P. v. Courtney

Filed 1/21/09 P. v. Courtney CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Michelle R. Rosenblatt and David S. Milton, Judges. Affirmed, as modified, in part; reversed in part and remanded for resentencing.

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

Frank Di Sabatino for Defendant and Appellant Taylor.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Margaret E. Maxwell and Marc A. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellants Dion Allen Courtney & Sean Michael Taylor appeal from judgments entered following a jury trial in which they were convicted of first degree murder; willful, deliberate, and premeditated attempted murder; and possession of a firearm by a felon, with gang and firearm-use findings. Appellants raise numerous contentions, including sufficiency of the evidence and evidentiary and sentencing errors. We affirm appellants convictions, but modify Courtneys sentence and remand for resentencing Taylor on the firearm possession conviction.

FACTS

In the early morning hours of August 15, 2005,^[1]Nick Nowell was fatally shot in the head as he stopped his Jaguar at the intersection of Raymond and Penn in Pasadena. Nowell was not a gang member, but he had been driving two Squiggly Lane gang members: Daniel McGuire was in Nowells backseat at the time of the shooting, and Broderick Allen had just gotten out of the car at his house, which was less than a block from the site of the shooting.^[2] As Allen got out of Nowells car, a white Tahoe drove slowly past them, going south on Raymond. Allen thought the Tahoe looked just like one that belonged to Shawntia Blaylock. McGuire saw the shape of two heads -- one with braids and the other an Afro -- in the front seat of the Tahoe. McGuire told Detective Keith Gomez he saw appellant Taylor and Harold Blaylock (Shawntias brother) in the Tahoe, but he refused to mark a photographic array and in his trial testimony denied making such an identification.^[3] Allen and McGuire urged Nowell to get going. Nowell made a U-turn and drove south on Raymond. He stopped at the intersection of Penn and Raymond. As McGuire bent over to pick marijuana off the car floor, he heard Nowell say, Oh, shit. McGuire looked up and saw the same white Tahoe, followed immediately by flashes of gunfire from the drivers side of Nowells car. McGuire dropped to the floor of the car, which struck a light pole.

McGuire started to get out of the car, but saw the Tahoe returning. The Tahoe passed by two or three times while McGuire hid in the car. When the Tahoe finally sped away, McGuire saw that Nowell was dead, got out of the car, and ran toward Allens house.

Nicholas McGee and Amit Mohan testified they were living at a rehabilitation center on Penn between Fair Oaks and Raymond at the time of the charged offenses. At about 1:40 a.m. on August 15, they were in or near the office when they heard gunshots outside. Mohan heard a crash immediately after the gunshots. They ran outside to see what happened. McGee and Mohan testified they saw a white Tahoe or other SUV with tinted windows driving west on Penn. It turned to head east on Penn, drove slowly near the crashed Jaguar, made a left turn to go north on Raymond, and accelerated away. Mohan saw an African-American man get out of the rear passenger side of the crashed Jaguar and run up Raymond. When Detective Gomez showed Mohan photographs of Shawntia Blaylocks Tahoe (Peoples Ex. 2), Mohan recognized it as the same one he saw on Penn on August 15. McGee testified the SUV in the photograph just looked like the same kind of vehicle, not necessarily the same one. Detective Gomez testified McGee positively identified Shawntia Blaylocks Tahoe as the vehicle he saw on Penn Street at the time of the charged offenses.

The police recovered eight .45 caliber casings on or near the grounds of a church at the northeast corner of Penn and Raymond. They also found a deformed bullet and a fragment of copper jacketing from a bullet. Al eight casings were fired from the same gun. The deformed bullet, jacket fragment, and a bullet fragment removed from the right door of Nowells Jaguar were all fired from a second gun.

McGuire knew Harold Blaylock, Oscar Big O Aldridge, and both of the appellants, and knew they were all members of the Project Gangsters gang. At the time, the Squiggly Lanes gang did not get along with the Project Gangsters gang or its ally, the Pasadena Denver Lanes gang. Two days before the shooting, Allen and McGuire attended a party. McGuire had some words with Aldridge, but they walked away from one another. Later, as McGuire and Allen were leaving, McGuire tried to work things out with Aldridge. As they were talking, Courtney drove up in a red or burgundy Caprice with Harold Blaylock as a passenger. They got out and walked quickly toward McGuire, who pulled out a gun and held it at his side. Courtney and Blaylock stopped. No one said anything, and McGuire and Allen left.

Artesha Daniels phoned Detective Gomez anonymously and unexpectedly a few weeks after the charged crimes. Gomez recorded their conversation. They had several subsequent face-to-face interviews. The recordings of three interviews were played at trial after Daniels variously testified that she did not make her prior statements to Detective Gomez, did not remember making them, or told Gomez lies designed to obtain help with her own legal difficulties.

Daniels told Detective Gomez she was on Hammond Street in Pasadena with her boyfriend, Donald Mackson, at about 1:20 a.m. on August 15 when appellants approached in Shawntia Blaylocks white Tahoe. Taylor was driving, Courtney was in the front passenger seat, and Harold Blaylock was in the backseat. Courtney was angry and said McGuire and the Squigglies had shot up his Caprice and tried to take [his] head off. Courtney asked Daniels to arrange to replace the windows for him. Taylor asked if Daniels and Mackson knew where to find the black Corolla. A few minutes after appellants and Blaylock drove away in the white Tahoe, Daniels heard shots. Taylor returned alone to Hammond Street, driving a Civic. He had two large handguns, said he needed to leave, and wanted Mackson to go with him.

