P. v.
Filed 7/1/13 P. v. Lugo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
LARRY DWAYNE LUGO,
Defendant
and Appellant.
E054781
(Super.Ct.No.
BAF005700)
OPINION
APPEAL
from the Superior Court
of
County. Michele D.
Levine, Judge. Affirmed.
Thomas
K. Eckhardt for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Andrew
Mestman, Deputy Attorneys General, for Plaintiff and Respondent.
A
jury convicted defendant and appellant Larry D. Lugo of four counts of
premeditated attempted murder (Counts
3-6—Pen. Code, §§ 664, 187, subd. (a)), four counts of attempted murder (Counts
10-13—Pen. Code, §§ 664, 187, subd. (a)), and one count of evading law
enforcement with disregard for the safety and property of others (Count 7—Veh.
Code, § 2800.2). The jury additionally
found true, with respect to Counts 3 through 6 and 10 through 13, allegations
defendant personally and intentionally discharged a firearm (Pen. Code,
§ 12022.53, subd. (c)), and knew or reasonably should have known the
victims were peace officers engaged in the performance of their duties (Pen.
Code, § 664, subds. (e) & (f)).
name="_ftnref1" title="">[1] The court sentenced defendant to a
determinate term of incarceration of 166 years and an indeterminate term of 60
years to life.
On
appeal, defendant raises six issues: (1)
the court erred in declining to sever trial on Counts 1 and 2 from the
remaining charges; (2) the court erred in declining to dismiss a juror for
misconduct; (3) the court erred in denying defendant’s motion for new trial;
(4) the court abused its discretion in precluding defendant’s defense on
several bases; (5) the court erred by prohibiting evidence of third party
culpability; and (6) defendant was cumulatively prejudiced by the
aforementioned errors.
name="_ftnref2" title="">[2] We affirm the judgment.
On
December 2, 2007, CHP Officer
Richard Murrieta was patrolling the Interstate 10 freeway in the areas of Beaumont
and Banning with his partner, Officer Jeff O’Steen. At approximately 2:30 a.m., they observed a silver PT Cruiser with a broken
taillight slightly weaving over the course of a couple miles. They attempted to conduct a traffic stop of
the vehicle as it exited the freeway. As
soon as the patrol car’s red emergency lights came on, the PT Cruiser
accelerated through a stop sign and made a left turn. The PT Cruiser attempted to reenter the
Interstate 10 freeway traveling eastbound; the vehicle abruptly stopped.
The
patrol car stopped two to three car lengths behind the PT Cruiser. Murrieta witnessed a man sticking his torso
out of the right rear passenger window with his arm extended toward them with
what appeared to be a handgun; he fired three shots at the officers. The individual got back into the PT Cruiser
and the vehicle continued on to the eastbound Interstate 10 freeway.
Murrieta
relayed to dispatch their location and that they had been fired upon. They then activated the patrol car’s sirens
and pursued the fleeing PT Cruiser as it approached speeds of up to 95 miles
per hour. As the PT Cruiser began
exiting the freeway again, the same individual hung out of the right rear side
of the PT Cruiser and fired another two to three shots toward the
officers. After traveling approximately
six additional miles, the individual again fired several more shots at the
officers.
At
some point, another CHP patrol car driven by Officer James Hefele and
containing Officer Michael Forguson took the lead in the pursuit. The individual in the PT Cruiser then fired
up to seven rounds at the patrol cars.
As the pursuit continued, the individual fired at the officers up to an
additional seven times at various locations with at least two shots each
time. Hefele could hear the sounds of
bullet fragments hitting the undercarriage of his patrol car.
The
PT Cruiser eventually entered the Soboba Indian Reservation.
turned around and headed toward Hefele’s patrol car. Hefele fired several shots at the PT
Cruiser. The PT Cruiser then stopped and
several occupants fled from the PT Cruiser into the dark. Murrieta later identified the shooter as a
Hispanic male. Hefele testified the
shooter was an adult male who appeared Hispanic. Defendant matched the descriptions provided
by the officers.
Police
responding to the scene found all four doors of the PT Cruiser open. Swabs of four recent drops of blood on the
rear passenger door were collected. Four
.40-caliber rounds were retrieved from the vehicle. One expended .40-caliber shell was also
found, as well as a cardboard ammunition box on which was a drop of blood.
On
December 31, 2007, Sheriff’s Lieutenant John Burden was patrolling the Soboba
Indian Reservation with Deputy Brandon Mullins after reports of a shooting
involving two vehicles earlier that day.
One of the vehicles was described as a silver Jeep and included its
entire license plate number. Around
11:00 p.m. Burden encountered the Jeep.
He then attempted to initiate a traffic stop. The Jeep accelerated to speeds in excess of
90 miles per hour. Someone on the
driver’s side of the vehicle began shooting at them.
Burden
contacted dispatch to report they were being shot at. Soon thereafter, Deputy Patrick Carroll,
driving another patrol vehicle containing Deputy Randy Lung, took over as the
primary vehicle in the pursuit. Another
police vehicle driven by Deputy Jerry Osterloh and containing Deputy Mark
Janecka joined the pursuit as well. The
chase reached speeds of up to 90 miles per hour until they headed into a
winding canyon and then into a recreational area known as “The Oaks.â€
In
the parking lot of The Oaks, the Jeep had been turned so that the driver’s side
now faced the pursuing patrol vehicles; several shots were then fired from the
Jeep. The windshield of the patrol car
driven by Osterloh shattered when a bullet hit it directly in front of
Osterloh’s seat, at his chest level; shards of glass flew inside the vehicle
spraying the deputies. Another bullet
hit the passenger side window of the patrol car being driven by Carroll.
After
ensuring neither deputy was injured, Janecka and Osterloh pursued the Jeep onto
a baseball field. They stopped adjacent
to the field where the Jeep started coming toward them. The deputies exited the patrol car and
started firing at the Jeep. The Jeep
turned, headed over a berm, and drove up a hill into the adjacent mountains
where it was abandoned when it became buried in sand up to its axles. The officers decided not to pursue the
vehicle into the mountains because it was dark and they feared being ambushed.
