P. v. Mabon

Filed 10/24/06 P. v. Mabon CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Troy Dominic Mabon appeals his conviction by jury verdict of first degree murder (Pen. Code, § 187), possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)), and evading a police officer (Veh. Code, § 2800.2, subd. (a)). The jury also found true the allegation that he personally used and discharged a firearm during the murder. (Pen. Code, § 12022.53, subds. (c) & (d).) Defendant contends he received ineffective assistance of counsel because his attorney did not request CALJIC No. 3.20, which instructs the jury to view the testimony of an in-custody informant with caution, or CALJIC No. 2.60, which instructs the jury on the defendant’s right not to testify.

BACKGROUND

The Shooting

At approximately 2:00 a.m. on April 10, 2002, the victim, Dennis Lyons, was shot while standing on the 1500 block of 50th Avenue, near Bancroft Avenue, in Oakland.

The autopsy of the victim showed four bullet entry wounds and three bullet exit wounds to his head. The pathologist opined that the wounds were approximately the same size, but he could not determine the caliber of the bullet that caused the wound. The pathologist recovered one bullet in the victim’s head.

The police retrieved five brass .32 automatic caliber casings, one .25 caliber casing, three slugs, and one .32 live round in a brass cartridge case near the victim’s body.^[1] The live round and the five .32 casings were stamped “PMC.” No gun was found at the scene.

The criminologist who analyzed this ammunition opined that the three slugs and the bullet recovered from the victim could have been fired from the same gun, but he could not positively identify them as coming from the same gun. The criminologist explained that a .32 caliber automatic firearm is designed to fire .32 caliber bullets from any bullet manufacturer.

Percipient Witnesses

1. Ana Fine

Ana Fine (Ana) dated the victim. She had seen him sell narcotics in the 50th Avenue neighborhood, but she had never seen him with a gun or engaging in any violent act. She did not know defendant, but she had seen him once during an incident in high school, and she once saw him in the 50th Avenue area. She identified him at the trial.

Ana is cousin to and friends with two sisters, Luisa Mapapalangi, known as Weezey, and Naipua Togia, known as Pua.

During the day of April 9, 2002, the victim telephoned Ana to say that he would be “on 50th” later that evening. In the very early morning of April 10, Ana, accompanied by Weezey, drove to 50th Avenue to see if the victim “was ready to leave.” Ana saw him on 50th Avenue, “just standing there.” As she pulled up to him, Weezey’s sister Pua arrived on her bicycle. A man named Dodie, whom Ana had never seen but whom the victim appeared to know, also walked up. The victim was ready to leave, but the five of them (Ana, Weezey, Pua, Dodie & the victim) began conversing sociably about Zodiac signs, because Weezey’s birthday was the following day.

During the conversation Ana and Weezey were, respectively, in the driver and passenger seats of Ana’s car, Pua was outside the passenger door on her bike, and the car radio was on. When a favorite song of the victim came on, he asked Ana to turn up the volume and started to sing and dance along to the song. Ana was laughing at his dancing when, for reasons she did not understand, he started hitting her car and telling her to leave. She then heard gunshots, saw sparks, and froze, not knowing what to do. She saw the victim trying to get away from somebody. She could not hear what, if anything, the victim was saying because the music from the car radio was too loud. The gunshots were coming from someone standing near the victim. Ana could not see the person’s face, but she saw he was tall and slender. Weezey had ducked down in her seat and was yelling at her to drive away. She eventually did so reluctantly because the victim “was out there.”

As Ana and Weezey drove away, Weezey kept saying “it was Troy.” Hearing the name “Troy” made Ana think of defendant, because she had seen him two weeks earlier in the same area. Several blocks away from the shooting scene Ana and Weezey saw the victim’s brother, Maurice, on the street. Weezey continued to yell at Maurice that the victim just got shot and Troy did it. Maurice got in his car and drove to the shooting site. Ana and Weezey followed, and when they reached the site, Maurice was standing over the victim, who was lying on the curb. Ana did not see Pua or Dodie anywhere around.

