Filed 7/7/26 P. v. Rauda CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B331030
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA476023)
v.
ANTHONY RAUDA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Eleanor J. Hunter, Judge. Affirmed.
Elizabeth Richardson-Royer, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Noah P. Hill and Thomas C. Hsieh, Deputy
Attorneys General, for Plaintiff and Respondent.
________________________
INTRODUCTION
Anthony Rauda appeals from a judgment that sentences
him to 119 years to life in state prison for murder, attempted
murder, and commercial burglary. Rauda first contends the trial
court prejudicially erred when it denied his motion to set aside
the grand jury indictment on two attempted murder counts
because the grand jury was improperly instructed on the kill zone
theory. Rauda next argues a firearms expert’s testimony about
the ballistics testing and conclusions reached by a second
firearms expert violated the Confrontation Clause, and his trial
counsel performed ineffectively when he failed to object to the
testimony. Lastly, Rauda contends the trial court prejudicially
erred when it excluded third-party culpability evidence that
raised a reasonable doubt as to his guilt. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2018, a grand jury returned an indictment against
Rauda alleging he committed a series of shootings and burglaries
in Malibu from 2016 to 2018 as follows: first degree murder of
Tristan Beaudette (count 1); attempted murders of Beaudette’s
daughters (counts 2 and 3); attempted murder of Ian Kincaid
(count 4); attempted murders arising from shootings in the
Malibu area from 2016 to 2017 (counts 5 to 11); and second
degree commercial burglary of three Malibu businesses in 2018
(counts 12 to 16). The indictment also included firearm special
allegations.
2
A. Facts Underlying the Charged Offenses
Counts 1 to 3 of the indictment alleged one count of murder
of Beaudette and two counts of attempted murder of his two
daughters. At trial, the prosecution presented evidence that on
June 22, 2018, Tristan Beaudette and his brother-in-law Scott
McCurdy were camping with their young children at Malibu
Creek State Park. Beaudette slept in one tent with his two
daughters, and McCurdy slept in a separate tent with his two
sons. At approximately 4:30 a.m., McCurdy woke to several “loud
pops” and then heard one of Beaudette’s daughters crying. He
discovered Beaudette dead in his tent with a gunshot wound to
his head. A neighboring camper heard four to five gunshots and
called 911. Beaudette’s two daughters were in the tent and
survived the shooting.
The deputy medical examiner recovered a single bullet
from Beaudette’s body. Beaudette’s tent had three bullet holes,
one toward the bottom near Beaudette’s head and two holes that
were consistent with a single bullet entering and exiting the tent.
Deputies using metal detectors found five shell casings near
Beaudette’s tent and one spent bullet.
Counts 4 to 7 of the grand jury indictment charged Rauda
with attempted murder involving shooting at cars traveling along
Las Virgenes Road in the pre-dawn hours. The People presented
evidence of the shootings as follows.
In count 4, Rauda was alleged to have shot at Ian Kincaid
on June 18, 2018, at approximately 4:15 a.m. Kincaid was
driving his white Tesla north on Las Virgenes Road near a Hindu
temple when he heard four successive clicking noises. The car
alerted Kincaid that the front hood latch had released. Kincaid
pulled over, closed the hood, and continued to his work at
3
Universal Studios. He did not notice anything was amiss because
it was still dark. Kincaid later noticed a hole in the hood of his
car. A firearms expert who was at Universal Studios to teach
actors how to use firearms safely told Kincaid he believed it was
a bullet hole.
Counts 5 and 6 alleged Rauda shot at Nicole Katz and her
friend while they were traveling south on Las Virgenes Road
near the Hindu temple on July 22, 2017, at approximately
4:30 a.m. in Katz’s white BMW. Count 7 alleged that on June 8,
2017, at approximately 4:30 a.m., Rauda shot at Thomas
Marshall’s white Porsche on Las Virgenes Road near the Hindu
temple.
In counts 8 to 11, the indictment alleged Rauda shot at
several people who were camping overnight at the Malibu Creek
State Park campground where Beaudette was shot. Counts 8
and 9 alleged Rauda shot at Meliss Tatangelo and Frank Vargas
while they were asleep in the back of her SUV at the
campground. Count 10 alleged Rauda fired at Ronald Carson
while he was sleeping in his trailer at the campground on the
night of November 9, 2016. Count 11 alleged Rauda shot James
Rogers in the arm while he slept in a hammock in the
campground during the night of November 2, 2016.
