidence of third party culpability; (6) the trial court should have
instructed the jury how to view the testimony of witnesses who received
benefits from the prosecution; (7) the prosecutor committed misconduct
during closing argument and by engaging in discovery violations; (8) the
trial court should have granted the motion to release juror contact
information; (9) the trial court should have granted the motion for a new
trial based on prosecutorial misconduct and juror misconduct; and (10) the
cumulative effect of the alleged errors requires reversal. Ali also requests that we review sealed
records to evaluate whether the trial court erred in ruling on certain
discovery motions. We conclude that Ali
has failed to establish reversible error, and accordingly we affirm the
judgment.
I
FACTUAL
BACKGROUND
On the night of July 22, 2008, shootings occurred at
two different locations in San Diego.
The first shooting occurred around 9:30 p.m. when two men walked up to and
shot at a car that was driving out of the Harbor View apartment complex. The apartment complex was known as a location
where members of the Neighborhood Crip gang congregated. One witness described the apartment complex
as a "war zone" between the Neighborhood Crip gang and the nearby Lincoln
Park gang.
Three men were riding in the targeted car, at least two of whom were
affiliated with the Neighborhood Crip gang.
Before shooting at the car, one of the shooters said, "What's up,
cuz," with "cuz" being a term that refers to Crip gang members. Bullets struck the car, but no one in the car
was shot or seriously injured. A bullet
also entered a nearby residence.
The second shooting, which occurred
at an apartment complex on College Avenue,
was reported to police shortly before 11:00 p.m. Two men approached a group of people
congregating by the stairs at the apartment complex and opened fire. Larry Lumpkin was fatally shot in the
head. Maurice McElwee sustained a minor
gunshot wound to his chest. Although the
College Avenue apartment complex was not in any particular gang's territory, it
was a common place for members of the O'Farrell Park and Skyline Piru gangs to
congregate. Those gangs were rivals of
the Lincoln Park gang. Some of the
people fired upon at the College Avenue apartment complex were members of the
O'Farrell Park or Skyline Piru gangs.
On August 7, 2008, the police
received information about both shootings when a member of the Lincoln Park
gang, Jesse Freeman, spoke to police after being arrested on an unrelated
offense. Freeman told police that a
fellow Lincoln Park gang member, Ali, claimed to have committed both of the
July 22, 2008 shootings along with someone named "L" or
"Lex." Freeman also gave
police information about other crimes, including bank robberies, committed by
different Lincoln Park gang members.
Freeman made similar disclosures to police in subsequent interviews.
After the disclosure from Freeman,
police examined the ballistics evidence from the two July 22, 2008 shootings
and discovered that the same firearm was used in both incidents. Police next searched Ali's apartment and found
a shell casing that was shown through forensic analysis to have been discharged
from a gun that was fired at both of the July 22, 2008 shooting scenes.
Police arrested Ali in connection
with the July 22, 2008 shootings.
Freeman testified at a preliminary
hearing held on November 14, 2008, describing Ali's admission to committing
the shootings. According to Freeman's
testimony, Ali told him that he carried out the shootings to " 'put in some work' " for the Lincoln
Park gang and get at members of rival gangs.
Because Freeman was in danger from having testified against a fellow
gang member, the police relocated Freeman to Arizona after the preliminary
hearing. Freeman was found dead under a
freeway overpass in Arizona on November 22, 2008, having suffered blunt force
head trauma. Local police investigation
into Freeman's death was inconclusive as to whether the death was a homicide, a
suicide or an accident.
Ali was tried for one count of
murder based on Lumpkin's death (§ 187, subd. (a)); four counts of
attempted murder based on the chest wound to McElwee and the shots fired at the
three victims in the car at the Harbor View apartments (§§ 187,
subd. (a), 664); two counts of shooting
at an inhabited structure or vehicle (§ 246); one count of being a
convicted felon in possession of a firearm (former § 12021,
subd. (a)(1)); and one count of unlawfully possessing a firearm (former
§ 12316, subd. (b)(1)). The
information also alleged firearm and criminal street gang enhancements
(§§ 12022.53, subds. (c), (d), (e)(1), 186.22, subd. (b)(1)).
Because Freeman was no longer alive
at the time of trial, his preliminary hearing testimony was read into the
record at trial. The jury also heard
recordings of Freeman's interviews with police.
Among the other evidence against
Ali at trial was the testimony of two eye witnesses. First, one of the men who came under fire at
the College Ave apartments on July 22, 2008, testified that he picked out Ali
from a photographic lineup in February 2009 as one of the shooters, stating
that he was 60 to 70 percent certain at the time of the identification. Second, a teenage boy, James Gomez, who saw
the shooters at the College Avenue apartments before they opened fire,
identified Ali as one of the shooters.
Ali presented testimony from
friends and family members, who said they were with Ali at his apartment at the
time of the shootings. Defense counsel
argued that instead of Ali committing the shootings, Freeman or some other
Lincoln Park gang member could have committed them and could have framed Ali,
or the shootings could have been committed by someone associated with a
different gang.
The jury convicted Ali on all
counts, and the trial court sentenced him to prison for an indeterminate prison
term of 135 years to life, plus a determinate term of 60 years.
II
DISCUSSION
A.
Concerning Discovery in This Action Requires Reversal of the Judgment
We
first discuss several issues relating to the conduct of discovery in this
action.
1.
Motion for Discovery of Investigating Officer Personnel Files
Prior to trial, Ali made motions
for discovery of information in the personnel files of (1) San Diego
Police Detective Duane Malinowski; and (2) San Diego County District
Attorney investigator Shane Lynn.
Malinowski was the arresting officer on Ali's case, and Lynn was heavily
involved in investigating the shootings for which Ali was convicted. Specifically, Ali sought evidence from
Malinowski's and Lynn's personnel files, encompassing — among other things —
evidence of dishonesty and excessive use of force or aggression. The trial court determined that evidence
showing a pattern of harassing gang members as to Malinowski and allegations of
fabrication of evidence and threatening witnesses as to Lynn would be relevant
in this case.