Ana did not tell the police who first responded to the shooting scene that she had been present when the victim was shot because she was scared and did not want to get involved by being placed at the scene. Instead, she told them that she was driving down Bancroft Avenue, approaching 50th Avenue, when she heard gunshots. She then turned onto 50th Avenue, and two cars drove past her. She acknowledged at trial that these statements were lies, which she gave to avoid having to testify.

The responding homicide investigator, Sergeant Robert Nolan, arranged for Ana and Weezey to be taken from the scene to the police station interview room. Ana spoke to Sergeant Nolan at the station. According to Ana, he made no threats, but he told her she would not be able to leave until she told him what happened. She then told him that she was present when the victim was shot and described what she saw. She told him what she had seen because it was the truth, not because she thought it was what he wanted to hear. Her recorded statement taken by Sergeant Nolan approximately seven hours after the shooting was read to the jury. Her description of the shooting was essentially consistent with her preliminary hearing testimony and with her trial testimony.

Approximately a week after the shooting Ana was sitting at her desk at the real estate company where she worked when defendant drove by the office. He nodded his head at her. She was scared because, although she had not seen him shoot the victim, she thought that he was after her because of what she knew.

Also about a week following the shooting, Ana, accompanied by Weezey and another friend, was driving away from the candlelight vigil they had attended for the victim. As she pulled away from a stop sign, she noticed that the car behind her had run the stop sign and did not have its headlights on. She could not see the driver. The car chased her at high speed for several blocks, but it went in another direction when she turned onto the block of 50th Avenue where the victim had been shot.

When Ana came out to her car on the morning she was scheduled to testify at the preliminary hearing, the car’s tires had been slashed and its windows broken.

2. Luisa Mapapalangi

Luisa Mapapalangi, called Weezey, had known the victim for about 10 years. She also knew appellant. Her testimony regarding the events preceding the shooting largely corroborated Ana’s testimony. However, unlike Ana, she testified that she saw appellant walk toward the group socializing on 50th Avenue, saw him look at the victim, and heard him say to the victim, “‘What now you bitch ass nigga?’” She did not remember whether the victim responded, but she then saw appellant shoot the victim, saw the victim hit the ground after the first shot, and saw appellant walk over to him. She then turned away but heard more shots before she and Ana drove off.

At the police station, Weezey told the first police officer with whom she spoke that she was not present at the shooting because she did not want “to be a part of it.” Later the same day she told Sergeant Nolan that she was present and saw appellant shoot the victim “because I knew what happened.” She also identified appellant in a photo lineup. Her preliminary hearing and trial testimony were consistent with her statement to Sergeant Nolan.

3. Naipua Togia

Naipua Togia, called Pua, had known the victim and appellant for approximately five years. She and appellant had had an intimate relationship.

In the early morning of April 10, 2002, Pua was “hanging out” on 50th Avenue on her bicycle near the victim, who was socializing with Ana and Weezey. Appellant walked by her; he was carrying a gun. She heard him say to the victim something like “‘Caught your bitch ass out here slipp’n.’” She heard the victim reply, “‘Don’t kill me,’” and then saw appellant shoot the victim. She dropped her bike and ran away toward her house on 51st Avenue and Bancroft after the second shot. Appellant caught up with her on Bancroft and told her she “was lucky that he had love for [her] because he would have killed [her] too.” He added that he would have killed her sister Weezey. His warning kept her from going to the police immediately. Four months later she decided to speak to Sergeant Nolan about what she had witnessed because she felt bad that Weezey “had to go through this all by herself and I was there,” i.e., at the shooting scene.