Counts 12 to 16 alleged Rauda committed second-degree
commercial burglary of three Malibu businesses from July to
October 2018. Surveillance video from the businesses showed a
masked individual carrying a rifle breaking into the buildings
and leaving with food. Boot prints with a distinctive heel strike
pattern were found at the businesses.
4
B. Grand Jury Proceedings
Grand jury proceedings were held from October 15, 2019 to
October 21, 2019. Forty-seven prosecution witnesses testified,
and 204 exhibits were admitted into evidence. The People’s
theory was that the first series of shootings involved a homemade
shotgun, but that Rauda later obtained a Ruger 9mm rifle, and
he used the Ruger to carry out the final two shootings of Kincaid
and Beaudette. The prosecutor highlighted the similarities
between the shootings, including that they occurred along Las
Virgenes Road or at the Malibu Creek State Park campground;
that they occurred between 2:40 a.m. and 5:00 a.m.; and that
white luxury cars traveling on Las Virgenes Road were targeted.
The grand jury returned an indictment as described on
October 21, 2019. On January 3, 2020, Rauda filed a motion to
set aside the indictment.1 Relevant to this appeal, Rauda argued
the prosecution improperly relied on the kill zone theory as to
counts 2 and 3, which alleged the attempted murders of
Beaudette’s daughters. Rauda argued the evidence was
insufficient to support a kill zone theory of liability because the
evidence of the holes in the tent established only two bullets were
fired into a tent containing three people. Additionally, Rauda
argued the prosecutor misadvised the grand jury of the
requirements to indict him under a kill zone theory. The court
denied Rauda’s motion to set aside the indictment as to counts 2
and 3. The court later denied a motion for rehearing or
reconsideration on this issue.
1 The People’s request for judicial notice of the motion to set
aside the indictment is granted. (Cal. Rules of Court, rule
8.340(c).)
5
C. Trial
At trial, the People presented evidence as described above,
as well as evidence of Rauda’s arrest and the links between the
burglaries and the shootings. The People presented evidence
that police officers investigating the burglaries followed tracks
from one of the businesses with a scent dog and discovered Rauda
in a nearby ravine. Rauda was dressed in dark clothing and
carrying a backpack with a rifle sticking out of it. When officers
ordered Rauda to put his hands in the air, he yelled, “Fucking
shoot me. Fucking shoot me.” After Rauda complied and
dropped his backpack, the officers took him into custody. Rauda
wore boots that had the distinctive heel strike pattern found at
the Malibu businesses that were burgled. The officers later
discovered a permanent encampment hidden under a tree nearby
that contained a cooler, a tent, clothing, electronics, and cooking
supplies.
The People linked Rauda to the shootings in Malibu Creek
State Park campground and on Las Virgenes Road by presenting
evidence of ballistics testing, his internet search history, and the
location of his devices around the time of the offenses. When
Rauda was arrested, the officers recovered a rifle, 9 mm
ammunition, a cell phone, a laptop, electronic tablets, a jacket,
blue latex gloves, a wallet, and a piece of paper listing several
email addresses from his backpack. Location data placed
Rauda’s devices at Malibu Creek State Park around the time of
the shootings in counts 5 to 10.
Additionally, firearms expert Manual Munoz identified the
rifle in Rauda’s backpack as a Ruger 9 mm carbine. He
concluded the bullets that hit Kincaid’s Tesla and killed
Beaudette were fired from the Ruger. The ammunition recovered
6
by deputies from Rauda was by the same manufacturer as the
shell casings recovered from the area surrounding Beaudette’s
tent.
On June 4, 2018, two weeks before the Kincaid shooting,
Rauda’s internet searches included: “ ‘bullet hits gas car tank,’ ”
“ ‘ballistics, is it possible for a bullet to puncture a gas tank
without causing it to explode?’ ” and “ ‘nine-millimeter incendiary
bullets.’ ” On June 23, 2018, the day after the Beaudette killing,
Rauda searched for “ ‘Malibu Creek State Park’ ” and visited the
Los Angeles Times website to pull up a story about the shooting.
Rauda’s electronic devices revealed he viewed and searched for
information relating to firearms, munitions, burglary, and
eluding pursuit.
The prosecutor did not argue the attempted murders were
committed under a kill zone theory, and the jury was not
instructed on that theory.