The trial court reviewed the
relevant personnel records in camera for the purpose of determining whether
they contained such items and found no discoverable material. On appeal, Ali requests that we review the
personnel records provided to the trial court in camera to determine whether
the trial court abused its discretion in determining that no information from
Malinowski and Lynn's records should be provided.
request.
A defendant is
entitled to discovery of a law enforcement officer's confidential personnel
records if those files contain information that is potentially relevant to the
defense. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538); Evid. Code,
§§ 1043-1045.) The discovery
procedure has two steps. First, the
defendant must file a motion seeking such records, containing affidavits
"showing good cause for the discovery or disclosure sought [and] setting
forth the materiality thereof to the subject matter involved in the pending
litigation." (Evid. Code,
§ 1043, subd. (b)(3).) If good
cause is shown, the trial court then reviews the records in camera to determine
whether any of them are relevant to the intended defense. (Id., § 1045, subd. (b).)
A trial court's decision on the discoverability of material in police
personnel files is reviewable under an abuse of discretion standard. (People v. Breaux (1991) 1 Cal.4th
281, 311-312.)
Following established procedure,
"the records have been made part of the record on appeal but have been
sealed, and appellate counsel for defendant have not been permitted to view
them." (People v. Hughes
(2002) 27 Cal.4th 287, 330; see also People v. Mooc (2001) 26 Cal.4th
1216, 1232.) We have independently
examined the personnel files in camera.
Based on that review, we conclude that the trial court did not abuse its
discretion in refusing to disclose any further information from those files.
2.
the Prosecution Was Entitled to Withhold Certain Confidential Evidence
Ali also requests that we review sealed
records to determine whether the trial court abused its discretion in
determining that good cause had been shown for the prosecution to withhold
confidential information in discovery.
We begin with the applicable
statutory background. Under section
1054.7, the prosecution is required to provide discovery to the defense as
described in section 1054.1, "unless good cause is shown why a disclosure
should be denied, restricted, or deferred." (§ 1054.7.) Good cause is statutorily limited to
"threats or possible danger to the safety of a victim or witness, possible
loss or destruction of evidence, or possible compromise of other investigations
by law enforcement." (
Similarly, under Evidence Code section 1040, subdivision (b)(2), a
public entity has a privilege to refuse to disclose official information if
"[d]isclosure of the information is against the public interest because
there is a necessity for preserving the confidentiality of the information that
outweighs the necessity for disclosure in the interest of justice . . . ." (Evid. Code, § 1040,
subd. (b)(2).) Both statutes
involve the same balancing process by the trial court, in which the trial court
has the "task of weighing the government's claim of privilege against the
defendant's constitutional right to present a defense," taking into
account " 'the
consequences to the public of disclosure and the consequences to the litigant
of nondisclosure.' " (People
v. Jackson (2003) 110 Cal.App.4th 280, 290-291 (Jackson).)
Section 1054.7 states that the
trial court must conduct an in camera proceeding to consider whether the
prosecution has made a showing of good cause to deny or regulate disclosure of
confidential information, and provides that if the trial court grants relief
"the entire record of the showing shall be sealed." (§ 1054.7; see also Evid. Code,
§ 915, subd. (b) [providing for in-chambers hearing to determine
privilege claimed under Evid. Code, § 1040].)
These statutory provisions were
applied in this case, when, on several occasions, the trial court considered
whether the prosecution had shown good cause to redact or withhold certain
items of evidence. According to the
statutory procedures, the trial court sealed the record of those
proceedings. Ali and the People agree
that we should conduct a review of the sealed records to determine whether the
trial court abused its discretion. (See
trial court abused its discretion in ruling that the prosecution could withhold
certain confidential discovery].)
name="_ftnref3" title="">[3]
We have reviewed the sealed
transcripts contained in the appellate record and have determined, based on the
testimony reported therein, that the trial court did not abuse its discretion
in finding good cause for the prosecution to withhold discovery of certain
confidential information. The evidence
supports a finding that release of the confidential information would
compromise ongoing law enforcement investigations, and that it did not contain
any material that was favorable to the defense. (See
Brady v. Maryland (1963) 373 U.S. 83 (Brady).)
3.
Committed Discovery Violations Amounting to a Deprivation of Constitutional
Rights
Ali's final discovery-related
argument is that the prosecution engaged in certain discovery violations and
thereby infringed his constitutional rights.
We first review the legal standards
applicable to Ali's claim that his constitutional rights were infringed when
the prosecution failed to provide discovery.
"Under the federal Constitution's due process clause, as
interpreted by the high court in Brady v. Maryland, supra, 373 U.S. [at
page 87]), the prosecution has a duty to disclose to a criminal defendant
evidence that is ' "both
favorable to the defendant and material on either guilt or punishment." ' "
(In re Bacigalupo (2012) 55
Cal.4th 312, 333.) " 'There are three
components of a true Brady violation:
The evidence at issue must be favorable to the accused, either because
it is exculpatory, or because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and prejudice must
have ensued.' [Citation.] Prejudice, in this context, focuses on 'the
materiality of the evidence to the issue of guilt and innocence.' [Citations.]
Materiality, in turn, requires more than a showing that the suppressed
evidence would have been admissible [citation], that the absence of the
suppressed evidence made conviction 'more likely' [citation], or that using the
suppressed evidence to discredit a witness's testimony 'might have changed the
outcome of the trial' [citation]. A
defendant instead 'must show a "reasonable probability of a different
result." ' " (People v. Salazar (2005) 35 Cal.4th
1031, 1043 (Salazar).) Thus,
under Brady, "there is no 'error'
unless there is also 'prejudice.' " (In re
Sassounian (1995) 9 Cal.4th 535, 545, fn. 7.)
