P. v. Reynoso

Filed 10/2/08 P. v. Reynoso CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Curtis B. Rappe, Judge. Affirmed.

Charlotte E. Costan, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Paul M. Roadarmel, Jr. and Roy C. Preminger, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Juan Jose Reynoso appeals from the judgment entered upon his convictions by jury of first degree murder (Pen. Code, 187, count 1)[1]and two counts of second degree robbery ( 211, counts 2 & 3). As to all counts, the jury found to be true the special allegations that a principal personally and intentionally discharged a firearm in the commission of each of the offenses proximately causing death within the meaning of section 12022.53, subdivisions (d) and (e)(1), the offenses were committed for the benefit of, at the direction of, or in association with, a criminal street gang within the meaning of section 190.2, subdivision (a)(22) and, as to count 1, that the murder was committed while defendant was engaged in the commission of a robbery, a special circumstance within the meaning of section 190.2, subdivision (a)(17).[2] The trial court sentenced defendant to a life term without the possibility of parole plus 25 years to life on count 1, and to six years plus 25-years-to-life terms on both counts 2 and 3. The sentence on count 3 was made concurrent to the sentence on count 1, and the sentence on count 2 was stayed pursuant to section 654.

Defendant contends that (1) his first degree felony murder conviction should be reversed because the jury instructions erroneously permitted his conviction though the murder occurred after others had already committed the robberies and before he arrived at the scene; (2) he was deprived of a fair trial by the trial courts refusal to order the prosecutor to turn over discoverable material; (3) the trial court denied him a fair trial by erroneously denying his Pitchess[3]motion; (4) the trial court erred in allowing the preliminary hearing testimony of a key prosecution witness for whose attendance at trial the prosecution failed to exercise due diligence; (5) there is insufficient credible evidence to sustain the convictions; (6) the prosecutors sobbing during closing argument constituted misconduct depriving defendant of a fair trial; (7) CALCRIM instructions Nos. 358 and 359 were conflicting and ambiguous, depriving him of his constitutional rights; (8) the convictions must be reversed as the result of cumulative prejudicial errors; or (9) alternatively, the murder conviction should be reduced due to insufficient evidence of intent.

We affirm.

FACTUAL BACKGROUND

Prosecution Evidence

Quincy Wright

On the evening of February 24, 2002, Quincy Wright (Wright)[4]and Gregory Damron (Damron), who knew each other from a downtown Los Angeles mission, took the subway to Hollywood to sell rock cocaine that Damron had in his pocket. Once in Hollywood, they asked a man on a bicycle, subsequently identified as Scrappy Herrera (Scrappy), a White Fence gang member, for a good place to sell cocaine.

After receiving directions, Wright and Damron went to a liquor store where Damron bought a drink. They then went around the corner so Wright could smoke cocaine. Before he could do so, Damron walked away, saying, Lets go. Wright looked down the street and saw Scrappy and several other men approaching. As the men reached Damron and Wright, Scrappy asked what they were selling, and where it was. Wright showed the men his cocaine pipe and lighter, and Scrappy again asked where it was. Wright pulled from his pocket a bus ticket to Chicago and a couple of dollars. The men slapped the cocaine pipe from Wrights hand, took it and the bus ticket.

A fight began. Wright hit at least one person with his fist. He noticed a taller young man, wearing black pants walk by holding up his sweatshirt, displaying a gun at his waist. One of the men with whom Wright was fighting left Wright to approach Damron with the man with the gun. Wright heard Damron say to them, I dont have nothing, this is all, and here. As Wright continued fighting with the other men, he heard a gunshot and saw a quick flash. Damron fell, and his attackers ran. Wright ran to a nearby restaurant to telephone police.

Danny Acevedo

As Wright and Damron were preparing to sell drugs in Hollywood, Acevedo[5]was drinking and doing drugs in his apartment, on the corner of Harold Way and St. Andrews Place, with his half-brother Fernando Narvarez (Narvarez) who lived with him, defendant, defendants brother, George, and Lerid Haaccann (Haaccann). All of the men were involved with the White Fence gang. Acevedo was involved in the gangs activities, but did not claim membership. He did allow the gangs members to use his apartment to sleep, chill[], smoke, drink and party, and became very close to defendant.