Daniels told Detective Gomez she and Mackson met appellants at a Chevron station later on August 15. Courtney spoke again about McGuire shooting at Courtneys car. Courtney also told them about the trouble between Aldridge and McGuire at the party on August 13 and a responsive shooting of a Squiggly gang member named David by the Project Gangsters gang before McGuire shot at Courtneys car. Courtney said they watched Allens house from the driveway of a house a few doors away and saw Nowells red Jaguar pull up with McGuire and Allen in it. They chased Nowells car, which sped up, then Courtney shot at it from inside their vehicle. Courtney said he got out and fired shots into Nowells car after it crashed. Courtney also mentioned that McGuire ran from Nowells car. During the conversation at the gas station, Courtney did most of the talking, but Taylor also put in ... little comments.

Daniels told Detective Gomez appellants had three guns with them at the gas station. One gun was a revolver and the other two had magazines. Appellants gave the guns to Daniels and Mackson, and they took them to Courtneys fathers house in El Monte, where Courtneys car was parked. Daniels saw Courtneys car before the window repair. The windshield and back window were completely gone and there were bullet holes in the drivers door. Daniels and Mackson gave the guns to a woman at the house and Daniels paid the window repair man with a bad check.

Daniels told Detective Gomez that Courtney called and chirped Mackson repeatedly while the window repairs were underway.^[4] Courtney said he and Harold Blaylock were about to drive to Atlanta. At a later date, Mackson and Taylor attempted to drive Courtneys car to Atlanta, but it broke down before they got out of California. A few days later she heard a chirp conversation between Courtney and Taylor in which one of them said the car must be moved because it was evidence.

Daniels told Detective Gomez that Mackson came to her house in April 2006 and followed her as she walked to a store. He cornered her and pressured her into talking to Taylor on a mobile phone. Taylor referred to Daniels receiving a subpoena and going to court. He asked her if he was going to get washed up and threatened that she would pay if he did. Taylor and his wife yelled and cursed at Daniels over the phone. Mackson pressured Daniels to say Taylor was with Daniels and Mackson on the night of the crimes.

Daniels testified she had been convicted of seven or eight felonies and was in jail at the time of trial. She was known in the neighborhood for scamming and writing bad checks for the benefit of herself and others.

Daniels admitted seeing Taylor several times on the night of August 14, but denied Taylor arrived on Hammond Street with Courtney or Harold Blaylock, that Taylor ever arrived in a white Tahoe, that Courtney asked her to fix his car, that Courtney asked about finding the black Corolla then said lets go commit this murk before driving away with Taylor in the white Tahoe, that she heard gunshots, that Taylor returned to Hammond Street in a different car after the shooting and showed them two guns, that she and Mackson met appellants at a gas station, that appellants told them about the murder at the gas station, that appellants gave them guns to transport, that anyone went to Atlanta or spoke of going there, and that Taylor threatened her. Following an admission on cross-examination, she testified Taylor arrived on Hammond Street in the Tahoe on the night of August 14, but he got out of the Tahoe after saying he wanted to go back to his car. Daniels admitted giving a bad check to pay for a car repair but insisted it was not Courtneys car. By the time she arrived, the damage was already repaired. When she told Detective Gomez that Taylor threatened her, she was fighting with Mackson and was angry at both him and Taylor. Daniels admitted the brakes literally fell off her car as she drove home after testifying at the preliminary hearing.

Daniels explained she wove a story together and called Detective Gomez because she wanted him to help her with her outstanding warrants. She claimed she heard rumors about the shooting and learned details from Nowells family. She said she would have told Gomez anything to avoid going to jail and having her baby taken from her. Detective Gomez told her what to say, and she said it. She added that her children were taken away from her by police in relation to another homicide case, so she would lie about possessing guns, being an accessory to murder, and selling drugs to avoid going to jail on her theft case.

Daniels said she feared Detective Gomez and testifying because Gomez had written a bad report to my judge and she was going to prison. She had heard a lot about Detective Gomez before she called him. She said Detective Gomez removed her from the witness protection program because her testimony at the preliminary hearing was not what Detective Gomez was paying her to say. She admitted she was afraid to give Detective Gomez her name when she called him on the phone the first time because she thought her name might get out and hit the streets of her neighborhood. She further admitted that her testimony made her a snitch, which was a bad thing but would have no repercussions.

Over the course of two interviews, Donald Mackson told Detective Gomez that he and Daniels were hanging out on Hammond Street sometime after midnight when appellants and Harold Blaylock drove up in a white Tahoe with tinted windows. Courtney wanted to get the windows in his car repaired because McGuire and others in a black Corolla shot them out earlier that night. Courtney seemed upset. Taylor returned alone a little later. They were all standing together talking and smoking in the street when the police cars and fire engines went past. At some point, Taylor showed Mackson that he had .22 and .25 caliber guns in his pockets. Taylor wanted Mackson to go with him to Highland Park, but Mackson refused. Mackson admitted he and Daniels went to Courtneys house one or two days after the shooting to have the windows on Courtneys car fixed, but he denied there was a meeting at a gas station, that he delivered guns to Courtneys house, and that Courtney told him about any murder or plans to go to Atlanta. Mackson admitted he and Taylor attempted to drive to Atlanta in Courtneys car. Courtney had Taylors truck in Atlanta, and they were going to switch the vehicles.

Mackson testified Taylor and Courtney were his good friends and he and Taylor were both members of the Project Gangsters gang. On August 14, Mackson and Daniels had just returned from Las Vegas and were hanging out on Hammond Street. Mackson chirped Taylor to see what was happening and to tell Taylor where they were. Taylor came by their location several times, sometimes alone. At one point he arrived in a truck with Courtney and Harold Blaylock. Taylor was seated on the passengers side. Taylor asked about fixing Courtneys car windows, so Mackson called Daniels over to talk to Taylor. Mackson walked away. Courtney told Mackson to beware of a black Corolla. Five or six minutes later, Taylor returned alone in a blue Honda and they smoked some marijuana. Taylor had some lighters that looked like tiny guns, but he did not show Mackson any real guns. While they were smoking, they saw a lot of police cars and fire trucks drive by, and everyone left.