Ali contends that the prosecutor
violated the obligation to provide discovery under Brady. But instead of focusing on any specific
items, Ali claims that "[t]here was a pervasive failure to provide
material discovery to the defense . . . ," and he
"was prejudiced at every turn."
In a portion of Ali's argument that is separate from his discussion of
legal principles, Ali reviews the long history of discovery proceedings in this
case.
of developing his appellate argument to explain which items of withheld or
delayed discovery were material and created prejudice.
Because Ali has failed to discuss
any specific discovery violations that he contends warrant reversal, his
appellate briefing is woefully inadequate.
"An appellate court is not required to
examine undeveloped claims, nor to make arguments for
parties" (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106). Our role is to evaluate
" 'legal
764, 793 (Stanley).) Specifically, as applied to Ali's claim that
the prosecutor violated the obligation to provide discovery under
two fatal deficiencies in his legal argument.
First, as we have explained,
" 'favorable to
the accused, either because it is exculpatory, or because it is impeaching.' " (Salazar, supra, 35 Cal.4th at p. 1043.)
Because Ali does not, in the course of his argument, identify any
he premises his Brady argument, he
has not attempted to establish, as required by Brady, that the items of withheld or delayed discovery were
favorable to the accused.
Second, to establish a
prejudice by showing " ' "a reasonable
probability of a different result." ' " (Salazar, supra, 35 Cal.4th at p. 1043.) Ali has not attempted to explain how any
specific discovery violation caused prejudice in this case. Indeed, Ali relies solely on generalized
statements such as that "every item of withheld or delayed discovery impacted
adversely and directly the ability of defense counsel to prepare for the
preliminary hearing and trial, to challenge prosecution witnesses' credibility,
and to raise doubt about the reliability of the prosecution's case," and
that he was "deprived of a reasonable time to analyze the evidence against
him and mount a thorough, well prepared, cohesive defense."
insufficient to demonstrate prejudice" (People v. Verdugo (2010) 50 Cal.4th 263, 281-282), and stand in
sharp contrast to the case that Ali relies on, which discusses
that were relevant to the defense. (
776, 782-786.)
We accordingly conclude that Ali
has failed to establish that his constitutional rights were violated by the prosecutor's
purported discovery violations during the course of this action.
B.
or Absence of Certain Witness Testimony at Trial Does Not Present a Meritorious
Basis for Reversal of the Judgment
We next consider Ali's arguments
for reversal of the judgment arising from the introduction or absence of
certain witness testimony at trial.
1.
Process Were Not Violated by the Admission of Freeman's Preliminary Hearing
Testimony
As we have
explained, Freeman testified at the preliminary hearing, describing Ali's
admission to the two July 22, 2008 shootings.
Freeman died eight days later, making him unavailable at trial. The trial court denied Ali's motions to
exclude Freeman's preliminary hearing testimony and allowed Freeman's testimony
to be read to the jury. Ali contends
that his constitutional rights to due process and to confront witnesses were
violated by the admission at trial of Freeman's preliminary hearing testimony.
The
confrontation clause of the Sixth Amendment guarantees a criminal defendant the
right to cross-examine the witnesses against him. (Crawford v. Washington (2004) 541
U.S. 36, 54 (Crawford).) Under
confrontation requirement exists where the witness is unavailable, has given
testimony at a previous judicial proceeding against the same defendant, and was
subject to cross-examination by that defendant." (People
v. Carter (2005) 36 Cal.4th 1114, 1172.)
The United States Supreme Court has stated that when a witness is not
available at trial, "preliminary hearing testimony is admissible only if
the defendant had an adequate
opportunity to cross-examine" the witness.
(Crawford, at p. 57,
italics added.) For example, in
166, the high court noted that the preliminary hearing testimony of an
unavailable witness was admissible, in part, because "counsel does not
appear to have been significantly limited in any way in the scope or nature of
his cross-examination of the witness . . . at the preliminary
hearing." The high court has
explained, however, that "in all but . . . extraordinary cases,
no inquiry into 'effectiveness' [of cross-examination] is required." (Ohio
v. Roberts (1980) 448 U.S. 56, 73, fn. 12.) As described by the Supreme Court, an
"extraordinary case" would be one in which defense counsel who
conducted the prior cross-examination had already been determined to have
provided ineffective assistance at that hearing. (Ibid.)
In
California, "Evidence Code section 1291 codifies this traditional
exception" to the confrontation clause described in Crawford for an unavailable witness who has been previously
cross-examined. (People v. Friend (2009) 47 Cal.4th 1, 67.) " 'Evidence Code section 1291, subdivision (a)(2)
provides that former testimony is not rendered inadmissible as hearsay if the
declarant is "unavailable as a witness," and "[t]he party
against whom the former testimony is offered was a party to the action or
proceeding in which the testimony was given and had the right and opportunity
to cross-examine the declarant with an interest and motive similar to that
which he has at the hearing." ' " (Friend,
at p. 67.) " 'When the requirements of
Evidence Code section 1291 are met, "admitting former testimony in
evidence does not violate a defendant's right of confrontation under the
federal Constitution." ' " (Ibid.)
Here,
defense counsel extensively cross-examined Freeman at the preliminary hearing,
with the cross-examination consuming 57 pages of the reporter's
transcript. According to our review of
that transcript, the cross-examination was thorough and well-executed. Further, defense counsel had the same
motivation in cross-examining Freeman during the preliminary hearing as would
have been the case at trial, namely to discredit Freeman's claim that Ali had
admitted to the July 22, 2008 shootings.
Defense counsel had an added incentive to perform a thorough cross-examination
at the preliminary hearing because both defense counsel and the prosecutor
acknowledged at the preliminary hearing that Freeman might not be available at
trial, in that he was being threatened even while in protective custody and had
a history of avoiding contact with the authorities who were trying to locate
him.