The jury found Rauda guilty of: (1) second degree murder of
Beaudette as to count 1 (§ 187, subd. (a)), with findings that he
personally and intentionally discharged a firearm causing death
and personally used a firearm (§ 12022.53, subds. (b)-(d));
(2) attempted murder of Beaudette’s daughters as to counts 2
and 3 (§§ 187/664) with findings that he personally and
intentionally discharged a firearm causing death (§ 12022.53,
subd. (d)); (3) willful, deliberate, and premeditated attempted
murder of Kincaid as to count 4 (§§ 187/664) with findings that he
personally and intentionally discharged a firearm and personally
used a firearm (§ 12022.53, subds. (b), (c)); and (4) second degree
commercial burglary of the three Malibu businesses as to
counts 12 through 16 (§ 459) with findings as to counts 13 and 14
that he was personally armed with a firearm (§ 12022,
7
subd. (a)(1)). The jury found Rauda not guilty of the shootings in
2016 and 2017 as alleged in counts 5 through 11. The trial court
sentenced Rauda to a total term of 119 years to life in state
prison.
Rauda timely appealed.
DISCUSSION
A. Motion To Dismiss Indictment
Rauda contends the trial court prejudicially erred when it
denied his motion to set aside the grand jury indictment in
counts 2 and 3 for the attempted murder of Beaudette’s
daughters. According to Rauda, the prosecution’s use of the kill
zone theory was legally and factually inaccurate because “[t]here
is no evidence whatsoever that Appellant had in mind a ‘primary
target’ in shooting at the Beaudette’s tent. There is no evidence
that he knew the identities of the people inside the tent, or
indeed how many people were inside it.” Rauda argues, “if a
defendant fires indiscriminately, intending to kill everyone in the
path of his bullets without a distinguishable primary target, the
kill zone theory of liability is inapplicable.”
1. Standard of Review
“[I]t is the grand jury’s function to determine whether
probable cause exists to accuse a defendant of a particular crime.”
(Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026
(Cummiskey).) The standard of proof required for an indictment
is sufficient cause, which, like probable cause, only requires
evidence that, when unexplained or uncontradicted, creates a
strong suspicion of the guilt of the accused. (Id. at p. 1025.)
8
As a general rule, “the prosecution has no duty to instruct a
grand jury on the law in the same manner a trial judge must
instruct a petit jury.” (People v. Gnass (2002) 101 Cal.App.4th
1271, 1306 (Gnass).) “However, a claim of instructional error is a
cognizable basis for a motion to set aside an indictment under
Penal Code section 995, subdivision (a)(1)(B), in that it is
‘manifestly tantamount’ to a claim the grand jury, as instructed,
may have indicted the defendant on less than reasonable or
probable cause.” (Id. at pp. 1306–1307.)
On review of a motion to set aside a grand jury indictment,
we must decide de novo whether, drawing all reasonable
inferences in favor of the indictment, the evidence presented to
the grand jury was sufficient to support a “strong suspicion” the
defendant committed the charged crime. (Cummiskey, supra,
3 Cal.4th at p. 1029; People v. Pic’l (1982) 31 Cal.3d 731, 737;
Gnass, supra, 101 Cal.App.4th at pp. 1288–1289.) We “ ‘ “in
effect disregard[ ] the ruling of the superior court and directly
review[ ] the determination of the [grand jury] holding the
defendant to answer.” [Citations.] Insofar as the . . . section 995
motion rests on issues of statutory interpretation, our review is
de novo. [Citation.] Insofar as it rests on consideration of the
evidence adduced, we must draw all reasonable inferences in
favor of the [indictment] [citations] and decide whether there is
probable cause to hold the defendants to answer, i.e., whether the
evidence is such that “a reasonable person could harbor a strong
suspicion of the defendant’s guilt[.]” ’ ” (People v. Johnson (2012)
209 Cal.App.4th 800, 808 quoting Lexin v. Superior Court (2010)
47 Cal.4th 1050, 1072.) A defendant challenging errors occurring
before the grand jury “must show the ‘alleged errors before the
grand jury deprived him of a fair trial or otherwise resulted in
9
any actual prejudice relating to his conviction’ ” before reversal
on the ground of such irregularity is warranted. (People v.
Jablonski (2006) 37 Cal.4th 774, 800 (Jablonski).)