Mackson claimed he did not remember anything else and said he lied to Detective Gomez in their interviews. Gomez told Mackson what happened. Gomez repeatedly threatened to send Mackson away to jail for the rest of his life. Mackson still felt threatened at trial. On re-direct examination, however, Mackson admitted that in the second interview, Gomez said, I didnt threaten you? and Mackson replied, No, never. Never. Mackson denied meeting appellants at a gas station on August 15, receiving guns, and hearing them talk about shooting Nowell or leaving the state, but he admitted going with Daniels to El Monte to have a window fixed. He also admitted taking a long trip with Taylor, but they were not going to Atlanta. In fact, the car broke down about 90 minutes from Pasadena. Mackson denied that Taylor threatened Daniels over the phone when Mackson went to Danielss home.

Detective Gomez testified that at the start of the first interview, Mackson was making fun of Gomez chewing tobacco. Mackson did not appear to be afraid of Gomez. At the end of the first interview, however, Mackson was very upset and appeared to be on the verge of tears. He said he was afraid of being labeled a snitch and being harmed by gang members.

Michael Money Mike Thomas phoned Detective Gomez the day of the murder. Thomas was a Pasadena Denver Lanes gang member and was close to both appellants. A few days later, Thomas phoned Taylor with Gomez secretly listening to and recording the call. The recording was played at trial and Gomez interpreted the slang for the jury. Thomas told Taylor that Harold Blaylock was telling people that Taylor was involved in Nowells murder. Gomez explained to the jury that Thomas was very close to Nowell and viewed him as a little brother. Thomas told Taylor he understood that McGuire pulled out a gun at a gang party and placed Nowell in jeopardy. Thomas said he wanted Taylor to know he was not angry at Taylor and was not out for revenge. Taylor asked Thomas, but you knew, you knew who my beef -- you know who I was into it with, right? Taylor later reiterated that Nowell had nothing to do with the beef Taylor had with McGuire.

San Luis Auto Glass Company sent an employee to 11919 McGirk Street in El Monte on August 15 to replace three windows in a Caprice. The employee found bullets inside the car door panels and concluded the window had been shot out. A young African-American woman paid for the repairs with a bad check.

On August 31, the police searched Courtneys home at 11919 McGirk Avenue in El Monte and seized two loaded handguns: a .22 caliber revolver and a 9 millimeter semi-automatic.

Records for Courtneys mobile phone revealed that immediately after the murder he drove to South Los Angeles, then across the country to Atlanta. Courtney was eventually arrested in Atlanta.

Shawntia Blaylock testified Harold was her brother and Taylors brother was the father of her children. Taylor was like family to her, and Courtney was a friend. She lived on Summit, one street east and about two blocks north of the site of Nowells murder. She allowed other members of her family to drive her Tahoe, but Harold did not know how to drive at the time of the crimes. Harold and the Tahoe were at her apartment when she went to bed on the night of August 14, and both were still there when she awoke the next morning. The keys were in her purse, which did not appear to have been disturbed overnight.

Police surreptitiously monitored Taylors visits in jail. On March 18, 2006, Taylor told Tiffiny White and Alexis Jackson that he would need to use a pen and paper when Shawntia Blaylock visited him because there were certain things he could not discuss over the visitation telephone. He also said he wanted to ask Shawntia if her brother Harold was the person who was snitching on him. He said the snitch might be Money Mike.

On March 25, 2006, Taylor told White he had seen Allen in the jail and remembered that Allen lived on Raymond Street. He described Allen, told White where Allen lived, and described Allens house and the type of car usually parked in the driveway there.

On March 31, 2006, Taylor asked his visitors if they knew Money Mike and said, Tell him, fuck him. Hes a snitch. On April 13, 2006, Taylor asked Tanchell Anderson whether Daniels was telling the police about him. Anderson said Daniels was. Taylor said, That bitch put me in jail. On April 16, 2006, Taylor told White that his investigator confirmed that Daniels was working with the police, then said, I believe in Karma. What goes around comes around. On April 20, 2006, appellant Taylor told Torrie Taylor that Mackson was not cooperating with the police and would testify for Taylor. Appellant Taylor also expressed his dislike of Daniels.

On May 19, 2006, Taylor told White to go to a particular gas station, purchase cigarette lighters shaped like tiny handguns, and bring the lighters and receipt to court. On June 3, 2006, Taylor repeatedly asked White, Dont you remember you were with me that night?

Courtney, Taylor, Harold Blaylock, Oscar Aldridge, and Donald Mackson were all active members of the Project Gangsters gang at the time of the charged offenses. Michael Thomas was an active member of the Pasadena Denver Lanes gang, which was closely allied to the Project Gangsters gang. The Squiggly Lane gang and Project Gangsters gang were violent rivals at the time of the charged offenses. Pulling a gun on members of a rival gang during a party would be considered very disrespectful, essentially a challenge requiring a response with greater violence to avoid showing weakness. Shooting at a rivals car would also show disrespect and would require retaliation with a higher degree of violence. Witnesses in gang-related cases often recant because they fear the gang will kill them or their family in retaliation. In gang terminology, a snitch is someone who provides accurate information to the police.