Ali
contends that defense counsel's cross-examination of Freeman was nevertheless
inadequate to satisfy the confrontation
clause because of the prosecution's failure to provide discovery that could
have been used to cross-examine Freeman at the preliminary hearing. Specifically, Ali points to a statement given
by Marcus House to the defense investigator and counsel in April 2010 — a year
and a half after the preliminary
hearing. According to House, who was in
prison, Freeman had claimed that he committed the July 22, 2008 shooting at the
College Avenue apartments, not Ali.
Ali's
argument is unpersuasive. First, the
discovery that Ali contends the prosecution did not provide prior to Freeman's
preliminary hearing testimony did not yet
exist, and consisted of a witness
statement elicited many months later by the defense,
not by the prosecution. Second, the
availability of new information to impeach a witness after cross-examination concludes does not render the
cross-examination ineffective for the purposes of the confrontation
clause. In People v. Valencia (2008) 43 Cal.4th 268, our Supreme Court
rejected the argument that prior testimony of an unavailable witness was
inadmissible because defense counsel's "cross-examination of [the witness]
would have been different had the impeaching information been known at the time
he testified." (
and this court have concluded that 'when a defendant has had an opportunity to
cross-examine a witness at the time of his or her prior testimony, that
testimony is deemed sufficiently reliable to satisfy the confrontation
requirement [citation], regardless whether subsequent circumstances bring into
question the accuracy or the completeness of the earlier testimony.' " ' "
(Id. at p. 294.) "Admission of the former testimony of an
unavailable witness . . . does not offend the confrontation clauses
of the federal or state Constitutions — not because the opportunity to
cross-examine the witness at the preliminary hearing is considered an exact
substitute for the right of cross-examination at trial [citation], but because
the interests of justice are deemed served by a balancing of the defendant's
right to effective cross-examination against the public's interest in effective
prosecution." (People v. Zapien (1993) 4 Cal.4th 929, 975.)
In sum,
there is no merit to Ali's contention that the trial court improperly admitted
Freeman's preliminary hearing testimony.
2.
Grant Use Immunity to Marcus House or Hunter Porter
Ali sought
to call Marcus House and Hunter Porter as witnesses. However, both men invoked their Fifth
Amendment right not to testify on the basis that their testimony might
incriminate them. The trial court denied
Ali's request that it grant use immunity to House and Porter so that they could
testify without danger of being prosecuted based on their testimony.
court erred.
title="">[9]
Before
analyzing Ali's argument, we provide an overview of House's and Porter's
expected testimony.
Porter was
a Lincoln Park gang member who was serving a 26-year term for attempted murder
and was charged as a defendant in a prosecution for a series of bank
robberies. He participated in an
interview with district attorney investigators in June 2010, during which he
made some statements about Freeman. Most
significantly, according to Porter, Freeman had participated in bank robberies
with him. Porter also stated that on one
occasion Freeman had stolen some of the proceeds of the robberies from other
participants. In seeking immunity for
Porter, defense counsel argued that Porter's statement that Freeman committed
bank robberies would have value in impeaching Freeman's credibility because
Freeman had claimed in his interviews with law enforcement that he did
Park bank robberies. Further, if Freeman
had stolen robbery proceeds from fellow gang members, that fact would suggest
that Freeman was also willing to double-cross Ali by framing him for the July
22, 2008 shootings.
House, who
was also a Lincoln Park gang member, was serving a 20-year prison sentence and
had been charged with several bank robberies along with Porter. House spoke to defense counsel and defense
counsel's investigator in April 2010, telling them that Freeman claimed to have
committed the July 22, 2008 shooting at the College Avenue apartments, together
with someone called "L." House
also claimed to have given Freeman a gun used in the July 22, 2008 shooting.
We next
turn to the legal principles applicable to Ali's contention that the trial
court was required to grant use immunity to House and Porter. No California statute or case authorizes a
trial court to grant immunity to a witness when not requested to do so by the
prosecutor. Indeed, granting immunity to
a witness "is an executive function."
(People v. Williams,
supra, 43 Cal.4th at p. 622.)
"[T]he decision to seek immunity is an integral part of the charging
process, and it is the prosecuting attorneys who are to decide what, if any,
crime is to be charged." (In re
Weber (1974) 11 Cal.3d 703, 720.) In
accordance with this view, our Supreme Court has noted "the Courts of
Appeal of this state have uniformly rejected the notion that a trial court has
the inherent power . . . to confer use immunity upon a witness called
by the defense." (People v.
Hunter (1989) 49 Cal.3d 957, 973 (Hunter).)
"doubtful" the "proposition that the trial court [possesses]
inherent authority to grant immunity." ' " (Samuels,
supra, 36 Cal.4th at
p. 127.) Indeed, it has
"expressed reservations concerning [such] claims." (People v. Williams, supra, 43 Cal.4th at
p. 622.)
As Ali
points out, our Supreme Court has in dicta, on several occasions, acknowledged
case law from the federal Third Circuit Court of Appeals (Government of Virgin Islands
v. Smith (3d Cir. 1980) 615 F.2d 964 (Smith)), which holds that a judicial grant of use immunity could be
required to preserve the defendant's constitutional right to a fair trial and
compulsory process in certain specific circumstances. (Hunter, supra, 49 Cal.3d at p. 974.)
the factors described in Smith and,
in each case, has concluded that if
the factors were a correct statement of the law, they would
619; In re Williams,
supra, 12 Cal.4th at p. 459; People
v. Stewart (2004) 33 Cal.4th 425, 468; Samuels,
supra, 36 Cal.4th at
p. 128.) Our Supreme Court's
discussion of the factors set forth in Smith
was always presented as dicta and was unnecessary to the decision.
We join our
colleagues in the First District in Cooke
and "decline appellant's invitation to declare a doctrine of judicial use
immunity for defense witnesses in criminal cases. . . . [N]o California Court of Appeal or Supreme
Court case has ever granted such immunity to a defense witness, and we will not
do so now. The relief which appellant
here requests should be granted, if at all, by our state's highest court." (Cooke,
supra, 16 Cal.App.4th at p. 1371.) We accordingly reject Ali's contention that
the trial court was required to grant use immunity to House and Porter.