Admissions

1. Jamall Baker

Jamall Baker first met appellant in the summer of 2002 when they were both incarcerated at Santa Rita jail. Their conversations began when appellant saw the photograph of Baker’s wife which Baker kept in his cell; appellant recognized her as a cousin of a cousin. Soon after appellant’s arrival, he told Baker that he had been arrested for murder. During a recreation period, he showed Baker a newspaper article that contained pictures of all individuals killed in Oakland during the previous year. Appellant pointed to the picture of the victim and told Baker, “‘This is the dude I killed right here.’” Appellant also explained the reason for the killing: After appellant’s uncle, “Tiger,” had been killed by a gun supplied by “Fat Rick,” Tiger’s older brother (also appellant’s uncle), “Ant” Livingston, put out a contract on Fat Rick and Fat Rick’s two younger brothers, the victim and Maurice.^[2] Appellant further explained to Baker that he decided to take the contract.

Appellant gave the following description of the April 10 shooting to Baker: Appellant and his younger brother were “driving around” and saw the victim and Weezey sitting in a car. He “caught them slipp’n, they were slipp’n then.” Appellant parked, leaving his younger brother in the car. He “bounced in the cut and bounced out of the cut,”^[3] “got up on the car [presumably Ana’s car],” and “gave [the victim] five of them like the soul stripper that he was, shot him five times, or something like that.” Appellant would have shot Weezey as well, had he not run out of bullets. He went to Las Vegas after giving the gun to his little brother.

Appellant told Baker that “soul stripper” was a gang that he belonged to. It referred to taking “somebody’s soul, to kill them, strip them of their soul.”

Appellant told Baker he planned to defend himself in the instant case by having his sister, who lived in Sacramento, testify that he was in Sacramento at the time of the shooting. He planned to have his mother testify likewise.

After Baker told appellant that he was “probably going to get out of jail,” appellant asked him “to get some information to [appellant’s] cousins in regard to a witness that was on his case.” He explained to Baker that he wanted “to have that witness dealt with, he wanted to have her killed,” because if he could have her killed, he “could beat” his case. Appellant gave Baker a letter to deliver to a cousin, a man Baker knew. He showed Baker the letter, which contained a non-English message at the bottom. Appellant told Baker the message was in Swahili and meant “‘Kill them bitches now.’” The letter also had appellant’s Swahili name, Anatae Amarie Shabezz.^[4]

Just before Baker was released, appellant gave him another letter. It was addressed to Baker and said, inter alia: “‘Don’t forget what we talked about.’” Baker understood this as a reference to the witnesses and to Baker’s getting the information to appellant’s cousin to have those witnesses assassinated.

At trial Baker did not remember telling appellant that he personally would not get the information about the witnesses to appellant’s cousin. He did remember that he made clear to appellant that he would not ask his wife to convey the information.

While in jail Baker contacted the Oakland Police Department to convey the information appellant had given him. Sergeant Nolan showed him a photo lineup; he identified appellant as the inmate with whom he spoke.

2. Nikeya Carter

On or about June 28, 2002, following appellant’s arrest for the instant shooting, Nikeya Carter was arrested on charges of drug possession. Sergeant Nolan interviewed her after she volunteered to the police that she had information about the instant shooting.

a. Interview

A portion of Carter’s interview with Sergeant Nolan was played for the jury. She made the following statements during the interview: She was crying “so hard” because she was “so scared” that “Anote” or “Troy” would do something to her if he learned she had talked to the police. “Troy” was six feet four or five inches tall and 180-200 pounds, with “tattoos of bullets [on his forearms], of all the murders he said he did.” He told her “‘This is where you’ll be at if you talk to anybody. . . . You’ll be another bullet. You and your baby.’”

b. Trial testimony

Sergeant Nolan testified that Carter appeared very nervous and upset when he interviewed her, but she did not appear intoxicated or under the influence of any narcotic. She appeared to understand his questions, and he understood her answers. Prior to the interview Sergeant Nolan had seen tattoos of bullets on appellant’s arm. During the interview Carter told Sergeant Nolan that appellant showed her the gun he used in the shooting; she described it as a small to medium silver-colored automatic pistol with a white handle. She also told Sergeant Nolan that she had asked to speak to him specifically because she wanted him to help her with her narcotics charges. He told her he would try to have the charges dropped, and he was able to do so.