When
officers later approached the Jeep, they observed a single set of footprints
leading from the driver’s side of the vehicle to a barbed wire fence. On the fence they found a small piece of blue
material. Using a tracking dog, deputies
eventually also located a pair of socks, a size 11 pair of shoes, a pair of
shorts inside a pair of size 48 pants, a blue hooded sweatshirt, and a
.45-caliber handgun. They found
.38-caliber bullets in the left rear pocket of the pants.
Inside
the Jeep deputies found a .38-caliber revolver; a bag containing 9-millimeter
bullets and one .308-millimeter cartridge; a pistol case; two rounds of
ammunition—one 9-millimeter and one .308-millimeter—in the center console; and
an assault rifle on the rear floorboard.
In The Oaks recreation area where the pursuit had ended, an officer
found four .45-caliber shell casings that had not been fired by any of the
deputies.
A
forensic technician obtained fingerprints from several places on the Jeep. Defendant’s fingerprints matched those of
several taken from the Jeep. A senior
criminalist with the Department of Justice extracted DNA from the blood swabs
of the PT Cruiser and ammunition box; they matched a DNA profile taken from a
swab from the inside of defendant’s cheeks.
A DNA profile obtained from the socks recovered near the Jeep also
matched defendant’s DNA profile.
U.S.
deputy marshals arrested defendant on March 27, 2008, at an apartment in Las
Vegas. Inside the apartment they found a
Smith and Wesson .45-caliber pistol, and a Glock .40-caliber pistol. They also found a pair of size 48 pants and a
pair of size 11 boots.
After
test firing the .40-caliber Glock, a criminalist compared the test-fired shells
with the two expended shells found in the PT Cruiser; they matched; thus, the
criminalist testified the shells found in the PT Cruiser were fired by the
Glock found in the apartment in which defendant was arrested.
A. SEVERANCE
Defendant
contends the trial court erred in declining to sever trial on Counts 1 and 2
from trial on the remaining counts. We
disagree.
In
addition to the counts discussed ante,
the People charged defendant by information with three counts involving an
incident occurring on July 25, 2007.
Those counts originally alleged the premeditated attempted murder of
Christopher Norte with a personal discharge of a firearm enhancement (Count
1—Pen. Code, §§ 664, 187, subd. (a), 12022.53, subd. (c)); assault with a
deadly weapon, a vehicle, upon a peace officer (Count 2—Pen. Code, § 245, subd.
(c)); and driving in wanton disregard for the safety of others while fleeing a peace
officer (Count 3—Veh. Code, § 2800.2).
Defendant filed a motion seeking to sever trial on Counts 1 through 3
from the remaining counts.
Defendant
conceded the offenses alleged in Counts 1 through 3 were of the same class of
crimes as the additional counts and allegations; however, defendant maintained
he was unfairly prejudiced by the direct evidence in Counts 1 through 3
involving an eyewitness identification, whereas evidence of the remaining
counts was solely circumstantial. He
further contended no evidence involved in Counts 1 through 3 was
cross-admissible with the remaining counts and enhancements.
The
People subsequently filed an amended information eliminating Count 1 and
renumbering former Counts 2 and 3 as 1 and 2.
The court then heard argument on the matter of defendant’s motion for
severance. The court found Counts 1 and
2 were no more prejudicial than the remaining counts, and were in the same
class of crimes as the remaining counts; therefore, it denied defendant’s
motion for severance.
Penal
Code Section 954 broadly “‘permits joinder
of different offenses
not related to the same transaction or event ‘if there is a common element of substantial
importance in their commission,
for the joinder
prevents repetition of evidence and saves time and expense to the state as well
as to the defendant.â€â€™ [Citations.] Moreover, . . . the requirement of section
954 that offenses
be ‘connected
together in their commission’
may be satisfied even though ‘the offenses charged “do not relate to the same transaction
and were committed at different times and places . . . against different
victims.â€â€™ [Citations.]†(Alcala v. Superior Court (2008) 43
Cal.4th 1205, 1218.) We review a
trial court’s decision to deny a motion to sever for abuse of discretion. (People
v. Thomas (2012) 53 Cal.4th 771, 799.)
“‘In determining whether a trial court abused its discretion under
section 954 in declining to sever properly joined charges, “we consider the
record before the trial court when it made its ruling.â€â€™ [Citations.]â€
(Id. at p. 798.)
Here,
the court indicated it had reviewed the preliminary transcript prior to hearing
the motion to sever with respect to the offenses occurring on July 25,
2007. Testimony at the preliminary
hearing established police officers were dispatched on July 25, 2007, at
approximately 3:15 a.m., in response to a shooting. Christopher Norte informed officers he had
been present when an argument ensued between defendant and another individual. Norte attempted to intervene; defendant beat
him, pulled out a revolver, pointed it at his head, and he then heard two
gunshots go off next to his left ear.
Norte broke free of defendant; defendant left sometime thereafter. Norte later noticed the right rear window and
right tire of his vehicle appeared to have been shot out. An officer later observed three bullet holes
in Norte’s car.
Officer
Terry Felizardo, one of the officers dispatched to the scene of the shooting,
observed a vehicle matching the reported description of the vehicle in which
defendant had fled; Felizardo initiated a traffic stop. The vehicle pulled into a residential
driveway where Felizardo positioned his car behind it; Felizardo and other
officers exited their vehicles.
Defendant drove the vehicle across the front lawn and exited the
property between two patrol cars, nearly hitting one of the officers.
The
police officers then engaged in a high-speed pursuit of defendant in which
defendant drove his vehicle erratically and dangerously, disobeying multiple
traffic laws. Defendant drove the
vehicle onto the Morongo Reservation.
The CHP then took over the pursuit.