3.
in Excluding Testimony Describing House's and Porter's Statements
Ali also attempted
to introduce House's and Porter's statements by presenting testimony from the
defense investigator or district attorney investigator who took the
statements. The trial court ruled that
House's and Porter's statements were made inadmissible by the hearsay rule.
Hearsay is
generally inadmissible unless an exception applies. (Evid. Code, § 1200.) "The admission of multiple hearsay is
permissible where each hearsay level falls within a hearsay
exception." (People v. Williams
(1997) 16 Cal.4th 153, 199, fn. 3, citing Evid. Code, § 1201.)
Ali argues
that the hearsay exception for declarations against interest applies to House's
and Porter's statements, making them admissible. Under that exception, "[e]vidence of a
statement by a declarant having sufficient knowledge of the subject is not made
inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far
contrary to the declarant's pecuniary or proprietary interest, or so far
subjected him to the risk of civil or criminal liability, or so far tended to
render invalid a claim by him against another, or created such a risk of making
him an object of hatred, ridicule, or social disgrace in the community, that a
reasonable man in his position would not have made the statement unless he
believed it to be true." (Evid.
Code, § 1230, italics added.)
Based on
the statute, the first requirement for the application of the declaration
against interest exception is the unavailability of the declarant. There is no dispute that the unavailability
requirement of Evidence Code section 1230 is met here. House and Porter were both unavailable
because they invoked their Fifth Amendment right not to testify. (Evid. Code, § 240,
subd. (a)(1).) Further, to the
extent that a second level of hearsay involving Freeman's statements is at
issue, Freeman was unavailable because he was dead. (Id.,
§ 240, subd. (a)(3).)
Turning to
the remaining elements of the declaration against interest exception, the issue
in dispute is whether the statements "so far subjected [the speaker] to
the risk of . . . criminal liability . . . that a
reasonable man in his position would not have made the statement unless he
believed it to be true." (Evid.
Code, § 1230.)
Our Supreme
Court has summarized the law applicable to the declaration against penal
interest exception to the hearsay rule.
As it explained, " '[t]he
proponent of such evidence must show "that the declarant is unavailable,
that the declaration was against the declarant's penal interest, and that the
declaration was sufficiently reliable to warrant admission despite its hearsay
character." ' . . . 'The focus of the declaration against
interest exception to the hearsay rule is the basic trustworthiness of the
declaration. . . . In
determining whether a statement is truly against interest within the meaning of
Evidence Code section 1230, and hence is sufficiently trustworthy to be
admissible, the court may take into account not just the words but the
circumstances under which they were uttered, the possible motivation of the
declarant, and the declarant's relationship to the defendant.' . . . '[E]ven when a hearsay statement runs generally
against the declarant's penal interest and redaction has excised exculpatory
portions, the statement may, in light of circumstances, lack sufficient indicia
of trustworthiness to qualify for admission. . . . [I]n this context, assessing trustworthiness
" 'requires the
court to apply to the peculiar facts of the individual case a broad and deep
acquaintance with the ways human beings actually conduct themselves in the
circumstances material under the exception.' " ' " (People v. Geier (2007) 41 Cal.4th
555, 584, citations omitted.)
"Courts applying [Evidence Code] section 1230 to determine the
basic trustworthiness of a proffered declaration are . . . to
'consider all the surrounding circumstances to determine if a reasonable person
in [the declarant's] position would have made the statements if they weren't
true.' " (People v. Duarte (2000) 24 Cal.4th
603, 618 (Duarte).)
"We
review a trial court's decision as to whether a statement is against a
defendant's penal interest for abuse of discretion." (People v. Lawley (2002) 27 Cal.4th
102, 153.)
a. House's
Statements
House's
statements to the defense investigator describing Freeman's admission to the
July 22, 2008 shooting did not subject House to a risk of civil or criminal
liability, as the statements did not implicate House in the shooting. According to the defense investigator, as
House described the situation, he learned about the shooting from Freeman
several weeks after it happened.
Ali argues
that House made a statement against his penal interest because he told the
defense investigator that he had given Freeman the gun that was used in the
shooting. However, as the trial court
reasonably concluded, that statement was not — under the circumstances — so far
against House's penal interest that it rendered House's entire statement to the
defense investigator sufficiently trustworthy to fall within the hearsay
exception. Specifically, House did not
state that he gave Freeman a gun with the knowledge that it would be used to
commit a specific crime, which might subject House to aider and abettor
liability. Further, at the time House
made the statement, he was already serving a 20-year prison sentence and was
charged with bank robberies. The trial
court reasonably concluded that the risk that House might be prosecuted and
punished for any crime possibly committed in supplying a firearm to Freeman
would not have been significant to House in light of the sentence he was
already serving, or faced with serving, for the bank robberies.
In
addition, the trustworthiness of House's statement must be viewed in the entire
context of the gang-related environment in which it was made. House was a member of the Lincoln Park gang
and could be expected to take actions to help other gang members in good
standing. Ali was a fellow gang-member,
giving House a motive to help him by implicating Freeman, who was a
"snitch" against the gang and therefore out of favor. It is reasonable to infer, as did the trial
court, that House's statements about Freeman may have been fabricated for the
benefit of his fellow gang member Ali, and were therefore not trustworthy
enough to qualify for admission as declarations against interest.
v. Frierson (1991) 53 Cal.3d 730, 745 ["The court could reasonably
find [the witness] wanted to aid his friend at little risk to himself, and thus
the statement was insufficiently trustworthy."].)
In sum, the
trial court did not abuse its discretion in excluding evidence of House's
statements to the defense investigator.
b. Porter's
Statements
Porter's
statements consisted of (1) his description of Freeman taking part in bank
robberies, based both on his commission of the robberies with Freeman and
Freeman's claim to have committed another robbery; and (2) his description
of Freeman having taken more than his share of the proceeds from a robbery. The trial court determined that the
declaration against interest exception to the hearsay rule did not apply, and
it therefore excluded evidence of Porter's statements.