2. Kill Zone Theory
“To prove the crime of attempted murder, the prosecution
must establish ‘the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended
killing.’ ” (People v. Canizales (2019) 7 Cal.5th 591, 602
(Canizales).) The kill zone is a “theory for establishing the
specific intent to kill required for conviction of attempted
murder.” (Id. at p. 607.) Under the theory, “a defendant may be
convicted of the attempted murder of an individual who was not
the defendant’s primary target.” (Id. at p. 596.) “The kill zone
theory is one of concurrent intent—the defendant has the intent
to kill a particular target, and the jury can infer from the method
employed to attempt killing the primary target a concurrent
intent to kill those around the primary target to ensure the
primary target’s death.” (People v. Medina (2019) 33 Cal.App.5th
146, 154–155 (Medina); see People v. Mumin (2023) 15 Cal.5th
176, 193 (Mumin) [“a kill zone is an area which a defendant
intentionally creates in order to kill all those within it to ensure
the primary target’s death”]; People v. Bland (2002) 28 Cal.4th
313, 330 (Bland).) The kill zone theory thus pertains to
circumstances in which a jury may infer an intent to kill, but it
does not dispose of the requirement that the jury find an intent to
kill and instead allows the jury to impute malice. (Medina,
supra, 33 Cal.App.5th at p. 155.) The kill zone theory “is not a
legal doctrine requiring special jury instructions” but rather “is
10
simply a reasonable inference the jury may draw in a given case.”
(Bland, supra, 28 Cal.4th at p. 331, fn. 6.)
B. Rauda Has Failed To Demonstrate He Was Prejudiced By
the Kill Zone Instruction Because the Evidence Presented to
the Grand Jury Was Sufficient To Support a “Strong
Suspicion” Rauda Committed Attempted Murder Under a
Theory of Express Malice
Rauda contends the kill zone theory is inapplicable in this
case because there was no evidence of a primary target. Even
assuming Rauda is correct that the grand jury was improperly
given a kill zone instruction, however, Rauda has failed to
demonstrate prejudice.2 This is because the grand jury was also
instructed on express malice, and the evidence presented to the
grand jury was sufficient to support a “strong suspicion” Rauda
committed attempted murder under a theory of express malice.
People v. Stone (2009) 46 Cal.4th 131, 136–138 (Stone) is
instructive. In Stone, the defendant fired a single shot from 10 to
15 feet away at a group of approximately 10 people. The
information alleged one count of the attempted murder of Joel F.,
one of the 10 individuals in the group. The evidence established,
however, that the defendant did not fire the gun at any particular
2 Rauda contends reversal is required because the error was
not harmless beyond a reasonable doubt. (People v. Mumin
(2023) 15 Cal.5th 176, 207; see Chapman v. California (1967)
386 U.S. 18.) The People contend the appropriate standard for
prejudice in this case is whether “it is reasonably probable that a
result more favorable to the appealing party would have been
reached in the absence of the error.” (People v. Watson (1956)
46 Cal.2d 818, 836.) For reasons we explain below, the error is
harmless under either standard.
11
person, but rather, at the group. The prosecutor conceded at trial
that “he had not proven that defendant intended specifically to
kill Joel F. rather than someone in the group of 10 persons.” (Id.
at p. 139.)
Stone held the kill zone theory did not apply because the
evidence demonstrated the defendant intended to kill “someone”
in the crowd, but did not specifically intend to kill Joel F. Thus,
there was no primary target from which a kill zone could extend.
(Stone, supra, 46 Cal.4th at p. 139.) Stone found these facts
nevertheless supported an attempted murder conviction because:
“An indiscriminate would-be killer is just as culpable as one who
targets a specific person. . . . [A] terrorist who simply wants to
kill as many people as possible, and does not know or care who
the victims will be, can be just as guilty of attempted murder.”
(Id. at pp. 140–141; accord, Medina, supra, 33 Cal.App.5th at
p. 156 [“A jury can reasonably conclude a defendant without a
primary target who repeatedly shoots into a crowd with the
intent to kill committed multiple counts of attempted murder”];
People v. McCloud (2012) 211 Cal.App.4th 788, 798–799 [“the
discussion in Stone makes clear that . . . a defendant can be
convicted of several attempted murders if he intended to kill
several people, even if there were no particular people he
intended to kill”].)
Under the circumstances presented, any error in
instructing the grand jury on the kill zone theory was harmless
under Watson and harmless beyond a reasonable doubt under
Chapman because both attempted murder theories on which the
grand jury was instructed required a finding of intent to kill. In
describing the crime of murder, the grand jury was instructed
that “ ‘Malice’ may be either express or implied. Malice is
12
express when there is manifested an intention unlawfully to kill
a human being.” It was then instructed that, “[i]n order to prove
attempted murder, each of the following elements must be
proved: . . . [¶] . . . A direct but ineffectual act was done by one
person towards killing another human being; and, [¶] the person
committing the act harbored express malice aforethought;
namely a specific intent to kill unlawfully another human being.”