Here,
although the offenses charged in the second and third incidents took place at
different locations, times, and against different victims, there were common elements of substantial importance in the
commission of the offenses in all three incidents. All three incidents involved the use of
firearms, assaults on police officers, and successful attempts to evade police
officers while driving recklessly and dangerously without regard to the safety
of others. Moreover, any prejudice from
the inclusion of the offenses in the first incident at trial was outweighed by
the overwhelming circumstantial evidence of defendant’s identity from the
subsequent incidents. Indeed, as the
trial court pointed out “one could certainly argue that the fingerprint
evidence and the DNA evidence as physical evidence of identification,
circumstantially, is more . . . damning than a[n] identification of a person
coming from—whether it be an officer or others identifying a person from a
fleeing vehicle.â€
Furthermore,
the shooting in the first incident would appear to involve merely the threat of
homicide against a civilian because the purported victim was not actually shot,
even though the perpetrator easily could have done so at such a close
range. It likewise involved the shooting
of unoccupied property. Contrasted with
what the jury found was multiple, intentional attempts to kill police officers
in the latter incidents, evidence of the first incident was far less
prejudicial to defendant. As noted by
the People, the jury eventually acquitted defendant of the offenses for which
he was charged in the first incident.
Thus, the court acted within its discretion in denying defendant’s
motion to sever the counts.
B. JUROR MISCONDUCT
Defendant
contends the court erred in declining to dismiss alternative juror No. 2 (AJ2)
for juror misconduct. We disagree.
During
investigation into purported impropriety by juror No. 4 (J4)
court that AJ2 had conducted some internet research on defendant’s name on
AJ2’s cell phone. AJ2 had purportedly
shown AJ1 a picture on her cell phone; AJ1 informed AJ2 she did not want to see
it.
The
court then called AJ2 into the courtroom and asked if she knew anything
regarding any juror conducting internet research outside the record developed
in court. AJ2 reported looking up
defendant’s name on her cell phone prior to being selected as a juror; the
result of the search produced only a Facebook page not related to defendant;
she denied sharing the information with any other juror.
The
People argued that only J4 should be dismissed.
Defense counsel argued both jurors suspected of conducting outside
research should be dismissed. The court
dismissed J4, but found AJ2’s purported misconduct different “because she did
that research at a time before she was sworn†and AJ1 “could not even indicate
what the photograph was that was on the phone . . . .†J4 was replaced by AJ2.
“In
determining [juror] misconduct, ‘[w]e accept the trial court’s credibility
determinations and findings on questions of historical fact if supported by
substantial evidence.’ [Citation.]â€
(People v. Collins (2010) 49
Cal.4th 175, 242.) A juror’s receipt of
evidence from an outside source “creates a presumption that the defendant was
prejudiced by the evidence and may establish juror bias. (People
v. Ramos (2004) 34 Cal.4th 494, 519; Collins,
at p. 256.) A juror’s use of “a computer
may be misused to investigate the
evidence. [Citations.]†(Collins
at p. 255.)
Here,
the trial court’s finding that AJ2 had not committed juror misconduct was
supported by substantial evidence. AJ2
indicated she had conducted an internet search of defendant’s name prior to
being sworn in as a juror. She indicated
that the result only produced a Facebook page for someone other than
defendant. She stated that the result
did not come up with a photograph and she did not recall showing it to anyone. Although, AJ1 stated AJ2 had shown her a
picture, AJ1 did not say it was a picture of defendant. AJ1 stated that as soon as AJ2 showed AJ1 the
picture, AJ1 told her she did not want to look at it. A rational inference of AJ1’s statement is
that AJ1 did not see of whom the picture on the phone really was. Alternatively, the court could have made a
credibility determination in favor of AJ2’s statement that no picture came up
and that she did not show anything to anyone.
In any event, no evidence suggested that AJ2 showed AJ1 a picture of
defendant or, if so, that it was at all prejudicial. Thus, the court’s ruling was supported by
C. MOTION FOR NEW TRIAL
Defendant
contends the trial court abused its discretion in denying his motion for new
trial based on AJ2’s purported juror misconduct. We disagree.
After
trial, defendant filed a motion for new trial based in part upon AJ2’s alleged
juror misconduct. Attached to the motion
was a declaration of AJ1 in which she declared that AJ2 had shown AJ1 a picture
of defendant on her cell phone after they were both sworn as jurors. Moreover, AJ1 declared the picture was a
“Wanted Poster†of defendant describing him as armed and dangerous; AJ1
recognized defendant from the picture due to the neck tattoo on both the
individual in the picture and on defendant in the courtroom. The purported Wanted Poster was attached to
the motion for new trial, as well as to appellant’s opening brief in this case.
At
the hearing on defendant’s new trial motion, the court found the allegations in
AJ1’s declarations “quite frankly, suspect.â€
This was because when initially asked direct questions about what AJ2
had shown her, AJ1 responded “that she didn’t want to see it, didn’t look at
it, and didn’t draw her attention to it[.]â€
The court found AJ2’s statements during the misconduct investigation
contrasted drastically with what she now stated in her declaration: “I do not find at this time . . .
any reliability with respect to the statements that are set forth in
conflicting fashion by [AJ1]†in her declaration. The court denied defendant’s motion.
“‘On
appeal, a trial court’s ruling on a motion
for new trial is reviewed under a deferential abuse of discretion
standard. [Citation.] Its ruling will not be disturbed unless
defendant establishes “a ‘manifest and unmistakable abuse of discretion.’â€â€™ [Citation.]â€
(People v. Homick (2012) 55
Cal.4th 816, 894.) “We first determine
whether there was any juror misconduct.
Only if we answer that question affirmatively do we consider whether the
conduct was prejudicial. [Citation.]
In determining misconduct, ‘[w]e accept the trial court’s credibility
determinations and findings on questions of historical fact if supported by
substantial evidence.’ [Citation.]†(People
v. Collins, supra, 49 Cal.4th at
p. 242.)