The trial
court was within its discretion in excluding Porter's statements. The statements were made as part of a
"free talk" agreement with the district attorney that the statements
would not be used in the
prosecution's case-in-chief in the bank robbery case. Therefore, the adverse penal consequences to
Porter of making the statements were significantly diminished. Further, the statements could be considered
to be insufficiently trustworthy to fall within the declaration against
interest exception because Porter was also a Lincoln Park gang member and, like
House, had a motivation to help his fellow gang member Ali, while placing the
blame on disfavored gang member Freeman.
Further,
even if Porter's statements should have been admitted, their exclusion was not
prejudicial. (See Duarte, supra, 24 Cal.4th
at p. 619 [evaluating whether it is " 'reasonably probable that a result more
favorable to defendant would have been reached' " had evidence been admitted under the
hearsay exception for a declaration against interest].) The value to the defense of Porter's
statement about Freeman's participation in bank robberies was to call into
question Freeman's credibility by showing that he lied to authorities when
denying involvement in the robberies.
However, the same impeaching evidence was admitted during trial through
another defense witness — Tiano Durham — who testified that Freeman committed a
bank robbery with him. Because the
excluded evidence was cumulative of other evidence, its admission would not
have been reasonably probable to change the outcome of the trial. Ali also cannot demonstrate prejudice from
exclusion of Porter's statement that Freeman took more than his share of the
proceeds from a bank robbery. That
evidence was not necessary to establish Freeman's disloyalty to fellow gang
members as it was clear that Freeman had shown disloyalty to the gang by
"snitching" to the police about Ali and the bank robberies.
C. Ali Has Failed to
Establish Instructional Error
We now turn to Ali's argument that
the trial court committed instructional error by refusing two pinpoint
instructions requested by Ali and by instructing with CALCRIM
No. 337. As our Supreme Court has explained, " ' "in appropriate circumstances" a trial court may be
required to give a requested jury instruction that pinpoints a defense theory
of the case. . . .
[Citations.] But a trial court
need not give a pinpoint instruction if it is argumentative [citation], merely
duplicates other instructions [citation], or is not supported by substantial
evidence [citation].' " (People
v. Hartsch (2010) 49 Cal.4th 472, 500 (Hartsch).)
1.
Refusing the Instruction on Third Party Culpability
First,
Ali contends that the trial court violated his right to due process and a jury
trial when it refused to instruct the jury with a requested pinpoint
instruction on third party culpability.
As the
Attorney General acknowledges, there was arguably some evidence of third party
culpability presented at trial.
Accordingly, Ali requested the following pinpoint instruction on third
party culpability: "You have heard
evidence that a person other than the defendant may have committed the offense
with which the defendant is charged. The
defendant is not required to prove the other person's guilt beyond a reasonable
doubt. Defendant is entitled to an acquittal
if the evidence raises a reasonable doubt in your minds as to the defendant's
guilt. Such evidence may by itself raise
a reasonable doubt as to the defendant's guilt.
However, its weight and significance, if any, are matters for your
determination. If after consideration of
this evidence, you have a reasonable doubt that the defendant committed this
offense, you must give the defendant the benefit of the doubt and find
[him][her] not guilty." The trial
court denied the instruction.
On several occasions,
our Supreme Court has considered and rejected arguments that a trial court
prejudicially erred by not giving a requested pinpoint instruction on third
party culpability. (Hartsch, supra, 49
Cal.4th at p. 504; People v. Ledesma (2006) 39 Cal.4th 641,
720-721; People v. Earp (1999) 20 Cal.4th 826, 887 (Earp).) In those cases, as
here, the proposed instruction, would have stressed that the defendant was not
required to prove third party
culpability, and would have informed the jury that the inquiry remained whether
the defendant raised a reasonable doubt as to his own guilt. (Earp,
at p. 887; Hartsch, at
p. 504.) Those cases were resolved
on the basis that if error existed, it was not prejudicial. Third party culpability instructions
"add little to the standard instruction on reasonable doubt." (Hartsch,
at p. 504.) Moreover, "even if
such instructions properly pinpoint the theory of third party liability, their
omission is not prejudicial because the reasonable doubt instructions give
defendants ample opportunity to impress upon the jury that evidence of another
party's liability must be considered in weighing whether the prosecution has
met its burden of proof." (
"It is hardly a difficult concept for the jury to grasp that
acquittal is required if there is reasonable doubt as to whether someone else
committed the charged crimes," especially when, as in this case
"[t]he closing arguments focused the jury's attention on that
point." (Ibid.)
Ali argues that his proposed third party culpability instruction was required because "a
juror's natural inclination would be to decide whether evidence proved a third
party was guilty." Viewing the
entire charge to the jury, however, we find no merit to this argument. The trial court instructed the jury pursuant
to CALCRIM No. 220 that a "defendant in a criminal case is presumed
to be innocent. This presumption
requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove
something, I mean they must prove it beyond a reasonable doubt unless I
specifically tell you otherwise."
The jury could not have understood from the instructions given that Ali
was required to prove that someone
else committed the crimes.
In light of the
fact that the jury was instructed with the standard reasonable doubt
instruction in this case, and that defense counsel stressed the concept of
third party culpability during closing argument, we find the well-established
approach of our Supreme Court to be applicable here. We therefore conclude that any error in not
instructing the jury with Ali's requested third party culpability instruction
was harmless.
2.
With CALCRIM No. 373
In a
related argument, Ali contends that the trial court should not have instructed
with CALCRIM No. 373. He contends
that CALCRIM No. 373, in the context of this case, confused the jury
regarding third party culpability concepts and therefore added to the purported
prejudice created by the absence of Ali's requested pinpoint instruction on
third party culpability.
CALCRIM
No. 373 states, as given: "The
evidence shows that another person may have been involved in the commission of
the crimes charged against the defendant.