Carter testified that she talked to the police only because they told her that they would “let [her] go” if she did so; she did not believe they would take her seriously because she was under the influence of drugs and alcohol. She acknowledged crying throughout the interview with the police. She also acknowledged that she told the police that a person named “Troy” or “Anante” told her he had murdered someone.

Carter further testified that in April 2002 appellant told her he “shot somebody;” that he showed her the chrome gun with a white handle that he used; and that he had threatened harm if she repeated what he told her to anyone.

Carter also testified that she told the police that appellant showed her the bullet tattoos on his arm, but she did not remember telling the police that appellant told her the bullets stood for people he killed or that she would be the next bullet if she repeated anything he told her about the shooting to anyone.

Curry Shooting

Timothy Curry was standing on 51st Avenue on February 2, 2002, at approximately 8:45 p.m., drinking a soda and eating a snack, when appellant approached him, saying “Come here. Check it out.” He knew appellant; their previous conversations had generally been about fixing appellant’s car. All of a sudden, according to Curry, “all hell broke loose.” Appellant had a gun, and ordered Curry to depart. Curry took a few steps, and appellant shot him several times. He lost consciousness after the fourth shot.

The morning after the instant April 10, 2002 shooting, a fellow officer told Sergeant Nolan that, according to the rumor on the street, appellant was responsible for the Curry shooting, although Curry himself had not identified his assailant. Sergeant Nolan ascertained through ballistics tests that the casings in the Curry shooting and the casings in the instant shooting were from the same gun.

Officer Jones’s Pursuit of Appellant

On April 13, 2002, three days after the instant shooting, Oakland Police Officer Tony Jones, in uniform, made a traffic stop of a four door grey Buick. As he walked toward the driver’s window, a person riding a scooter on the sidewalk pulled up to the car’s passenger window and told the car’s occupant(s), “‘Hey, it’s T. Jones.’” Officer Jones knew that the people in the neighborhood referred to him as T. Jones. The driver stuck his head out the driver’s side window, looked at Officer Jones, and then drove off. Officer Jones recognized the driver as appellant and knew a warrant had issued for the appellant’s arrest for the instant shooting. Officer Jones gave chase, but his police car was struck by another car and he was unable to continue his pursuit.

Sergeant Joyner’s Pursuit of Appellant

On April 25, 2002, Oakland Police Sergeant Ersie Joyner saw appellant driving a grey Buick very similar to the one she knew Officer Jones had recently pursued. Sergeant Joyner also knew that appellant was wanted for murder. When appellant saw Sergeant Joyner and her police car, he made an abrupt turn, and a high speed chase ensued. Appellant abandoned his car when it struck a fire hydrant and fence, and he escaped on foot.

Arrest

Sergeant Nolan entered the arrest warrant for appellant on a nationwide computer system. On June 23, 2002, he learned that appellant was in custody in Las Vegas. Appellant was returned to Oakland to face charges. Sergeant Nolan described appellant at the time as very wiry and athletic looking. Appellant’s booking photograph identified him as six feet, five inches tall.

DISCUSSION

I. CALJIC No. 3.20

Appellant contends he received ineffective assistance of counsel because his attorney did not request CALJIC No. 3.20, in light of Jamall Baker’s testimony. CALJIC No. 3.20 addresses the testimony of in-custody witnesses.

a. Standard of Review

Ineffective assistance of counsel requires the defendant to demonstrate that (1) counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms, and (2) it is reasonably probable that but for counsel’s deficient representation, the defendant would have obtained a more favorable result. (In re Wilson (1992) 3 Cal.4th 945, 950.)

b. Jamall Baker’s History

At the June 2004 trial Baker gave the following testimony regarding his criminal history and history as an informant:

In 1998 Baker was convicted of first degree burglary and sentenced to a four-year prison term (the 1998 burglary). He was released from prison in 2000 after serving 25 months of the sentence.