Appellants were tried together, with a single jury. The jury convicted each appellant of first degree murder, attempted murder, and possession of a firearm by a felon. With respect to each appellant, the jury found the attempted murder was willful, deliberate, and premeditated, and the murder and attempted murder were committed for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members (Pen. Code, 186.22, subd. (b)(1)).^[5] The jury further found, with respect to each appellant, that, in the commission of the murder and attempted murder, Courtney personally and intentionally fired a gun, causing death and great bodily injury; personally and intentionally fired a gun; and personally used a gun. ( 12022.53, subds. (b), (c), and (d).) It found, with respect to each appellant, that, in the commission of the murder and attempted murder, a principal personally and intentionally fired a gun, causing death and great bodily injury; personally and intentionally fired a gun; and personally used a gun. ( 12022.53, subds. (b), (c), (d), and (e)(1).)

Each appellant waived a jury trial on prior conviction and prior prison sentence allegations. The court found Taylor had served four prior prison terms within the scope of section 667.5, subdivision (b). Courtney admitted one prior serious or violent felony conviction within the scope of the Three Strikes Law and one prior serious felony conviction within the scope of section 667, subdivision (a)(1), and he also admitted that he served two prior prison terms within the scope of section 667.5, subdivision (b).

The trial court sentenced Courtney to 107 years 8 months to life in prison. For murder (count 1), the court imposed a term of 25 years to life, plus 25 years to life for the firearm enhancement ( 12022.53, subds. (d)), plus 10 years for the gang enhancement, plus 5 years for the section 667, subdivision (a)(1) enhancement, plus 2 years for prior prison term enhancements ( 667.5, subd. (b)), for a total of 67 years to life. For attempted murder (count 2), the court imposed a term of 15 years to life, plus 25 years to life for the firearm enhancement ( 12022.53, subd. (d)), for a total of 40 years to life. For possession of a firearm by a felon (count 3), the court sentenced Courtney to 8 months.

The trial court sentenced Taylor to 84 years 8 months to life. For murder (count 1), the court imposed a term of 25 years to life, plus 25 years to life for the firearm enhancement ( 12022.53, subds. (d), (e)(1), 186.22, subd. (b)(5)), plus 2 years for prior prison term enhancements ( 667.5, subd. (b)), for a total of 52 years to life. For attempted murder (count 2), the court imposed a term of 7 years to life, plus 25 years to life for the firearm enhancement ( 12022.53, subds. (d), (e)(1), 186.22, subd. (b)(5)), for a total of 32 years to life. For possession of a firearm by a felon (count 4), the court sentenced Taylor to 8 months.

DISCUSSION

I. Evidentiary issues

Appellants^[6]assert numerous claims stemming from the admission or exclusion of evidence. As a general proposition, we review the trial courts rulings on the admissibility of evidence for abuse of discretion. (Peoplev.Guerra (2006) 37 Cal.4th 1067, 1113.)

A. Admission of unedited tape of Allens statement to police

Courtney objected to playing the entire, unedited recording of Broderick Allens statement to Detective Gomez. Courtneys attorney told the court he would just  provide the court with a few excerpts of the type of thing which I think is absolutely inadmissible. The court agreed. Counsel specifically objected that there are a number of statements in here which are hearsay, talk about what other people have told him what -- what people are saying on the street. The court asked counsel to indicate what he was specifically referring to. Counsel pointed out several instances but not the one in controversy. Counsel repeatedly made a blanket hearsay objection to the entire interview, and the court repeatedly responded by asking counsel to point out the particular statements he found objectionable. Counsel never mentioned the statements in issue on appeal. After a recess, counsel attempted to point out other portions to which he objected, but the court ruled the effort untimely and permitted the prosecutor to play the unedited tape.

The tape, as played for the jury, included an exchange in which Detective Gomez asked Allen whether he had seen Courtney or Harold Blaylock around. Allen replied, I aint seen neither one of them. The next day, the story was that they did it and everybodys saying they went out of town. Both of them is gone, violated parole or whatever, and just gone. Which, basically, indicates them, because if you didnt do nothing, what you running for?

Soon after the statements in the preceding paragraph played, the court ordered the prosecutor to stop the tape. The court stated, Ladies and gentlemen, I want to bring you back to page 18 at the top. Theres an answer. It says I aint seen neither one of them. The next day -- this is the courts concern the next day the story was that they did it and everybodys saying they went out of town. Both of them is gone, violated parole or whatever, and just gone. Which basically indicates them because if you didnt do nothing, what you running for? [] That is what we call hearsay. Its inadmissible. We cannot redact out everything and still have a conversation thats comprehensible so you fully understand the interview between Detective Gomez and this witness. Im telling you you cannot use this to convict or as evidence against the defendants. Its just hearsay. [] Everybody says they -- well, you cant use that. Does everyone understand that? And youre instructed to disregard that, in its entirety.

After the recording finished, outside the presence of the jury, the court chastised the prosecutor for failing to edit the statement to exclude the statements in issue on appeal. While noting it overruled Courtneys hearsay objection, the court stated counsel should have brought the statements in issue to the courts attention. Although the court characterized the statements as prejudicial, it concluded the prejudicial effect was insufficient to grant a mistrial.

1. Courts refusal to find and exclude inadmissible hearsay from the tape

Appellants contend the courts refusal to review the transcript of Allens statement to find the inadmissible hearsay constituted a failure to exercise its discretion and resulted in a violation of their due process and confrontation rights.

As a preliminary matter, we note Taylor cannot assert any appellate claim regarding this evidence because he did not object in the trial court. As a general rule, failure to join in the objection or motion of a codefendant forfeits the issue for appeal. (People v. Wilson (2008) 44 Cal.4th 758, 792-793 (Wilson).) Moreover, he has not demonstrated how he might have been prejudiced by the statement, which did not refer to or incriminate him.