There may be many reasons why someone who appears to have been involved
might not be a codefendant in this particular trial. You must not speculate about whether that
other person has been or will be prosecuted.
Your duty is to decide whether the defendant on trial here committed the
crimes charged."
Ali
contends that CALCRIM No. 373 should have not have been given because it
is "intended for cases where the prosecution has not joined all the
alleged perpetrators or accomplices."
This argument fails because that is precisely the case here, namely the
evidence pointed to two shooters for both of the July 22, 2008 shootings. Therefore, instead of serving to
"certainly confuse[] the jury" regarding third party culpability
concepts, as Ali contends, any reasonable juror would have understood that the
instruction referred to the fact that the second shooter was absent from
trial.
Ali also
argues that CALCRIM No. 373 should have been modified by adding language
stating that evidence regarding a coparticipant in the crime could be used to e
establishing the culpability of the
coparticipant.
title="">[14] We reject this argument because the evidence
did not support a finding that only the second shooter, but not Ali, committed
the shootings.
Finally,
Ali contends that CALCRIM No. 373 should not have been given because it
purportedly tells jurors "that another person's culpability was not of any
importance, and instead jurors should focus on only appellant's culpability,
and not speculate about whether another was culpable." We disagree with Ali's characterization of
the instruction. CALCRIM No. 373
addresses the issue of whether the jury should speculate on the absence of a
the defendant guilty even if a different person — instead of the defendant — might have committed the crime.
3.
Give an Instruction on Benefits Provided to Certain Prosecution Witnesses
Ali
contends that the trial court erred by failing to give a requested pinpoint
instruction informing the jury that in assessing the testimony of certain
witnesses, it should consider the benefits that those witnesses received from
the prosecution.
As
necessary factual background, we observe that Ali's request for the jury
instruction related to the testimony of four witnesses. The first witness, Ahmed Omar, was Ali's
neighbor, who described how Ali had given him bullets to keep in his apartment. The jury heard evidence that Omar received
threats and was relocated by the district attorney to a different state,
receiving monthly payments for his living expenses. The second witness was Freeman (presented
through his preliminary hearing testimony), who was relocated by authorities to
Arizona, receiving benefits totaling $2,409 before his death. The final two witnesses were the teenage boy
(James Gomez), who saw Ali at the College Avenue apartments during the
shooting; and his mother (Yvonne Gomez), who testified about what her son had told
her about his identification of Ali.
Evidence was presented at trial that a district attorney investigator
had assisted Yvonne Gomez by checking on the status of a police investigation
concerning another of her sons.
The CALCRIM
instructions do not contain a specific instruction addressing how the jury
should view witnesses who receive benefits from the prosecution. Ali accordingly requested that the trial
court give an instruction based on a model instruction from the federal Ninth
Circuit Court of Appeals, which stated:
"You have heard testimony that [the witness] has received benefits,
compensation, favored treatment, from the government in connection with this
case. You should examine [the witness's]
testimony with greater caution than that of other witnesses. In evaluating that testimony, you should
consider the extent to which it may have been influenced by the receipt of
benefits from the government." The
trial court declined to give the instruction, explaining (1) that the
substance of the requested instruction was covered by other instructions; and
(2) as to the Gomez family, there was no evidence of any benefit
received.
As we have explained, " 'a trial court need not give a pinpoint
instruction if it is argumentative [citation], merely duplicates other
instructions [citation], or is not supported by substantial evidence
[citation].' " (Hartsch,
here.
First, we
agree with the trial court's conclusion that the evidence did not support a
finding that the Gomezes received any benefit from the prosecution, as the
evidence is that the district attorney investigator merely provided information
about the status of a police investigation but did not influence the investigation
in any way. Therefore, substantial
evidence did not support an instruction with regard to the Gomezes.
Second,
with respect to the requested instruction being duplicative, the jury was
instructed with CALCRIM No. 226, which states: "In evaluating a witnesses testimony,
you may consider anything that reasonably tends to prove or disprove the truth
or accuracy of that testimony. Among the
factors you may consider are: [¶] . . . [¶]
Was the witness's testimony influenced by a factor such as bias or prejudice,
a personal relationship with someone involved in the case, or a personal
interest in how the case is decided."
As the trial court pointed out, this instruction sufficiently instructed
the jury to consider a witness's bias and allowed defense counsel to argue that
the witnesses were biased because of benefits they received from the
prosecution.
Third, the
instruction proposed by defense counsel
was improperly argumentative in that it required
an inference not supported by law.
Specifically, the instruction would have directed the jury that it
specific way, i.e., with greater
caution. However, there is no legal
authority for such a requirement. Ali
points to authority requiring greater caution when considering the testimony of
accomplices or in‑custody informants.
(§§ 1111, 1127a.) However,
no such authority exists for witnesses provided relocation services, just as no
authority exists for an instruction requiring a juror to view the testimony of
an immunized witness with greater caution.
(Hunter, supra, 49
Cal.3d at pp. 977-978.) As our
Supreme Court has explained in that context, "[t]he general rule, of
course, is that the jury decides all questions of fact, including the
credibility of a witness.
. . . A cautionary
instruction, by obligating the jury to view with skepticism the testimony of an
immunized witness, impinges on the jury's otherwise unfettered power to
determine the witness's credibility."
(Vines, supra, 51 Cal.4th at p. 883, citations omitted.) The instruction therefore fails as unduly
argumentative because without legal basis, it " 'invite[d] the jury to draw inferences
favorable to one of the parties from specified items of evidence.' " (People
v. Mincey (1992) 2 Cal.4th 408, 437.)
In sum, we
reject Ali's argument that the trial court erred by refusing to instruct the
jury on benefits received from the prosecution by certain witnesses.
D. Ali's Claims of
Prosecutorial Misconduct Are Without Merit
Ali
contends that the prosecutor committed misconduct during closing argument and
by engaging in the alleged discovery violations that we have discussed above.