Baker was arrested in May 2001 for a parole violation and was returned to prison for eight months. In November 2001, while still in custody he contacted the Oakland Police Department to report information he had received from his younger brother concerning a homicide. He passed along the information because the victim was a friend and because he did not want his brother “wrapped up in what was going on.” He may have offered the information to help himself, but “it really wouldn’t have made that much of a difference” because he “was at the end of [his incarceration] time.” After he provided the information, the officer told him that the police could do nothing to assist him.

On June 21, 2002, Baker was arrested and placed at Santa Rita jail for another first degree burglary and for a parole violation (the 2002 burglary). At Santa Rita he became friendly with his next door cellmate, David Ganong. Ganong told Baker that he was in jail for killing a child. Baker decided to pass this information along to the Hayward Police Department because he had children of his own and because he thought doing so might assist his own case. The officer to whom he gave the information about Ganong said he would be able to assist Baker.

Later in the summer of 2002 Baker met appellant at Santa Rita. Baker contacted the Oakland Police Department to pass along appellant’s information about the instant shooting because he thought doing so might help his own case. Baker knew that he was facing a year’s incarceration for the parole violation and two, four, or six years for the burglary charge. Because the Oakland Police Department was slow in coming to talk to him, he asked Detective Coffee of the Hayward Police Department, who was his contact in the Ganong matter, to call the Oakland police officer in charge of the instant case and tell the officer that he (Baker) “had a hit that was supposed to go out on a witness that I intercepted and I wanted to forward it to them.” Baker was referring to the letter appellant had asked him to deliver to appellant’s cousin.

Before a representative from the Oakland Police Department came to see Baker, he telephoned the District Attorney’s office and relayed the information that he had a letter “which was a hit, for some witnesses [to the instant shooting] to be hit. . . .” He did not tell the employee in the District Attorney’s office the names of the witnesses because he wanted to be sure the police would come out to speak to him.

In August 2002 Baker spoke to Sergeant Nolan about what Nolan might be able to do on Baker’s behalf if Baker provided information. Baker had a few months of incarceration remaining on his parole violation, and he wanted the time reduced to 30 days. Nolan told him that he would not make any promises, and it would be “against the law” for him to do so. When Baker met with Nolan, he gave Nolan a note containing some of the information he had received from appellant. Baker subsequently wrote a letter for Nolan to sign and send to the Board of Prison Terms to seek a reduction of his incarceration. He composed the letter for Nolan because he understood Nolan was very busy investigating homicides. The letter referred to Baker having assisted in saving the life of two potential witnesses, which justified a 30 day reduction in his incarceration period.

Pursuant to a negotiated plea Baker was released from Santa Rita on February 2, 2003. He “got nine months” for the first degree burglary, which was an offer from the Board of Prison Terms unrelated to the information he provided the Oakland Police Department about the instant case. He “got another two months” for a charge of possession of drug paraphernalia. The Board of Prison Terms reduced Baker’s time for the parole violation to 11 months. Baker did not believe the reduction was due to any efforts by Sergeant Nolan. Because of the information he gave the Hayward police regarding the Ganong matter, he was placed on five years felony probation. He believed it was “a good deal” and he was very lucky not to have been sent back to prison.

Following his release from Santa Rita he saw a poster identifying him as an informant on a telephone pole near his grandmother’s house. “Individuals” with guns also came to his house, and his wife received a telephone call saying that Baker should not testify at the instant trial.

In October 2003, Baker sent two letters to an Oakland police sergeant saying he had information about a 1993 and a 1996 homicide. He was not contacted about this information.

At the instant June 2004 trial, he had been incarcerated since January 2004 for “absconding,” i.e., failing to report to his parole agent. He explained that he had to leave home because members of appellant’s family came to his house with guns and also “caught” him and his wife as they came out of a store, but his parole agent would not give him a pass to leave.