Courtneys hearsay objection to unspecified portions of Allens statement was insufficient. The trial court has no sua sponte duty to exclude evidence. (Peoplev.Montiel (1993) 5 Cal.4th 877, 918 (Montiel); Evid. Code, 353.) Courtney would impose upon the court a duty to search through a lengthy transcript or recording for inadmissible statements on the basis of an objection that the transcript or recording includes some inadmissible hearsay statements. This is not the law. The burden is upon the party seeking to exclude evidence to object, specifically stating the grounds of the objection, and directing the objection to the particular evidence that the party seeks to exclude. (Platzer v. Mammoth Mountain Ski Area (2002) 104 Cal.App.4th 1253, 1260, citation omitted.) What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling. (People v. Partida (2005) 37 Cal.4th 428, 435.) Courtneys objection did not permit the court to make an informed ruling. Taylor did not object at all. Accordingly, appellants forfeited their evidentiary, due process, and confrontation claims regarding Allens statements.

2. Ineffective assistance of counsel

Courtney also contends his attorneys failure to specifically object to the statements in issue on appeal deprived him of the effective assistance of counsel.

A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsels errors, appellant would have obtained a more favorable result. (Peoplev.Ledesma (1987) 43 Cal.3d 171, 216-218.)

Courtney must overcome presumptions that his attorney was effective and that the challenged action might be considered sound trial strategy. (In re Jones (1996) 13 Cal.4th 552, 561.) Counsel is given wide latitude and discretion in the area of tactics and strategy, but the exercise of that discretion must be founded upon reasonable investigation and preparation, and it must be reasonable and informed in light of the facts and options reasonably apparent to counsel at the time of trial. (Id. at pp. 561, 564-565.)

Assuming, without deciding, that Courtneys counsel erred by failing to pinpoint the statements in issue on appeal and specifically object to them as hearsay and that the failure to do so was not a tactical decision, Courtneys claim nonetheless fails because he has not demonstrated prejudice.

The trial court admonished the jury not to consider the statement in issue for any purpose. We presume the jury followed this instruction and disregarded the stricken statement. (Peoplev.Horton (1995) 11 Cal.4th 1068, 1121.)

Even if jurors did not follow the courts instruction, the failure to properly object to the statement did not prejudice Courtney. Allens statement related three points: (1) Courtney and Blaylock did it, (2) Courtney and Blaylock left town, which reflected a consciousness of guilt, and (3) Courtney and/or Blaylock violated their parole by leaving town. Other evidence apart from Allens objectionable statement established the first two points. Danielss statements to Detective Gomez related Courtneys admission to Daniels and Mackson that he repeatedly shot into Nowells car in retaliation for McGuires earlier behavior at the party and in shooting at Courtneys car. Thus, the jury heard from other sources that Courtney did it.

As to the second point, ample other evidence proved Courtney fled to Atlanta immediately after the charged offenses. This included Courtneys mobile phone records, Danielss and Macksons statements to Detective Gomez relating Courtneys statement that he and Blaylock were leaving for Atlanta, Macksons statement that Courtney was in Atlanta with Taylors truck, and Detective Gomezs testimony that Courtney was arrested in Atlanta. The jury was instructed that flight reflected consciousness of guilt. (CALJIC No. 2.52)

Although no evidence was introduced that Courtney was on parole at the time of the charged offenses, the jury received Courtneys stipulation that he had been convicted of a felony. From the jurys perspective, hearing that Courtney may have been on parole was not reasonably likely to have been more prejudicial than learning that he had a prior felony conviction. Given the very strong case against Courtney, including evidence of the rivalry between the Project Gangsters and Squiggly Lane gangs, the dispute arising from the confrontation at the party two days before the shooting, Courtneys statements to Daniels and Mackson before and after the murder about McGuire shooting at his car, his desire to retaliate, and the shooting itself, McGuires statement to Detective Gomez identifying Courtney in the Tahoe as it passed Nowells car a few moments before the shooting, Courtneys transfer of guns to Mackson and Daniels, evidence of the window repair showing that Courtneys car had been struck by bullets, and Courtneys immediate departure for Atlanta, it is not reasonably probable Courtney would have obtained a more favorable result if the jury had not heard Allens statement about a parole violation.

3. Prosecutorial misconduct

Courtney contends the prosecutor committed prejudicial misconduct by knowingly introducing the tape without removing the inadmissible hearsay statements in issue on appeal.

A prosecutors misconduct violates due process if it infects a trial with unfairness. (People v. Farnam (2002) 28 Cal.4th 107, 167.) Less egregious conduct by a prosecutor may nonetheless constitute misconduct under state law if it involves the use of deceptive or reprehensible methods to attempt to persuade the court or jury. (Ibid.)

Absent a showing that an objection or request for admonition would be futile or the harm could not have been cured, an appellant may not complain of prosecutorial misconduct unless he objected to the alleged misconduct in a timely fashion at trial and requested that the jury be admonished to disregard the impropriety. (Peoplev.Hill (1998) 17 Cal.4th 800, 820.)

Although Courtney raised a generalized hearsay objection to the entire Allen statement, he never raised the issue of prosecutorial misconduct in the trial court. The trial courts strong spontaneous reaction to the playing of the statements in issue on appeal negates any claim that an objection would have been futile. Accordingly, Courtney forfeited his prosecutorial misconduct claim.

In any event, admission of Allens statement did not infect the trial with unfairness. It imparted very little, if any, information the jury did not also receive from other proper sources. Accordingly, if the prosecutor engaged in misconduct, it was at most a violation of state law, and constituted a basis for reversal only if it is reasonably probable that a result more favorable to the defendant would have occurred had the prosecutor not engaged in misconduct. (Peoplev.Ochoa (2001) 26 Cal.4th 398, 442 (Ochoa), disapproved on another ground in People v. Prieto (2003) 30 Cal.4th 226.) As discussed in the context of Courtneys ineffective assistance claim, any error was harmless.