Prosecutorial misconduct exists " 'under state law only if
it involves " 'the
use of deceptive or reprehensible methods to attempt to persuade either the
court or the jury.' " ' "
(Earp, supra, 20
Cal.4th at p. 858.) Further, a
defendant's federal due process rights are violated when prosecutor's
misconduct " ' " 'infects the trial with
unfairness,' " ' " making it fundamentally
unfair. (Ibid.) A showing of bad faith on the part of the
prosecutor is not required to establish misconduct. (People v. Hill (1998) 17 Cal.4th 800,
822 (Hill).) However, " '[t]o preserve for appeal
a claim of prosecutorial misconduct, the defense must make a timely objection
at trial and request an admonition. . . .' " (Earp, at p. 858.) As an
exception to this rule, "[a] defendant will be excused from the necessity
of either a timely objection and/or a request for admonition if either would be
futile. [Citations.] In addition, failure to request the jury be
admonished does not forfeit the issue for appeal if ' "an admonition would not have cured
the harm caused by the misconduct." ' " (Hill, at p. 820.)
First, we address Ali's contention
that the prosecutor's alleged discovery violations rose to the level of
prosecutorial misconduct. It is well
settled that "in the absence of prejudice to the fairness of a trial,
prosecutor misconduct will not trigger reversal." (People v. Bolton (1979) 23 Cal.3d
208, 214.) Here, to support his
argument, Ali simply refers back to the argument concerning discovery
violations that we have already addressed above. As we explained in our earlier discussion,
Ali failed to establish the prejudice necessary to show a violation of his
constitutional rights based on purported discovery violations. That failure to establish prejudice is also
fatal to Ali's attempt to obtain reversal based on prosecutorial misconduct
arising from the same purported discovery violations.
Next, we turn to Ali's contention
that the prosecutor committed misconduct during closing argument because
"[t]he lack of direct evidentiary references in the prosecutor's initial
closing argument deprived [Ali] of the ability to make effective argument
relating to the prosecution's position on specific evidence." Ali argues that "it is misconduct for
the prosecutor to structure closing argument in a manner designed to preclude
an effective defense reply. He relies on
People v. Robinson (1995) 31
Cal.App.4th 494 (Robinson), in which
the prosecutor improperly gave a three and one‑half page closing argument
followed by a much longer rebuttal argument of 35 pages, in which many issues
were raised for the first time. (
subdivision (e) permits the prosecutor to open the argument and to close the
argument. It does not permit the
prosecutor to give a perfunctory (three and one-half reporter's transcript
pages) opening argument designed to preclude effective defense reply, and then
give a 'rebuttal' argument — immune from defense reply — 10 times
longer (35 reporter's transcript pages) than his opening
argument."].)
We note initially that Ali has not
preserved this claim of prosecutorial misconduct because he did not object in
the trial court, and an objection would not have been futile. (Hill,
supra, 17 Cal.4th at p. 820;
Indeed, Ali could have asked for the trial court to remedy any
unfairness by allowing defense counsel an additional opportunity for
surrebuttal.
The substance of Ali's argument
fails as well. The prosecutor's closing
argument in this case was nothing like the perfunctory closing argument in
effective defense reply. On the
contrary, the prosecutor's closing argument consumed 38 pages of the reporter's
transcript and — in a detailed manner — covered the evidence
presented at trial that the prosecutor viewed as establishing Ali's guilt. Defense counsel's closing was a similar
length, consuming 47 pages of the reporter's transcript. The prosecutor's rebuttal argument was much
shorter — at 20 pages, and was directed at responding to issues raised during
defense counsel's argument. We
accordingly perceive no misconduct in the way that the prosecutor handled
closing argument.
E.
to Hold a Hearing on Disclosing Juror Information
After
trial, Ali filed a petition for release of the jurors' personal identifying
information so that he could develop a motion for a new trial. The trial court ruled that Ali had failed to
establish good cause to hold a hearing to determine whether the juror
information should be released. Ali
contends that the trial court erred.
As applicable here, the law
provides that after the recordation of a jury's verdict in a criminal jury
proceeding, the court's record is sealed, with all personal juror identifying
information of trial jurors removed from the court record. (Code Civ. Proc., § 237, subds. (a)(2)-(3).) Under Code of Civil Procedure section 206,
subdivision (g), "a defendant or defendant's counsel may . . .
petition the court for access to personal juror identifying information within
the court's records necessary for the defendant to communicate with jurors for
the purpose of developing a motion for new trial or any other lawful
purpose."
Code of Civil Procedure section
237, subdivision (b) sets forth the standard by which a petition for release of
juror information is evaluated. "The
petition shall be supported by a declaration that includes facts sufficient to
establish good cause for the release of the juror's personal identifying
information. The court shall set the
matter for hearing if the petition and supporting declaration establish a prima facie showing of good
cause for the release of the personal juror identifying information, but
shall not set the matter for hearing if there is a showing on the record of
facts that establish a compelling interest against disclosure. A compelling interest includes, but is not
limited to, protecting jurors from threats or danger of physical
harm." (Code Civ. Proc.,
§ 237, subd. (b).) The statute
further provides that "[i]f the court does not set the matter for hearing,
the court shall by minute order set forth the reasons and make express findings
either of a lac
| Description | A jury found Ahmed Ali guilty of one count of murder (Pen. Code, § 187, subd. (a))[1]; four counts of attempted murder (§§ 187, subd. (a), 664); two counts of shooting at an inhabited structure or vehicle (§ 246); one count of being a convicted felon in possession of a firearm (former § 12021, subd. (a)(1)); and one count of unlawfully possessing a firearm (former § 12316, subd. (b)(1)). The jury further made true findings on firearm and criminal street gang enhancements (§§ 12022.53, subds. (c), (d), (e)(1), 186.22, subd. (b)(1)). The trial court sentenced Ali to an indeterminate prison term of 135 years to life, plus a determinate term of 60 years. |
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