Here,
we accept the trial court’s credibility determination that AJ1’s subsequent
statements in her declaration lacked reliability. Indeed, AJ1 was afforded ample opportunity
during trial to make known the nature and timing of AJ2’s communications with
her regarding defendant. That she now
asserted the picture shown her was the wanted poster presented to her by the
defense was “suspect.†Moreover, AJ1 did
not participate in the jury’s deliberations.
AJ2 informed the court earlier that despite whatever she had seen in her
“research†she would not discuss it with any of the other jurors and would make
any decision in the case based solely on the evidence presented at trial. Furthermore, as one of the participating
jurors in the deliberations of the charges against defendant, AJ2 acquitted
defendant of Counts 1 and 2. Finally, as
the People note, it is difficult to imagine what prejudice would attain from a
view of the wanted poster if defendant’s neck tattoo was visible in court and
from the evidence adduced at trial since the jury would already be fully
conversant with defendant’s prior status as a wanted man in connection with
attempted murder. Thus, we find no
misconduct, let alone prejudicial misconduct.
D. TRIAL COURT’S EXCLUSION OF DEFENSE
EVIDENCE
Defendant
contends the trial court denied his right to effectively cross-examine
witnesses; however, each of the witnesses to which defendant refers were his
own. Thus, defendant’s contention is
more properly denominated as a denial of his right to present a defense. We hold the trial court committed no error of
fact or law such that defendant’s right to present a defense was not prohibited
to the extent that it resulted in a due process violation.
“The
complete
exclusion of defense
evidence . . . ‘“theoretically could rise to [the] levelâ€â€™ [citation] of a due
process violation. But short of a total
preclusion of
present a mitigating case to the trier of fact, no due process violation
occurs; even ‘“[i]f the trial court misstepped, ‘[and its] ruling was an error
of law [and] there was no refusal to allow [defendant] to present a
only a rejection of some evidence concerning the defense.’â€â€™ [Citation.]†(People
v. Thornton (2007) 41 Cal.4th 391, 452-453.) The trial court has “discretionary power to
preclude examination on collateral matters.
[Citation.]†(
607.)
1. SERGEANT
DEAN SPIVACKE
The
court requested defense counsel provide an offer of proof for several witnesses
he intended to call. Defense counsel
indicated his intent to call Spivacke because he believed Spivacke had taken a
statement from Hefele that contradicted the testimony Hefele gave during the
prosecution’s case in chief. In
particular, defense counsel alleged Hefele told Spivacke he did not believe
defendant was trying to kill him. The
court ruled, “certainly with respect to Sergeant Spivacke, he would be
permitted to testify about the statement that Hefele supposedly made . . . that
he didn’t think that they were trying to kill him.â€
In
addition, defense counsel indicated his desire to call Spivacke to establish
the lighting conditions as it pertained to the officers’ ability to identify
defendant. Moreover, defense counsel
intended to ask Spivacke about his responsibility for obtaining evidence at the
third crime scene. The prosecutor told
the court she had been informed that Spivacke was not at the location at a time
when he could opine about the lighting conditions at night. Furthermore, the prosecutor told the court
Spivacke had no responsibility for collecting evidence at the Oak Hills
location.
The
court ruled it would conduct an Evidence Code section 402 hearing immediately
prior to defense counsel calling Spivacke to testify, in order to determine
whether he had been at the location at nighttime so as to have a foundation for
testifying regarding lighting conditions.
In addition, the court would inquire as to Spivacke’s responsibility for
the collection of evidence regarding the latter incident. If Spivacke answered “no†to either question,
defense counsel would be prohibited from asking questions concerning those
subjects: “So it’s going to require some
very brief [Evidence Code section] 402s, as far as the Court is
concerned.†The next day defense counsel
informed the court Spivacke was not needed “at this point.†Defense counsel never called Spivacke to
testify.
We
hold defendant forfeited any issue as to the trial court’s purported
interference with his right to present a defense with respect to the testimony
of Spivacke for two reasons. (See
125, 129, fn. 30, 176.) First, defendant
failed to object to the trial court’s requirement of an Evidence Code section
402 hearing regarding Spivacke’s testimony.
Second, defendant never called Spivacke as a witness. Thus, there is simply no way to tell how the court
would have ruled or if it even would have required such a hearing. In any event, we can discern no prejudice to
defendant.
2. SENIOR
INVESTIGATOR ROBERT MASSON
At
the same hearing discussed above, defense counsel stated he wished to call
Masson because he was the primary person in charge of the investigation of the
third incident and would “testify that his investigation was lacking in
integrity and was incompetent[.]†The
court responded, “as calmly as I can . . . I am holding this hearing
not to waste the Court’s time or counsel’s time. . . . [¶] It
is not a fishing expedition at this point in time. I’m asking simply for an offer of proof as to
what the relevancy of these witnesses would be and what they would be asked
about. I don’t expect it to be a
sarcastic response.â€
Defense
counsel responded Masson interviewed a number of potential witnesses, one who
made a partial identification of the perpetrator as an Indian from Soboba. Masson had also purportedly manifested a lack
of objectivity when he stated something “to the effect that somebody ought to
punch that fat fuck [defendant] right between the eyes.â€
The
People argued the potential witness to whom
was intoxicated and said she had no real recollection of the evening. The court responded that it was “up to the
jury to decide . . . whether or not they believe . . . or don’t
believe what it is she is saying. . . .
It’s not for the court to decide that it’s not useful information.†Ultimately, the court concluded it would
allow Masson to testify subject to an Evidence Code section 402 hearing prior
to his testimony.
Defendant
did not call Lara as a witness.
Defendant called Masson to testify the next day.
saw three muzzle flashes and that while he was pursuing the suspect, it had not
registered in his mind that the suspect was trying to kill him. Defense counsel did not ask any questions
regarding a woman’s identification of a perpetrator in the case or any aspect
of his supervision of the investigation.