B. Exclusion of evidence regarding Detective Gomezs history, conduct, and police procedures

Appellants contend the exclusion of evidence regarding a prior incident in which Detective Gomez fatally shot a gang member, the police departments procedures regarding photographic identifications and interrogations, statements Gomez made to Shawntia Blaylock, Gomezs failure to investigate Daniels, and Gomezs education in African American history and adolescent psychology violated their due process right to present a defense.

Enforcing the ordinary rules of evidence does not violate a defendants due process rights. (People v. Cunningham (2001) 25 Cal.4th 926, 998 (Cunningham).) A defendant has no constitutional right to present all evidence, without regard to its form or probative value. (Peoplev.Babbitt (1988) 45 Cal.3d 660, 684.) Exclusion of evidence generally does not even rise to the level of constitutional error, much less structural error. (People v. Cudjo (1993) 6 Cal.4th 585, 610-611.)

1. Shooting by Detective Gomez

McGuire denied seeing who was in the Tahoe and denied making any identifications of its occupants. The court asked McGuire if anyone in the courtroom was intimidating him, and he said Detective Gomez intimidated him a little.

On cross-examination, Courtneys counsel asked McGuire if he felt intimidated by Detective Gomez for some reason other than his interactions with Gomez. The prosecutor objected on the ground of relevance. Outside the presence of the jury, the prosecutor explained that Gomez fatally shot a gang member in self-defense. Courtney argued this incident was widely known and Gomez used it to intimidate young men. In a subsequent Evidence Code section 402 hearing, McGuire testified that Gomez intimidated him by trying to catch him and others. He mentioned the murder and said the victim was his auntys cousin. McGuire agreed the prior incident was on his mind, but admitted he did not fear Gomez would be physically violent toward him. He summed up his apprehension of Gomez by saying, Hes just very sneaky.

The court excluded evidence of the prior shooting by Detective Gomez under Evidence Code section 352, stating its prejudicial impact would far outweigh the little probative value that you have. I just listened to the young man. Its basically the fact that Officer Gomez is known to lock you up. Thats basically the bottom line. [] He did mention the fact, of course, the shooting of his relative. But he says basically the bottom line is that Officer Gomez is a different person out in the field. He will lock you up. [] Nevertheless, even considering all the factors, the bottom line is hes saying he wasnt intimidated by him because he didnt make a statement.

Courtney later sought permission to ask Detective Gomez about the prior shooting. The court denied that request, citing undue consumption of time and the risk of confusing the jury.

Neither appellant made an offer of proof that Shawntia Blaylock, Daniels, Mackson, or any other witness knew about the prior shooting by Detective Gomez, or that these witnesses would testify they made false statements because they feared Gomez based on the prior incident. Accordingly, appellants failed to preserve this issue with respect to any witness other than McGuire or Detective Gomez. (People v. Waidla (2000) 22 Cal.4th 690, 718, fn. 4 ; People v. Eid (1994) 31 Cal.App.4th 114, 126.) Moreover, because Taylor did not join in Courtneys effort to admit this evidence in the trial court, he may not assert the issue on appeal. (Wilson, supra, 44 Cal.4th at pp. 792-793.)

Evidence Code section 352 provides that the court may, in its discretion, exclude relevant evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create a substantial danger of undue prejudice, confusion of the issues, or misleading the jury. Evidence Code section 352 must yield to a defendants due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense. (Cunningham, supra, 25 Cal.4th at p. 999.)

The probative value of the prior shooting incident was minimal. As the trial court noted, McGuire did not testify he feared Detective Gomez as a result of the prior shooting, but because Gomez had a reputation for putting people in prison and was sneaky. The defense purpose was adequately served by evidence of the mere fact of intimidation, without explaining an alternative basis for the intimidation that McGuire essentially rejected. Admitting evidence of the prior incident would have required presentation of the circumstances leading up to the shooting, the investigation and consequences of it, and the knowledge of the incident in the community. This would necessarily entail an undue consumption of time in a very lengthy trial and risk confusing the jury. The trial court did not abuse its discretion by concluding these risks substantially outweighed the minimal probative value of the information.

Furthermore, Detective Gomez admitted it was possible that he threatened McGuire with his open case if he recanted his statement to Gomez. Accordingly, exclusion of the minimally relevant evidence regarding the prior incident did not prevent Courtney from presenting his theory that Detective Gomez intimidated McGuire into making a statement and indentifying Courtney and Harold Blaylock.

2. Police procedures

Courtney asked Sergeant Delgado whether he was familiar with the Pasadena Police Departments policy and procedure for compiling a murder book. The court sustained the prosecutors relevance objection. Courtney asked whether the pages in the murder book were numbered, and the court again sustained a relevance objection. Outside the presence of the jury, Courtney explained the Pasadena Police Department did not keep a chronological record of the investigators activities or number the pages, which permitted them to manipulate and construct evidence. The court asked if there was any evidence of such impropriety, and Courtney suggested Detective Gomez may have written on the photographic array that McGuire made identifications, when he had not actually identified anyone. The court rejected this as pure speculation and sustained the objection.

As the trial court correctly noted, Courtneys offer of proof was based entirely upon speculation. Nothing indicates an exploration of the police departments procedures regarding their murder books would have strengthened Courtneys claim that Detective Gomez lied. At best, Courtney may have demonstrated a violation of procedure, but his offer of proof suggested Detective Gomez followed the departments policy and procedures, and Courtney simply hoped to demonstrate the inadequacy of the policy and procedure. Doing so would not have strengthened his speculative claim that the identifications were fabricated and did not prevent him from presenting his defense.

Courtney also asked Sergeant Delgado whether a detective should refrain from contaminating a witness by telling an interviewee the answers to the interview questions. The court sustained the prosecutors objection that the question was speculative and an incomplete hypothetical. Courtney did not attempt to rephrase the question.