During his present incarceration a fellow inmate offered to pay Baker and his younger brother $1,500 if Baker’s younger brother, who was a witness to the inmate’s offense, would testify falsely for the inmate. Baker provided this information to the police, who did not use it, as well as to the inmate’s attorney.

Baker has a psychiatric history. In June 2002, while he was at Santa Rita, he was receiving psychiatric counseling and was being given Ephedra, a mood stabilizer, for depression. The medication had no negative effect on his memory. In October 2002 he was placed in a locked psychiatric facility. He “fak[ed]” his mental illness because the hospital was more comfortable than jail. In November 2002 he attempted suicide because he was depressed and frustrated. His condition was unrelated to the information he received from appellant about the shooting. He was subsequently given other antidepressants. He has not since attempted suicide, and he was not on any medication as of the instant trial.

Baker did not want to testify at the instant trial because of the threats to his wife, but he wanted to bring closure to the matter. The district attorney had made no promises to him in the instant case with regard to his present custodial time. He was due to be released from custody shortly. His present testimony had no effect on his release date. Since he was first in custody in 1998 he had provided information on “quite a few” occasions to four police or criminal justice agencies. Other than the Hayward case, he did not receive any advantage in his cases because of information he provided to the agencies.

Sergeant Nolan testified that after he interviewed Baker in August 2002, he contacted Baker’s parole officer by telephone and letter. He informed the agent that Baker had given the police department information in a homicide case which should be taken into consideration in evaluating Baker’s parole revocation status. Specifically, he recommended reducing the punishment for his parole violation. As Sergeant Nolan explained, criminals do not typically give the police information out of altruism; they are motivated to do so out of self-interest. Sergeant Nolan wants criminal defendants to know that if they assist in a serious case, particularly a murder case, they will get something in the way of a deal for their more minor offenses.

c. Penal Code section 1127a, CALJIC No. 3.20

Penal Code section 1127a, subdivision (b) states: “In any criminal trial or proceeding in which an in-custody informant testifies as a witness, upon the request of a party, the court shall instruct the jury as follows:

‘The testimony of an in-custody informant should be viewed with caution and close scrutiny. In evaluating such testimony, you should consider the extent to which it may have been influenced by the receipt of, or expectation of, any benefits from the party calling that witness. This does not mean that you may arbitrarily disregard such testimony, but you should give it the weight to which you find it to be entitled in the light of all the evidence in the case.’”

CALJIC No. 3.20 sets forth a direct quote of this statute. The court does not have a sua sponte obligation to give CALJIC No. 3.20. or its equivalent. (People v. Horning (2004) 34 Cal.4th 871, 909.)

Defense counsel’s proposed instructions of June 26, 2004 did not include CALJIC No. 3.20, although she stated she would be submitting a “Cautionary Instruction Regarding Jail House Informant” as special instruction number two. On July 1, 2004, the day after the parties rested, counsel and the court met “all day” (9:50 a.m.-3:25 p.m.) in chambers to discuss instructions. When the court invited counsel to place on the record any issues regarding the instructions, defense counsel made no reference to instructing on the effect of in-custody informant testimony. The instructions given did not include CALJIC No. 3.20 or any comparable instruction.

d. Analysis

When, in regard to a claim on appeal of ineffective assistance of counsel, the record sheds no light on why defense counsel failed to act in the manner challenged on appeal, the claim on appeal must be rejected unless counsel was asked for an explanation at trial and did not provide one, or unless there could simply be no satisfactory explanation for the failure. (People v. Wilson, supra, 3 Cal.4th at p. 936.)