Defendant
maintains the notion that the trial court could restrict “the defense’s use of
confrontation to the reports created by law enforcement for the purpose of
prosecution constitutes an outrageous, oppressive[,] and utterly baffling abuse
of judicial discretion and the law on [defendant’s] right of confrontation and
compulsory process.†Defendant provides
no argument or authority for how his rights to present a defense were
prohibited. As such, he has forfeited
the issue. (People v. Whalen (2013) 56 Cal.4th 1, 72, fn. 28 [failure to
provide argument or authority supporting the defendant’s contention forfeits
the issue].) Defendant fails to provide
any argument or authority for the trial court’s asserted lack of authority to
determine the relevance of a witnesses’ testimony prior to permitting defendant
to call that witness. In particular,
here, defendant fails to show the court required such a hearing to determine
the propriety of Masson’s testimony or limited defendant’s questioning of
Masson in any way. Moreover, defendant
had the opportunity to cross-examine Masson when he was earlier called by the
prosecution. Defendant has failed to
carry his burden that the trial court prejudiced him by restricting his
examination of Masson in any way.
3. INVESTIGATOR
RYAN BODMER
At
the Evidence Code Section 402 hearing discussed ante, defense counsel informed the court he wished to call
Bodmer. The People told the court they
intended to call Bodmer. Bodmer later
testified on behalf of the People that he collected the socks and shorts found
near the scene of the last incident. He
also took swabs from the grip of a rifle taken from the back of the Jeep for
DNA analysis. Defense counsel
cross-examined Bodmer.
Supervising
fingerprint examiner Roxanne McLean testified she took fingerprints from
defendant. She compared those prints and
the prints defendant provided upon booking to prints obtained from the Jeep;
they matched. Defense counsel
cross-examined McLean. During
cross-examination, defendant attempted to question McLean regarding a print
obtained from the Jeep matching another prior suspect; however, because it had
not been discussed upon direct and had previously been excluded during an
Evidence Code section 402 hearing, the court sustained the People’s objection
to the question. Nevertheless, the court
noted defense counsel would be free to pursue that line of questioning if and
when he called McLean during his own case.
Thereafter, defendant indicated he would be calling McLean in his case
in order to present evidence that she compared prints found on the Jeep to
those of the other prior suspect, Johnny St. Marie.
Defense
counsel informed the court he intended to call Bodmer to establish the chain of
custody for the prints obtained from the Jeep that belonged to St.
Marie. However, when informed that
Bodmer did not lift the prints, he informed the court he did not need to call
Bodmer. Later, when informed that Bodmer
had interviewed St. Marie, the court acknowledged defense counsel may need to
call Bodmer to the extent St. Marie’s testimony conflicted with the information
he gave Bodmer during his interview.
St.
Marie was originally arrested for attempted murder of law enforcement in the
instant case. The court admonished St.
Marie, “You are not going to be asked as to why it was that you were arrested
or the cause of you being arrested, and you are not to mention that you were
arrested for this at some earlier time.
[¶] You’re also likewise not
going to be asked about, nor should you testify, that the charges regarding the
attempted murder of the officers was ultimately dismissed as . . . against
you†St. Marie testified the Jeep belonged
to his uncle; St. Marie had borrowed it from him from September through
December 2007. He testified he wore a
size 11 shoe and that his waist size varied between 44 and 48. St. Marie testified he had firearms, a
.45-caliber handgun and a rifle, in the Jeep in late December. He let his girlfriend Christina borrow the
Jeep on December 27, 2007; he never saw it again.
Defense
counsel began to ask St. Marie if, during his interview with Bodmer, Bodmer
suspected St. Marie of something. The
People objected that the question called for speculation and was beyond the
scope of the cross-examination. The
court excused the jury and reprimanded defense counsel for “dancing very close
to the line of the rulings that the Court has made regarding the admissibility
of the . . . nature of the investigator’s intent when they were questioning the
witness.â€
During
the month of December, St. Marie was a parolee wanted by police and was
attempting to evade capture. St. Marie
testified he would not be surprised if his prints were found in the Jeep or on
the firearms. He testified he had prior
felony convictions for spousal abuse and
carjacking. After his arrest in January
2008, he pled guilty to being an ex-felon in possession of a firearm.
Defense
counsel called Bodmer to testify. Bodmer
testified he interviewed St. Marie on January 29, 2008, because he was
interested in the firearms that had been recovered from the Jeep. St. Marie initially denied he was aware there
were any weapons in the Jeep. However,
he later informed Bodmer that he may have touched some of the guns found in the
Jeep; he described them as an AK-47, a .45-caliber handgun, “a shotgun-style
rifle,†and a “Desert Eagle.†He said
the weapons in the Jeep were for sale.
St. Marie said he wore a size 11 shoe.
He denied being the driver of the vehicle on December 31, 2007.
Defendant
maintains the court’s requirement that defendant “pinpoint for him the areas of
questions that [he] plan[s] on having him respond to†prejudicially inhibited
his defense. Moreover, defendant
contends the court’s restriction of his questioning of Bodmer as it pertained
to Bodmer’s belief regarding the veracity of St. Marie’s statements to him
during the interview were an abuse of discretion.
Again,
defendant fails to provide any authority for the proposition that a trial court
is not permitted to require counsel to provide an offer of proof regarding the
relevancy of a potential witnesses’ testimony.
Here, the court did not prohibit defendant from calling and questioning
Bodmer during trial. Rather, the court
merely prohibited defense counsel from querying Bodmer regarding his personal
opinion as to St. Marie’s veracity or guilt.
The court’s ruling was well within its discretion. Indeed, even expert witnesses—which Bodmer
was not called as—are not permitted to express an opinion regarding a
defendant’s guilt or innocence. (
1045.) Here, the jury was the
appropriate determiner of St. Marie’s truthfulness during his interview with
Bodmer and, ultimately, whether he had any culpability in the instant
crimes.