The grand jury was also instructed on the kill zone theory but it
was advised that, “If 14 or more grand jurors do not believe that
[Rauda] intended to kill [Beaudette’s daughters] or intended to
kill Tristan Beaudette [or his daughters] by killing everyone in
the zone of fatal harm, then you must not indict [Rauda] for the
attempted murder of [Beaudette’s daughters]. [Emphasis
added.]” These instructions informed the grand jury that it could
indict Rauda for attempted murder only if he harbored the intent
to kill.
As stated, “a claim of instructional error is a cognizable
basis for a motion to set aside an indictment under Penal Code
section 995, subdivision (a)(1)(B), in that it is ‘manifestly
tantamount’ to a claim the grand jury, as instructed, may have
indicted the defendant on less than reasonable or probable
cause.” (Gnass, supra, 101 Cal.App.4th at pp. 1306–1307.) And
probable cause merely requires evidence that, when unexplained
or uncontradicted, creates a strong suspicion of the guilt of the
accused. (Cummiskey, supra, 3 Cal.4th at p. 1025.)
Accordingly, we review the grand jury indictment to
determine whether, drawing all reasonable inferences in favor of
the indictment, the evidence presented to the grand jury was
sufficient to support a “strong suspicion” the defendant
committed the charged crime of attempted murder. (Cummiskey,
13
supra, 3 Cal.4th at p. 1029.) Here, the neighboring camper
testified she heard four to five gunshots, and the deputies
recovered five shell casings near Beaudette’s tent. The evidence
that Rauda shot five times into or near a tent in a public
campground at 4 a.m., even if he did not know how many persons
or who specifically was inside the tent, is sufficient to support a
strong suspicion he committed attempted murder under an
express malice theory. The evidence presented to the grand jury
showed Rauda did not intend to kill a particular person; that is,
he “simply want[ed] to kill as many people as possible, and [did]
not know or care who the victims [were].” (Stone, supra,
46 Cal.4th at p. 140.) Indeed, the People stated to the grand jury
that the primary target could be Beaudette or one of his
daughters. That the grand jury was also instructed on the kill
zone theory does not require that Rauda’s indictment be set aside
because under both attempted murder theories the grand jury
was instructed it had to find Rauda had an intent to kill.
Rauda has failed to show the instruction on the kill zone
resulted in prejudice requiring reversal. (See Cummiskey, supra,
3 Cal.4th at p. 1029 [court must draw all reasonable inferences in
favor of the indictment]; Jablonski, supra, 37 Cal.4th at p. 800
[“defendant must show the ‘alleged errors before the grand jury
deprived him of a fair trial or otherwise resulted in any actual
prejudice relating to his conviction’ before reversal on the ground
of such irregularity is warranted”].)3
3 Under these circumstances, we need not address Rauda’s
argument that the prosecutor’s description of the kill zone theory
was legally erroneous during the People’s presentation to the
grand jury. The grand jury was instructed on the kill zone theory
14
C. Rauda Forfeited His Confrontation Clause Claim
Rauda next argues his right to confront the witnesses
against him under the state and federal constitutions was
violated when the People’s firearms expert, Los Angeles County
Sheriff’s Deputy Manuel Munoz, testified “at length” about the
ballistics testing and conclusions of another firearms expert,
Los Angeles County Sheriff’s Deputy John Vanderschaaf. Deputy
Vanderschaaf testified at trial, but on the topic of bullet
trajectories. Rauda relies on Smith v. Arizona (2024) 602 U.S.
779, 783 for the proposition that “a prosecutor cannot introduce
an absent laboratory analyst’s testimonial out-of-court
statements to prove the results of forensic testing.”
As Rauda acknowledges, his counsel failed to timely object
or move to strike Deputy Munoz’s testimony regarding Deputy
Vanderschaaf’s ballistics testing and conclusions. Rauda has
thus forfeited his confrontation clause claim. (See People v.
Saunders (1993) 5 Cal.4th 580, 589-590 [constitutional claims
forfeited absent timely objection in trial court]; see also People v.
Demetrulias (2006) 39 Cal.4th 1, 19-20 [“[w]e conclude defendant
forfeited the issue of the evidence’s admission by his failure to
make a timely objection on this ground”]; Evid. Code, § 353,
subd. (a) [verdict or finding shall not be reversed by reason of
erroneous admission of evidence unless “[t]here appears of record
an objection to or a motion to exclude or to strike the evidence
that was timely made”].)
by the legal advisor to the grand jury, and Rauda does not
contend the legal advisor’s instruction was inaccurate.