Contrary to appellant’s argument that there was no conceivable reason for not requesting CALJIC No. 3.20 , defense counsel could have concluded that it would not necessarily benefit appellant. As People v. Horning, supra, 34 Cal.3d at page 909 observes, while this instruction tells the jury to view the testimony of an in-custody inmate “with caution and close scrutiny,” it also specifically directs the jury’s attention to the extent to which the witness might have received or expected any benefit from the party calling him. Here, there was no evidence that Baker anticipated receiving any real benefit from relaying the information about appellant. Although he hoped that Sergeant Nolan might speak favorably on his behalf to the Parole Board so that his incarceration for his parole violation would be reduced, he acknowledged that there was only a short time remaining on his parole violation punishment. The real benefit Baker received--a nine-month sentence and five-year parole for his first degree burglary charge--was the result of passing along the information about cellmate Ganong and the offense in Hayward, not the result from passing along the information on the instant offense. Thus, defense counsel may not have wanted to focus the jury’s attention on the absence of any significant evidence of real or expected benefits to Baker.

Even assuming there was no plausible tactical reason for not requesting CALJIC No. 3.20 or a comparable instruction, appellant has not met his burden of demonstrating prejudice from the omission. First, even without Baker’s testimony, the evidence against appellant was strong. Two eyewitnesses, Weezey and Pua, saw appellant shoot the victim, and their description was corroborated by the physical evidence of the shooting. A third witness, Ana, did not recognize the assailant, but her physical description of him, tall and slender, accorded with Nikeya Carter and Sergeant Nolan’s descriptions, and she heard her passenger, Weezey, yelling repeatedly “it was Troy” as they drove away from the shooting site. Nikeya Carter’s statements to Sergeant Nolan and her testimony were consistent with the shooting, e.g., it occurred in April, appellant shot the victim in the face, he used a semiautomatic handgun. Within two weeks after the shooting appellant twice fled by car from local police officers who were pursuing him, and he then fled to Las Vegas. As the jury was instructed, consciousness of guilt may be inferred from flight. Tim Curry identified appellant as his assailant, and ballistics tests showed that the same gun was used in the Curry shooting and the instant shooting. In fact, as Sergeant Nolan testified, the information Baker provided was not helpful other than to corroborate what the police already knew.

Second, Baker’s testimony was corroborated indirectly by other witnesses. The Swahili name appellant used with Carter (Anote) was nearly identical to the Swahili name he used in the letter he gave Baker (Anatae). Pua testified that she heard appellant say to the victim something like “‘Caught your bitch ass out here slipp’n.’” Baker testified that appellant told him that he caught the victim and Weezey “‘slipp’n.’” Baker knew the name “Weezey,” although Sergeant Nolan had not distributed the names of any witnesses when he spoke to Baker.

Third, the jury was given CALJIC No. 2.20, which instructs the jury how to determine the believability of a witness. It enumerates as a relevant factor the “existence or nonexistence of a bias, interest, or other motive” of the witness. While not so specific as CALJIC No. 3.20 regarding the testimony of in-custody witnesses, it alerts the jury to be aware of why a witness might be giving particular testimony.

Finally, defense counsel frequently challenged Baker’s credibility. She noted in her opening statement that he was an informant who had one first degree burglary conviction, was on parole and “obviously has a motive to want to help himself out when he picks up another first degree [arrest]. Why not?” She cross-examined him at length on his criminal history and purposes for being an informant. She argued extensively in closing that the jury should doubt Baker’s credibility, beginning by stating: “Let’s save the best [for] last, Jamall Baker.” She pointed to the inconsistent details between the statement he gave to an investigator from the district attorney’s office on August 5, 2002 and the known facts of the shooting and Baker’s trial testimony. She emphasized that Baker and appellant, given the jail intake records, actually would have had minimal opportunity for contact. She noted that there was no evidence that appellant actually wrote the two notes that Baker said he received in his jail cell. She characterized Baker as a “professional jailhouse informant,” and argued the jury “must look with great circumspect” at anything he said, given his admissions that he had been a “snitch 10-15 times,” since his first arrest in 1998.

Given the abundant inculpatory evidence, the other instructions, and defense counsel’s emphasis on distrusting the word of an in-custody informant, we conclude appellant was not prejudiced because the jury was not instructed with CALJIC No. 3.20.

II. CALJIC No. 2.60

Appellant contends he received ineffective assistance of counsel because his attorney did not request CALJIC No. 2.60, which states: “A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.”