4. ERLENA
DAILEY AND AMANDA LUGO
Prior
to the testimonies of Erlena Daily and Amanda Lugo, the court requested defense
counsel remind it “of the offer of proof as to those two and what it is that
they would be testifying to[.]†Defense
counsel’s offer of proof regarding Daily was that she was a lifelong friend of
defendant’s sister and had known defendant since she was 14 years old. In early June of 2007, Daily ran into defendant
and defendant’s sister, Sara,
name="_ftnref7" title="">[7] in Las Vegas; defendant and Sara informed her
they did not have a place to stay. Daily
rented them a suite of rooms in return for $2,500.
Daily
left Nevada, but returned in September 2007, when she arranged a long-term
rental for them. In November 2007, she
again saw them in Las Vegas: “So the
significance to me is that [defendant] was out of state for purposes of
avoiding problems with the police, especially relevant as to November. . .
. She of course cannot say . . . where
my client was on December 2nd, specifically, nor can she say where he was
specifically on 12/31.â€
The
court responded, “So the only relevancy to her testimony would be that they
gave a substantial sum of money to her and were not going to rent a room in
their own names but were going to have her rent a suite of rooms in her name
for them to stay in.†The People
objected, noting first that defense counsel’s recitation of facts was “quite
different than the report I got yesterday.â€
Second, the People argued that whether defendant actually resided in
either the suite in September or the long-term rental in November consisted of
hearsay.
Defense
counsel’s offer of proof regarding the testimony of defendant’s mother, Amanda,
was that she would testify that in June 2007 Beaumont police officers came
looking for her and threatened defendant’s life. Amanda thereafter went back to prison for a
short time on a parole violation.
However, later when police were looking for her son, they asked her where
he was; when she could not provide his whereabouts, they “took [her] in,†she
tested dirty, and she was found in violation of her parole again. She was released in February 2008 and saw
defendant in Las Vegas in March 2008.
The
court noted, “[t]he relevancy that I’m being told that that should be evidence
for is the fact that [defendant] fled the jurisdiction of Riverside County
because he feared for his safety. But
the only person that can testify as to that issue would be [defendant]
himself. In other words, everything else
. . . the Court believes is otherwise irrelevant but for it coming from
[defendant]. “The only person that can
testify as to the reason behind the flight, that the ‘I fled because I thought
I would otherwise—my life would be in jeopardy, even though I was not guilty of
this crime,’ would be [defendant].†“The
only person who can testify as to fleeing for some motivated reason other than
just simply the fact that he left, that evidence of leaving, is [defendant],
because it would come from his—it would be an explanation of—of the action of
moving, if that makes sense.â€
Defense
counsel responded, “this is essentially evidence of an imperfect alibi. Clearly, what I want the jury to infer, is
that for whatever his motive, [defendant] was not in California in
December[.]†The court replied there was
no evidence of that. Defense counsel
insisted that from the evidence defendant was residing in Las Vegas in November
2007 and March 2008; the jury could infer he was also living there in December
2007. The court replied, “The ability to
travel is what undoes the—the aspect of your argument, and it absolutely is not
an—it’s not an alibi. It’s not an
imperfect alibi. It is not evidence of
that at all, and if that’s the unspoken reason that you really wish to have
this evidence presented, I don’t see it—evidence of that at all.†“It’s the reasonableness of the inference
that I’m talking about though is—I understand that that’s the inference you wish
to make, but circumstantial evidence has to be relevant evidence in order to be
allowed†into evidence for the jury to make that inference. “[I]t’s so far attenuated in this instance,
that’s—that’s why I just am not seeing it.â€
The
court posited that if defense could produce a witness to say defendant was
living at the apartment in Las Vegas between the dates of the offenses, she
would entertain the admissibility of such testimony insofar as it did not
violate late discovery provisions. Thus,
if defense counsel could produce evidence of defendant’s presence in more
temporal proximity to the date of the offenses, the court would consider
admitting such evidence. Therefore, the
court denied the admissibility of the testimonies of Amanda and Dailey, but
would reconsider the matter pending the production of a further, more relevant
offer of proof. Trial adjourned for the
weekend.
The
following Monday, defense counsel asked the court if it had reconsidered its
previous ruling regarding the testimonies of Daily and Amanda. The court stated, “the more I mulled, the
more I could not think of the relevancy, at least as currently explained to the
Court in the offer of proof, and so . . . unless there’s some additional
information that you have to offer the Court, I would stand by the Court’s ruling
in terms of the relevancy.†Defense
counsel stated, “I really don’t have any further information from the two of
them to add to the Court at this time.â€
Nonetheless,
defense counsel expressed defendant’s concern that he was being coerced to
testify by the court’s ruling. The court
responded, “it concerns the Court when I hear it being explained on the record
that [defendant] feels coerced into testifying.
[¶] [Defendant], make no mistake
about it, sir, it is completely your right and your right alone, with the
assistance of your counsel in terms of whether or not you decide to testify or
not to testify. . . . [¶] In terms of the Court’s rulings that I make,
I make those based upon the information that I am provided, and it is
absolutely no suggestion to you whatsoever.
When I make statements that it cannot be established or something cannot
be established by the information that the Court is hearing from . . . an
overview of what a witness will say, and I suggest that the only person that
could otherwise establish the fact would be yourself, does not suggest in any
way, shape, or form that you should or should not take the witness stand. It is just a commentary about the point that
counsel is attempting to establish cannot be made based upon what I’ve heard
from the witnesses’ summary of what their testimony would be[.]â€
Defendant’s
contention the court was attempting to compel defendant to testify against his
will is completely belied by the record.
The court discussed, at length, that any testimony by anyone other than
defendant regarding the reason for his flight to Nevada would either be hearsay
or speculation. This was a sound
evidentiary ruling well within the court’s discretion. The fact that only defendant could testify
regarding his own state of mind in leaving the state did not compel him to
testify.
Moreover,
even if evidence had been admitted that defendant feared law enforcement for
reasons entirely unrelated to the offenses for which he was charged,
instruction of the jury with CALCRIM No. 372, the flight instruction, would
still have been proper because it would have been up to the jury to determine
why defendant fled the state.