15
Any error arising from Deputy Munoz’s ballistics testimony
was harmless beyond a reasonable doubt because Deputy
Vanderschaaf did testify at Rauda’s trial. (See People v. Sanchez
(2016) 63 Cal.4th 665, 699.) Although Rauda had the opportunity
to question Deputy Vanderschaaf about his ballistics testing and
conclusions, Rauda did not do so. We are not persuaded by
Rauda’s argument that he could not have questioned Deputy
Vanderschaaf about the ballistics testing and his conclusions
because those topics were not addressed during Deputy
Vanderschaaf’s direct examination. (Evid. Code, § 773, subd. (a).)
Had defense counsel inquired, the court had discretion to allow
Rauda to question Deputy Vanderschaaf about these topics.
(Evid. Code, § 772, subd. (c) [“a party may, in the discretion of the
court, interrupt his cross-examination . . . of a witness, in order to
examine the witness upon a matter not within the scope of a
previous examination of the witness”].) Rauda concedes his
counsel could have “recall[ed] [Deputy Vanderschaaf] to cross-
examine him after Munoz’s testimony,” yet never sought to do so.
Rauda has thus also forfeited his confrontation clause claim by
failing to recall or question Deputy Vanderschaaf about his
ballistics testing and conclusions. (See People v. Saunders, supra,
5 Cal.4th at pp. 589–590.)
We reject Rauda’s claim he received ineffective assistance
of counsel because his trial counsel failed to object to Deputy
Munoz’s testimony and failed to recall Deputy Vanderschaaf. A
defendant claiming ineffective assistance of counsel in violation
of the Sixth Amendment must show not only that his counsel’s
performance fell below an objective standard of reasonableness
under prevailing professional norms, but also that it is
reasonably probable that, but for counsel’s failings, the result
16
would have been more favorable to the defendant. (Strickland v.
Washington (1984) 466 U.S. 668, 687, 694.) “ ‘The burden of
sustaining a charge of inadequate or ineffective representation is
upon the defendant. The proof . . . must be a demonstrable
reality and not a speculative matter.’ ” (People v. Karis (1988)
46 Cal.3d 612, 656.) There is a presumption the challenged
action “ ‘might be considered sound trial strategy’ ” under the
circumstances. (Strickland, at p. 689; accord, People v. Dennis
(1998) 17 Cal.4th 468, 541.)
On direct appeal, a conviction will be reversed for
ineffective assistance of counsel only when the record
demonstrates there could have been no rational tactical purpose
for counsel’s challenged act or omission. (People v. Lucas (1995)
12 Cal.4th 415, 442 [“[r]eviewing courts reverse convictions on
direct appeal on the ground of incompetence of counsel only if the
record on appeal demonstrates there could be no rational tactical
purpose for counsel’s omissions”]; People v. Mitcham (1992)
1 Cal.4th 1027, 1058 [“ ‘[i]f the record sheds no light on why
counsel acted or failed to act in the manner challenged, “unless
counsel was asked for an explanation and failed to provide one, or
unless there simply could be no satisfactory explanation”
[citation], the contention [that counsel provided ineffective
assistance] must be rejected’ ”].) “[T]he decision to object or not
object to the admission of evidence is inherently tactical, and a
failure to object will seldom establish ineffective assistance.”
(People v. Beasley (2003) 105 Cal.App.4th 1078, 1092; People v.
Ferraez (2003) 112 Cal.App.4th 925, 934–935.)
Here, Rauda’s counsel reasonably could have determined
he could more effectively cross-examine Deputy Munoz on the
ballistics topic than Deputy Vanderschaaf. Counsel could also
17
have determined testimony by Deputy Vanderschaaf on the
ballistics evidence was cumulative to Deputy Munoz’s and would
only strengthen the evidence against Rauda. Because the record
on appeal is devoid of affirmative evidence that defense counsel
had no conceivable tactical purpose for not objecting, Rauda’s
claim of ineffective assistance is more appropriately made in a
petition for habeas corpus. (See People v. Lopez (2008) 42 Cal.4th
960, 972; People v. Avena (1996) 13 Cal.4th 394, 419.)
D. The Trial Court Did Not Abuse Its Discretion When It
Excluded Evidence of the Post-arrest Shooting
Rauda argues the trial court prejudicially erred when it
excluded evidence that someone purportedly shot at a white
luxury vehicle in the Malibu area two weeks after he was
arrested. Rauda contends this was evidence of third-party
culpability that would have created a reasonable doubt of his
guilt, and its probative value was not substantially outweighed
by the danger of undue prejudice, of confusing the issues, or of
misleading the jury under Evidence Code section 352.