His attorney did request, and the court gave, CALJIC No. 2.61, which states: “In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. No lack of testimony on defendant’s part will make up for a failure of proof by the People so as to support a finding against him on any essential element.”

Appellant argues that while there may be a tactical reason to forego both CALJIC Nos. 2.60 and 2.61, in order to avoid emphasizing that the defendant did not testify, there is no equivalent tactical reason to give CALJIC No. 2.61 only. He also argues that CALJIC No. 2.60 contains three principles that do not appear in CALJIC No. 2.61: (1) the jury can “draw no inference” from defendant’s decision not to testify; (2) the jury cannot discuss defendant’s decision not to testify; and (3) the jury may not permit the defendant’s decision not to testify to enter its deliberations.

We conclude defense counsel’s representation was not deficient for not requesting CALJIC 2.60. As appellant recognizes, avoiding drawing attention to the fact that the defendant has not testified is not an unreasonable defense tactic. Multiple instructions that concern a defendant’s decision not to testify countervene this tactic.

In any case, the court effectively gave CALJIC No. 2.60 at the outset of trial during voir dire. In questioning a potential juror, defense counsel referred to appellant’s right to say nothing and to the prosecution’s obligation to prove the case beyond a reasonable doubt, and asked the potential juror what effect appellant’s not testifying would have on his ability to be fair. When the potential juror responded, “I guess if he’s innocent, I think he should testify,” the court stated: “Let me interrupt here and explain to all the jurors, which I may not have done, that the legal instruction and concept here is correct, and, that is, that in any criminal case, a Defendant may testify like anybody else or may choose not to testify, and if the Defendant chooses not to testify in the case, then the jurors are required not to hold that against him. The Defendant has an absolute right not to testify and you may not hold that against the Defendant in evaluating all the facts that are before you.”

Furthermore, the precepts of CALJIC 2.60 were present in other instructions. The jury was instructed that it was obligated to determine what facts were proved only from the evidence received at trial and to accept the law as the court stated it. It was instructed that it could not independently investigate facts as to which there was no evidence and could not consider or discuss facts as to which there was no evidence. It was instructed that inferences could be drawn only from facts established by the evidence, and that evidence consisted of anything presented to the senses and offered to prove the existence or nonexistence of a fact. Collectively, these instructions inform the jury that it could not draw any inferences from the defendant’s not testifying because “not testifying” does not, by definition, constitute evidence.

In any case, even if defense counsel was arguably derelict for not requesting CALJIC No. 2.60, appellant has not demonstrated prejudice from the omission of this instruction. His implication that, without the instruction, the jurors were likely to have weighed his silence heavily against him, is speculative at best. We reiterate that the evidence against appellant was very strong. Given the strength of this evidence, the instructions governing the definition of evidence and the restrictions on what the jury could consider, and the instruction and arguments that emphasized the People’s burden of proof beyond a reasonable doubt, it is not reasonably probable that appellant would have obtained a more favorable result had defense counsel requested and the court given CALJIC No. 2.60. (In re Wilson, supra, 3 Cal.4th at p. 950.)

DISPOSITION

The judgment is affirmed.

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Jones, P.J.

We concur:

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Simons, J.

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Gemello, J.

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^[1] A casing is the outside part of a bullet that has been fired through a gun; a slug is the inside part of a bullet that comes out of the gun barrel when the gun is fired. A live round is an unfired bullet.

^[2] The parties stipulated that the victim’s brother, Maurice, was killed in an automobile accident in January 2003.

^[3] Baker defined “cut” as a hiding place, such as a bush, a car, or a trash can.

^[4] The letter was admitted into evidence. It is not in the record on appeal, but defense counsel quoted it as saying “‘She in the 50’s on 51st and Bancroft or on 52nd and Wentworth, they’re the only place she can be.’” Sergeant Nolan testified that the letter said nothing about appellant’s suggesting that anybody be killed.