Finally,
defendant’s contention the court effectively eviscerated his alibi does not
withstand scrutiny. To the extent the
jury would have believed their testimonies, the fact that Amanda and Daily saw
defendant in Las Vegas at some vague time in November 2007 and March 2007, was
simply too temporally tenuous to constitute an alibi when the crimes for which
defendant was found guilty occurred in Riverside County, within four hours
driving time of Las Vegas, on specific dates in December 2007. (See People
v. Riggs (2008) 44 Cal.4th 248, 296-297 [“Contrary to defendant’s assertion
on appeal that the missing witnesses would have supported his alibi defense, the offers of proof he made at trial showed that
these witnesses had nothing to do with establishing defendant’s whereabouts,
and, further, that their testimony would have been of little assistance to himâ€].) The court acted within its discretion in
determining Amanda’s and Daily’s testimonies were irrelevant.
5. SARA
LUGO
During
its discussion with defense counsel regarding the admissibility of the
testimonies of Amanda and Daily, the court noted that defendant’s sister Sara,
with whom defendant purportedly lived at the time of his arrest, could
ostensibly testify defendant was a permanent resident of Las Vegas. The court was “puzzled as to why she would
not be able to come in, take an oath to tell the truth, and say that she saw
him in Las Vegas all throughout December[.]â€
The following court day, defense counsel stated he had spoken with Sara,
but she wished to confer with an attorney before agreeing to testify. Defense counsel expressed that he intended to
call Sara to testify once she became available.
The People noted that it had received no reports at that point
establishing the relevancy of her testimony.
The
next day, the court requested an offer of proof for Sara’s testimony. Defendant’s offer of proof was that Sara was
living with defendant in the apartment at the time he was arrested.
The
court thereafter conducted an Evidence Code section 402 hearing with respect to
the testimony of Sara. Sara testified
she and defendant were in a motel in Las Vegas on December 2, 2007. On December 31, 2007, she was likewise living
with and spent the evening with defendant.
She had been living in Las Vegas for “a couple monthsâ€; she had lived in
four or five different places with defendant.
They kept moving because they did not want the police to find them. Sara believed the police were going to kill
defendant because they had killed two other members of their family and had
threatened to kill defendant. At the
time they moved to Las Vegas she believed there was a warrant out for
defendant’s arrest. Sara testified she
was residing with defendant on March 28, 2008, the day they were both
arrested. She testified she had a black,
Glock handgun under her bed in the apartment that day.
After
Sara’s testimony the court observed that it appeared “she has relevant
information regarding the whereabouts of . . . defendant on December the 2nd
and December the 31st.†The court found
the portions of her testimony regarding her living arrangements in Las Vegas
and her ownership of the Glock relevant information for the jury. It noted that none of the information to
which Sara testified had been made known to the People until that day. Nevertheless, the court barred testimony
regarding why Sara was in Las Vegas and why she had been moving around so much
because Sara indicated she had never told defendant about the threats to him
and was not sure if any other members of her family had communicated such to
him. Likewise, the court prohibited any
testimony regarding the deaths of the two other family members. It found the deaths as “much more prejudicial
in terms of extraneous information that has nothing to do with the crimes
involved here or the charges here, and is irrelevant to these
proceedings[.]†“[I]t’s up to the jury
to decide why [defendant] was moving from apartment to apartment.†The court and the People also noted Sara had
been watching the trial prior to her announcement as a potential witness.
Sara
testified before the jury that at the time they were arrested in March 2008,
she had been living with defendant in an apartment in Las Vegas for three to
five months. They had moved to Las Vegas
in October 2007. She saw her brother
every day in December 2007, including December 2, and 31, 2007. She purchased the Glock .40-caliber handgun
from Nino Garcia in November 2007; she never let defendant use it. She had incurred several felony convictions,
most involving firearms. Sara had used
13 aliases, three different birth dates, and several forms of false
identification. Sara learned of
defendant’s arrest in the instant matter in 2008, but did not come forward with
the information to which she testified until the day of her testimony.
Defendant
complains the court’s requirement of an Evidence Code section 402 hearing and
the manner of its conduct compromised Sara’s trial testimony because “she had
been so intimidated . . . as to mitigate her effectiveness as a defense witness
to prove [defendant] had relocated to Las Vegas and had remained there during
the time of the shooting incidents.â€
Defendant additionally contends the court abused its discretion in the
manner in which it restricted her testimony.
We
find no evidence of any unlawful intimidation of Sara. The court examined Sara at the Evidence Code
section 402 hearing regarding her many prior convictions, because she had just
been presented as a witness that day, after the People had already rested their
case and in the middle of the defense’s case.
The People had been given no opportunity at that point to check Sara’s
criminal history. The court merely
examined Sara to give the People some notice regarding impeachment evidence on
a witness that was presented far beyond the normal time for discovery.
Moreover,
Sara was permitted to testify that she had lived with and saw defendant every
day of December 2007. The court’s
limitation on Sara’s testimony regarding a purported war between the police
department and her family and tribe was simply not relevant because there was
no indication that defendant knew anything about it. Sara testified during the Evidence Code
section 402 hearing that neither she nor any member of her family that she knew
of had told defendant about the killing of family members. Moreover, Sara was not sure if one of the
killings had occurred before or after she and defendant were arrested. The first killing occurred in 2005, severely
attenuating any motive for defendant to wait until 2007 to flee from any
ostensible intent of the police to assassinate him. Furthermore, the jury was aware defendant was
wanted, as early as July 25, 2007, for the offenses charged in Counts 1 and
2. Thus, the court acted within its
discretion in limiting Sara’s testimony to what she observed and not what she
speculatively believed defendant might know.
E. THIRD PARTY CULPABILITY
Defendant
contends the trial court abused its discretion in prohibiting defendant’s
evidence of the third party culpability of Nino Garcia and Johnny St.
Marie. We disagree.