1. Relevant Proceedings
Before trial, the People moved to exclude, among other
things, evidence that “[Carly] Pointer reported [] she was shot at
while driving on Las Virgenes Canyon Road, somewhere in the
vicinity of the Hindu Temple, on October 28, 2018 at
approximately 12:40 p.m.” Pointer reported to the police she
heard a bang, believed it was a gunshot, looked to her right, and
observed a perfectly round hole a little smaller than the size of a
quarter in the passenger window. The window then shattered.
Pointer called 911 when she arrived at work and the police
18
investigated the incident. In the incident report, the
investigating officer “form[ed] the opinion that victim Poynter’s
vehicle had not been shot with a weapon, due to the fact that the
damage only occurred to the front passenger window. The vehicle
did not sustain any other damage from this incident. If the
vehicle had been shot with a firearm, victim Poynter would have
endured possible injuries or the bullet would have penetrated
other parts of the vehicle.”4
The People argued the evidence did not amount to third-
party culpability evidence because there was no identified third
party, and the police concluded Pointer’s car was not damaged by
a bullet. Further, the People highlighted the differences between
the shootings alleged in the indictment and the Pointer incident:
the incident involving Pointer occurred at 1 p.m., while the other
shootings occurred in the pre-dawn hours of 3 a.m. to 5 a.m.;
Pointer described the hole as the size of a diced cucumber or
smaller than a quarter; and the forensic evidence, unlike the
bullet holes found in the other cars, did not indicate the damage
was from a bullet.
The defense argued the evidence could raise a reasonable
doubt as to Rauda’s guilt because “it indicates that there’s . . . a
third party who committed the crimes, because it fits the same
m.o., if you will. I don’t have a name for that person, but the
conduct that took place matches exactly.” Defense counsel
observed the incident involving Pointer occurred two weeks after
Rauda was arrested on October 10, 2018, and counsel pointed to
the similarities of that incident to the other shootings in the
indictment: the shootings took place in the same area and from
4 Pointer’s name is spelled two different ways in the record.
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the same side of the street; they occurred within a few weeks of
one another; the shootings involved white luxury cars (Pointer
drove a white Audi, Kincaid drove a white Tesla, Marshall drove
a white Porsche, Katz drove a white BMW); the shooter
accurately hit moving cars, and the cars were shot with a
firearm. Counsel also argued Pointer stated her driver-side
window may have been down so, according to counsel, a bullet
could have traveled through one window and out the other.
Defense counsel argued there would be a “massive due process
problem if a similar act, in [a] similar area, similar time frame
was just hidden from the jury.”
After hearing argument by the parties over two days, the
trial court excluded evidence of the Pointer incident pursuant to
Evidence Code section 352 and because there was insufficient
evidence to establish that the damage to the car was caused by a
bullet. The court concluded that Rauda was “asking the jury to
speculate as to one of the main foundational things, that it
[Pointer’s car] was actually a shot.” The court explained, “The
reason the other counts are consistent with somebody concluding
that it was a shot is because there was physical evidence to
support that, with regard to the ballistics.”
2. Governing Law and Standard of Review
“ ‘A criminal defendant has a right to present evidence of
third party culpability if it is capable of raising a reasonable
doubt about his own guilt. The rule does “not require that any
evidence, however remote, must be admitted to show a third
party’s possible culpability. . . . [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
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defendant’s guilt: there must be direct or circumstantial evidence
linking the third person to the actual perpetration of the
crime.” ’ ” (People v. Panah (2005) 35 Cal.4th 395, 481.)