This ruling did not violate Courtneys right to present a defense. Courtney should have attempted to rephrase his question. In any event, if Sergeant Delgado had been permitted to answer and had agreed that an interviewing detective should not provide an interview subject with answers, it would have added very little, if anything, to Courtneys defense. The claim that Detective Gomez provided information to witnesses, who then repeated it, was presented through the testimony of Daniels and Mackson. Testimony by Delgado that such a tactic would be improper would not prove the witnesses claim that Gomez actually did this.

Because Taylor did not join in Courtneys effort to present this evidence in the trial court, he may not assert the issues on appeal. (Wilson, supra, 44 Cal.4th at pp. 792-793.)

3. Statements to Shawntia Blaylock

Courtney asked Shawntia Blaylock whether Detective Gomez made any statements to her about the charged crimes. The court sustained the prosecutors relevance objection. Courtney asked if Blaylock walked out of the police station after questioning. Blaylock said she repeatedly asked Gomez whether she was under arrest, and he told her she was not. She then said, I kept asking him if I could leave. And he kept asking that he wanted The court sustained the prosecutors objections on the grounds of relevance, hearsay, and that no question was pending. Courtney asked what happened when Gomez came to her home at a later date, and she replied, I was in the house and I could hear my brother screaming, Tay -- Detective Gomez has a gun on me. And I was still on crutches at the time. I came outside and I asked him, why do he keep coming over here harassing us . The court sustained the prosecutors relevance objection. Courtney asked Blaylock if Gomez said anything to her on that occasion. The court sustained the prosecutors relevance and hearsay objections. Blaylock testified she was frightened of Gomez because of some of the things that he said to me. The court sustained the prosecutors objection. On re-cross examination, Courtney again attempted to ask Blaylock why she was afraid of Gomez, and the court sustained the prosecutors relevance objection.

None of these matters was relevant. No pretrial statements by Blaylock were admitted at trial. Her trial testimony pertained only to her Tahoe. Accordingly, her fear of Detective Gomez, statements Gomez may have made to her, and her annoyance at Gomezs treatment of her brother were irrelevant. Exclusion of evidence on these points did not deprive Courtney of his right or ability to present a defense.

Because Taylor did not join in Courtneys effort to present this evidence in the trial court, he may not assert the issues on appeal. (Wilson, supra, 44 Cal.4th at pp. 792-793.)

4. Investigation of Daniels and use of informers

The trial court sustained the prosecutors relevance objections to each of the following questions Courtney asked Detective Gomez: whether one of the most important responsibilities of a detective was to identify and develop informants to the point where they will regularly contribute information; whether developing informants was an important part of how you develop your knowledge of whats going on in the community; whether the police department required Gomez to document his contacts with informants; whether he documented or kept any records of his contacts with informants; whether informants often received some form of consideration; whether he had ever intervened with a prosecutor to obtain leniency for an informant; whether he ever provided an informant with money from public funds or assistance with housing or food expenses. The court explained Courtney could ask those questions about any witnesses or persons pertaining to this case, but not about general practices or policies.

Exclusion of evidence regarding the police departments policies and Detective Gomezs general practices did not violate Courtneys right to present a defense. Such general information did not tend to detract from the credibility of any prosecution witness.

Detective Gomez testified he investigated Danielss criminal history. The trial court repeatedly sustained the prosecutors relevance objections to Courtneys inquiries regarding the timing of that investigation. Both the jury and Gomez were aware of Danielss numerous felony convictions. The date Gomez became aware of her record had no relevance to Courtneys guilt or defense.

Because Taylor did not join in Courtneys effort to present this evidence, he may not assert the issues on appeal. (Wilson, supra, 44 Cal.4th at pp. 792-793.)

5. Detective Gomezs knowledge of African-American history and adolescent psychology

Courtney examined Detective Gomez extensively regarding his training as a police officer and other educational qualifications. He then asked whether Gomez had taken any classes in African-American history or adolescent psychology. The court sustained the prosecutions relevance objections to each question. Taylor argues these areas of study were relevant to Gomezs qualifications to offer his opinion as to what Money Mike meant during the recorded conversation.

Because Taylor did not join in Courtneys effort to present this evidence in the trial court, he may not assert the issue on appeal. (Wilson, supra, 44 Cal.4th at pp. 792-793.) Moreover, Detective Gomezs interpretation of the slang in the statement was based upon his qualifications as a gang expert. While a course in slang might have been a beneficial qualification for this task, it is highly unlikely that either African-American history or adolescent psychology courses would provide any insight into the meaning of the slang terminology.

C. Promises to witnesses

Appellants also contend the admission of Detective Gomezs testimony regarding making promises to witnesses violated due process. The prosecutor asked Gomez whether, in the first conversation with Daniels, he made preliminary promises in order to get her to reveal her name? Courtney objected that the tape of the conversation spoke for itself. The court overruled the objection, saying he may reveal [an] investigative technique if the jury doesnt understand it. Gomez testified he made no promises, but said things to put her at ease and induce her to state her name.

The admission of relevant evidence results in a due process violation only if it makes the trial fundamentally unfair. (People v. Falsetta (1999) 21 Cal.4th 903, 913.) Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must be of such quality as necessarily prevents a fair trial. (People v. Albarran (2007)149 Cal.App.4th 214, 229 (Albarran), citations omitted.) Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation. We, therefore, have defined the category of infractions that violate fundamental fairness very narrowly. (Dowling v. United States (1990) 493 U.S. 342, 352, 110 S.Ct. 668.)

Because Taylor did not join in Courtneys objection to this evidence in the trial court, he may not assert the issue on appeal. (Wilson, supra, 44 Cal.4th at pp. 792-793.) Courtneys defense relied heavily on the theory Daniels lied to Detective Gomez to obtain assistance with her own legal difficulties and specifically cited Gomezs promises to assist Daniels. Thus, testimony of Gomezs promises to Daniels assisted Courtneys defense. Admission of this evidence did not render the trial fundamentally unfair.