“‘[T]o
be admissible,
evidence of the culpability
of a third
party
offered by a defendant to demonstrate that a reasonable doubt exists concerning
his or her guilt[] must link the third person either directly or circumstantially to the actual
perpetration of the crime. In assessing
an offer of proof relating to such evidence, the court must decide whether the
evidence could raise a reasonable doubt as to defendant’s guilt and whether it
is substantially more prejudicial than probative under Evidence Code section
352.’ [Citations.] Evidence of a third party’s [other] crimes is inadmissible
to establish the third
party’s
criminal propensity. [Citations.] For evidence of an uncharged offense to be
to establish the third
party’s
identity as the perpetrator of the charged crimes, ‘“[t]he pattern and
characteristics of the crimes must be so unusual and distinctive as to be like
a signature.â€â€™ [Citations.]
A large number of common marks may, when viewed in combination,
establish the required distinctive pattern.
[Citation.] A trial court’s
ruling excluding third
party
evidence is reviewed for abuse of discretion.
[Citation.]†(
580-581.)
“[E]vidence
of mere motive or opportunity to commit the crime in another person, without
more, will not suffice to raise a reasonable doubt about a defendant’s guilt .
. . . [Citations.]†(People
v. Page (2008) 44 Cal.4th 1, 38.)
Where evidence of third party culpability would necessitate a mini trial
on the issue, it is properly excluded as creating the possibility of confusing
the issues or of misleading the jury. (
582.)
1. NINO
GARCIA
Prior
to trial, the People filed a brief seeking to exclude evidence Garcia was
involved in the shooting involving the PT Cruiser. Garcia was apparently the owner of the
vehicle. On January 15, 2008, Garcia
fired upon officers who were trying to apprehend him; the officers returned fire;
Garcia was killed.
At
a hearing on the issue, the court noted, “It certainly may come out, and it
seems to be probative that Nino Garcia or someone owned the PT Cruiser other
than [defendant].†However, the court
found that evidence of Garcia’s subsequent shootout with the police was more
prejudicial than probative on the issue of any third party culpability, i.e.
the evidence was “improper character evidence.â€
Moreover, the court found it would not raise a reasonable doubt as to
defendant’s guilt; thus, it ruled evidence of the shooting would be excluded.
Here,
evidence of a shootout between Garcia and police was more prejudicial than
probative because it would have done nothing to connect Garcia to the offenses
of December 2, 2007, other than evidence his bad character. As the trial court noted, there was little
doubt that someone other than defendant was in the vehicle on December 2, 2007;
however, even if present, evidence of Garcia’s subsequent shootout with the
police did “not tend to link anyone other than defendant to ‘actual
perpetration’ of the charged crime. [Citation.]†(People
v. DePriest (2007) 42 Cal.4th 1, 44.)
In other words, simply because Garcia had (1) engaged in a shootout
in a parking lot, (2) while not inside a vehicle, (3) more than a month after
the second incident, did not logically connect him to the shooting of police
officers on December 2, 2007, from a moving vehicle. Moreover, the court specifically did not
preclude the admission of evidence of the identity of the owner of the PT
Cruiser, which would have linked Garcia to the charged crimes.
Furthermore,
overwhelming evidence of the defendant’s identity as the shooter was presented
during trial. Defendant matched the
description of the shooter provided by the officers. The shooter fired his shots from the right
rear passenger window, not the driver’s window.
Swabs of four recent drops of blood were taken from the rear passenger
door of the PT Cruiser; DNA profiles of the blood matched defendant. A .40-caliber Glock firearm was found on the
premises when defendant was arrested in an apartment in Las Vegas; shells
test-fired from the gun matched those found inside the PT Cruiser. Thus, even if the court erred in excluding
the evidence, we conclude it was not reasonably probable a result more favorable
to defendant would have resulted in absence of the error. (People
v. Hartsch (2010) 49 Cal.4th 472, 497-498; People v. Geier, supra,
41 Cal.4th at p. 583.)
2. JOHNNY
ST. MARIE
The
People also sought to exclude evidence Johnny St. Marie was originally charged
in Counts 8 through 14 prior to the processing of the DNA and fingerprint
evidence in the case. The court ruled in
favor of the prosecutor because St. Marie was charged with offenses in this
case solely because he was the owner of the Jeep, not because of anything he
said when interviewed by police or any other evidence.
Again,
evidence St. Marie was previously charged in the instant case did not link him
to actual perpetration of the instant crimes.
It is certainly understandable the People would charge St. Marie with
the instant offenses after determining he was the owner of the Jeep. However, once the People were in possession
of the results of the fingerprint and DNA tests tying defendant to the scene of
the last incident, it is similarly understandable why those charges were dropped. Moreover, a review of the testimonies of St.
Marie and Bodmer, discussed above, make it abundantly clear the jury was at
least aware St. Marie was a suspect.
Indeed, evidence of St. Marie’s criminal record and ownership of the
Jeep was adduced at trial. Thus,
defendant had ample evidence with which to argue that St. Marie was the actual
guilty party. We discern no abuse of
discretion in the trial court’s evidentiary rulings.
F. CUMULATIVE ERROR
Because
we have found no error, either alone or in combination with others, defendant’s
claim of cumulative error fails. (
165, 201.)
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RICHLI
Acting P. J.
KING
J.
name="_ftn1" title=""> [1] The
jury acquitted defendant of assault with a deadly weapon on a peace officer
(Count 1—Pen. Code, § 245, subd.
(c)), and another count of evading law enforcement (Count 2—Veh. Code, §
2800.2). The jury hung on Counts 8 and 9
and the premeditation allegations attached to Counts 10 through 13; the court
declared a mistrial with respect to those counts and allegations.
name="_ftn2" title=""> [2] In
his reply brief, defendant raises for the first time an additional argument
that the trial court demonstrated bias against defendant when, during venire,
the court discussed recent police officer deaths and proceedings that honored
them. “It is axiomatic that arguments
made for the first time in a reply brief will not be entertained because of the
unfairness to the other party.†(
1075.)