People v. Hall (1986) 41 Cal.3d 826, 829 (Hall) “reaffirm[ed]
the admissibility of any relevant evidence that raises a
reasonable doubt as to a defendant’s guilt, including evidence
tending to show that a party other than the defendant committed
the offense charged. Such evidence may be excluded only when
the court properly exercises its discretion under Evidence Code
section 352 to reject evidence that creates a substantial danger of
undue consumption of time or of prejudicing, confusing, or
misleading the jury.” Evidence Code section 352 permits “[t]he
court in its discretion [to] exclude evidence if its probative value
is substantially outweighed by the probability that its admission
will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”
“As with all evidentiary rulings, the exclusion of third party
evidence is reviewed for abuse of discretion.” (People v. Turner
(2020) 10 Cal.5th 786, 817.)5
5 Rauda contends his claim should be reviewed de novo
because it implicates his constitutional due process right to
present a complete defense. But, the application of Evidence
Code section 352 to evidence of third-party culpability does not
impair such a “[defendant’s] constitutional right to present a
defense. . . . the ordinary rules of evidence do not impermissibly
infringe [upon an] accused’s right to present a defense[, and]
[c]ourts retain[] a traditional and intrinsic power to exercise
discretion to control the admission of evidence in the interests of
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3. The Trial Court Did Not Abuse Its Discretion When It
Excluded Evidence of the Pointer Incident
Rauda contends the evidence that someone shot at
Pointer’s white Audi near the area of the other shootings could
raise a reasonable doubt as to the identity of the shooter and was
admissible under Hall, supra, 41 Cal.3d at page 833.
Additionally, Rauda argues the evidence should not have been
excluded under Evidence Code section 352.
In Hall, the Supreme Court held the trial court improperly
rejected the defendant’s offer of proof because it concluded the
defendant was required to make a preliminary showing of
“ ‘substantial probability’ ” that the third party actually
committed the crime. (Hall, supra, 41 Cal.3d at p. 833.) Hall
held the court’s proper inquiry was not substantial probability
but rather whether the evidence could raise a reasonable doubt
as to the defendant’s guilt, and if so, then courts are to assess
whether the evidence should be admitted under section 352.
(Ibid.) That was what the trial court did here. The court
determined the evidence relating to the Pointer incident could
not raise a reasonable doubt as to Rauda’s guilt because it was
speculative whether Pointer’s car was shot at all. The only
evidence that someone shot at Pointer’s car was Pointer’s
statement to the police that she heard a loud bang and thought it
was a gunshot; she then looked to her right and saw a hole in her
passenger window, which shattered the glass. The police
orderly procedure and the avoidance of prejudice.” (Hall, supra,
41 Cal.3d at p. 834.)
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investigation revealed no ballistic evidence of a bullet.
Under these facts, the trial court did not abuse its
discretion by excluding the evidence of Pointer’s incident.
“ ‘[A]n abuse of discretion arises if the trial court based its
decision on impermissible factors . . . or on an incorrect legal
standard.’ ” (People v. Gonzalez (2024) 103 Cal.App.5th 215, 225.)
Unlike in Hall, the trial court did not base its decision on
impermissible factors or an incorrect legal standard.
Rauda alternatively contends that evidence of the Pointer
incident should have been admitted under Evidence Code
section 352 because it was highly probative, would not have
required undue consumption of time, and did not create a
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury. Rauda points to the similarities between
the Pointer incident and the shootings at white luxury vehicles in
that area. He contends presentation of this evidence would not
have taken undue time, as it would likely have involved
testimony by only two or three witnesses (i.e., Pointer and the
investigating officers). Moreover, it would not have confused the
issues since “[i]t simply would have been evidence of another
similar potential shooting for the jury to consider.”
We need not reach the balancing test required by Evidence
Code section 352 because we have found the evidence does not
raise a reasonable doubt as to the defendant’s guilt. Hall, supra,
41 Cal.3d at page 833 sets out the sequence of the inquiry as
follows: “The court’s proper inquiry was limited to whether this
evidence could raise a reasonable doubt as to defendant’s guilt
and then applying section 352.” In all events, the trial court did
not abuse its discretion when it excluded this evidence under
Evidence Code section 352. The probative value of this evidence
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was minimal. As stated, it was speculative whether Pointer’s car
was shot at all. This evidence would thus have created a
substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.
Rauda also contends the trial court “improperly made
factual findings that should have been reserved for the jury,”
citing Hall, supra, 41 Cal.3d at page 834. But, Hall recognized
the trial court’s power to weigh the facts when assessing defense
counsel’s offer of proof in this context: “an inquiry into the
admissibility of such [third party culpability] evidence and the
balancing required under section 352 will always turn on the
facts of the case. Yet courts must weigh those facts carefully.
They should avoid a hasty conclusion . . . that evidence of [the
third party’s] guilt was ‘incredible.’ Such a determination is
properly the province of the jury.” (Ibid.) Hall confirms the trial
court must weigh the facts of the case “carefully” and “avoid a
hasty conclusion.” Here, the record discloses the trial court
carefully considered extensive arguments over two days to avoid
a hasty conclusion.
DISPOSITION
The judgment is affirmed.
MARTINEZ, P. J.
We concur:
SEGAL, J. FEUER, J.
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