D. Admission of recorded conversation between Taylor and Thomas

Taylor objected to the admission of evidence regarding his conversation with Michael Thomas on the ground it was irrelevant and did not constitute an adoptive admission. Outside the presence of the jury, the prosecutor played the recording, and Detective Gomez testified regarding the meaning of the slang, based upon his experience working with gang members.

In particular, Detective Gomez testified that when Thomas said, Im going to keep it 100 with you bro, he meant he was going to be completely honest. When Thomas said, Its a little, little birdie going around. H.B. saying that um, on the little shit with my little that you was there, he meant he heard Harold Blaylock (H.B.) was saying Taylor was there when Thomass protg (his little) was shot. Thomas then said, But look ... Im just letting you know bro like if you see me in the hood or any of that shit blood, [redaction]. So other little nigga exposed his hands on some gangster shit blood [redaction] you know what Im saying, I would have did the same thing, and blood already, you know what Im saying, blood hollered at me like, like, like ... it wasnt even for my nigga blood. You know what Im saying. And the shit just, you know what Im saying, Im fixin to be in the hood, I don't want mother fuckers, you know what Im saying ... trippin like, you know what I'm saying like Im out there trip and shit. Me and you go way too far back blood. Gomez testified this meant Thomas wanted Taylor to know he was not going to seek revenge. He knew about McGuire showing the gun at the party and understood that Nowell was not the target of the charged offenses. Thomas did not want anyone who saw him in Pasadena to think he was there to retaliate for Nowells death.

Thomas then said, Same thing I was telling bro, I was like man, bro I already know. Like, cause he was like, like, like concerned about me trippin. Im telling blood like bro, Im not trippin ... nigga, cause I heard the story. Big O, Big O told me the whole, the whole scenario shit bro. So you know what Im saying it had me like ... it had me fucked up at first, but when he told me that the other little nigga, the little squirt, bitch-ass nigga did that shit, I was like blood put, blood the one that put blood in violation from the gate. Detective Gomez testified this meant Thomas had been talking to Courtney, who was concerned that Thomas would be upset. Thomas told Courtney that although he was initially upset, he heard the whole story from Oscar Aldridge and knew Nowells death was McGuires fault. Taylor then said, Nick, Nick right? Thomas replied, you know what Im saying. Thats like some, some, some sucker shit blood. Like you know what Im saying, if you playing poker blood, if you got a poker hand blood, unless you got a winning hand, you dont show your winning hand blood. Gomez testified this meant if McGuire was going to show a gun, he should have killed Courtney or Harold Blaylock. Otherwise, he was revealing what he intended to do, and it would come right back on him. Taylor then said, He was, he was your people people? and Thomas replied, That was my Little bro. Real talk man. Gomez testified Taylor was asking whether Nowell was very close to Thomas, and Thomas replied Nowell was his protg. Taylor then said, Homie, I swear to God Mike, I do not know the dude. I didnt .... Thomas replied, I already know you didnt know him, thats what Im saying. Thats why Im saying you know like if Im out there like dont be trippin on me and think Im out there trippin or none of that shit blood, it aint like that .... Taylor then said, Mike me and you go to, we go way to mother fucking far back. Me and you is like my peoples bro. Me and you always ... the utmost. Glad you called me and let me know that, but .... (unintelligible) I cant even see myself trying to be mad or trip with you, but I wouldnt think because you come out there like that, I wouldntthink that.

Later in the conversation, Taylor said, But you knew, you know who my beef, you know who I was into it with, right? Detective Gomez testified Taylor was asking whether Thomas knew who he was actually upset with. Thomas replied that he did. Gomez testified they were referring to either McGuire or Reggie J.R. Thomas, who had robbed Taylor and had been in Nowells car on the night of the charged offenses. After Taylor and Thomas insulted McGuire, Thomas said the only person he got close to was my little, blood that was my little bro. Taylor replied, I really still to this day if they showed me a picture, I really wouldnt know him. Right now I dont know that man. That man aint never had no problem with me. Gomez testified both men were referring to Nowell. Following additional discussion about other people and incidents, Taylor said, Right. Well, back to ol boy. I didnt really know ol boy. I didnt really know ol boy, and little beef with ol boy I mean he didnt have nothing to do with it. Gomez testified Taylor was referring to Nowell and meant that Nowell was not supposed to be killed.

Taylor argued the conversation contained no admissions or adoptive admissions, just speeches by Thomas. The court overruled Taylors objection, saying, they are admissions by your client, that this was this guys friend. Dont give me a beef when I come back to the neighborhood. Im not going to be mad at anyone, and your client indicated Im sorry -- basically, Im sorry, man. He wasnt the target. I didnt know the guy. I didnt have any beef with them [sic]. Thats an admission.

Taylor contends the conversation was unintelligible and contained no admissions and its introduction violated his confrontation rights.

Evidence Code section 1221 provides a hearsay exception for adoptive admissions: Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth. (Evid. Code, 1221.) When a defendant remains silent after a statement allegingthe defendants participation in a crime, under circumstances that fairly afford the defendant an opportunity to hear, understand, and reply, the statement is admissible as an adoptive admission, unless the circumstances support an inference that the defendant was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution. (People v. Jurado  (2006) 38 Cal.4th 72, 116.) The statement need not be a direct accusation, just a statement that would normally call for a response if it were untrue. (People v. Riel  (2000) 22 Cal.4th 1153, 1189.) Evasive or equivocal replies, as well as silence, may constitute adoptive admissions. (Ibid.) To warrant admissibility, it is sufficient that the evidence supports a reasonable inference that an accusatory statement was made und