At some point in the evening, defendant, wearing gray sweatpants rolled up to his knees, and Haaccann went to a nearby liquor store to buy more beer. Fifteen to 30 minutes later, excited and out of breath, defendant returned. As he described what happened, he removed from his waistband a gun that Acevedo recognized as belonging to the White Fence gang. Defendant said that on the way to the liquor store he and Haaccann saw two Black males who appeared to be selling drugs. They approached the two men and asked if they were selling, because if they were, defendant intended to tell them they could not do so in White Fence gang territory. As they were talking, a car approached and three gang members jumped out. One immediately started swinging at the Black males, and a fight broke out. Defendant said that Silent, who Acevedo assumed referred to gang member Little Silent, pulled out and waved a gun. One of the Black men knocked Haaccann to the ground. One of the Black men ended up on the ground, and defendant put a gun to his head and shot him.

Fernando Narvarez

Narvarez corroborated his half-brothers story. When defendant returned to the apartment alone after the shooting, he was breathing heavily, had a gun, and was wearing a black sweatshirt and, as was his habit, gray sweatpants pulled up to his knees. Defendant said they became involved in a fight, and he shot someone.

At various times after the shooting, when Narvarez went with defendant to the liquor store, defendant would point to the place where he shot that fool.

Narvarez denied cooperating with police to get his half-brother an early release from prison, but acknowledged the police contacted him and said that Acevedo gave them his number so perhaps Acevedo could get an early release.

Lerid Haaccann

Haaccann testified at defendants preliminary hearing and trial under a grant of use immunity.[6] He reported going to Acevedos apartment on a February 2002 night where he ingested crack cocaine and drank beer. He brought with him a gun that he had been ordered to deliver and put it on a table.

Later that evening, he and defendant went to a liquor store at Hollywood Boulevard and St. Andrews Place to buy more beer. As they were walking, they met Scrappy, who was riding a bicycle. Scrappy told them that two guys were selling dope up the street. Haaccann saw two Black men near the side of the liquor store, appearing to be drinking beer and talking on the sidewalk.

After they spoke with Scrappy, Haaccann and defendant continued toward the liquor store. As they walked past the two Black men, White Fence gang members, including Scrappy, attacked the two Black men, and a fist fight ensued. Haaccann joined the fight, and one of the Black men came at him. Haaccann tried to grab the man, and someone punched Haaccann in the jaw, causing him to fall. Defendant came over and asked Haaccann what happened. Defendant then shot the man who had punched Haaccann, using the gun that Haaccann had delivered to Acevedos apartment. Haaccann, defendant and the other White Fence gang members ran from the scene. Haaccann walked around a few blocks and then returned to Acevedos apartment where he thanked defendant for saving his life.

Juan Andrade

Andrade did not appear for trial despite having been served with a subpoena. Consequently, his preliminary hearing testimony was read into the record.[7] Andrade was in his apartment at approximately 9:05 p.m., on February 24, 2002, when he heard screaming outside and someone say something about selling dope in their hood. He looked outside and saw five or six males beating up one person. As he walked out of his apartment, he saw someones arm go up, apparently with a gun, and then heard one gunshot. The person he thought fired the shot was wearing a white t-shirt, a black baseball cap, and gray sweatpants that were rolled or bunched like shorts to the upper calf area. He could not identify defendant as the shooter. After the shooting, the shooter and other attackers ran. Andrade telephoned police, and told them that the assailants dropped the victim, and the other attackers started stomping on him. One took out the gun and shot him. He believed the attackers were gang members.

The Investigation

Detective Parry arrived at the crime scene after an ambulance had taken Damron to the hospital. He observed items of Damrons clothing, which had been removed by paramedics, and blood spatter on the sidewalk. A .380-caliber bullet casing and a paper bag were on the sidewalk. A wristwatch was also found at the scene.

Nine months after the shooting, Detective Parry showed Wright a photographic six pack lineup. Wright selected one of the photos as depicting the person he had seen on the bicycle. He was also shown a number of color photographs of local gang members but did not identify anyone else involved in the shooting. Andrade was shown a book containing photographs of gang members, including Acevedo, Psycho, and Little Silent. Andrade did not identify Little Silent as being involved in the incident.

At a live lineup that included defendant, approximately two and one half years after the shooting, Wright selected another person as having been present at the shooting. The person selected was not defendant and had no connection to the White Fence gang.

Detective Parry contacted defendant two years after the shooting, when defendant was in custody, and told him that he knew defendant and his homeboys had been involved in a shooting. Detective Parry said he had spoken to Haaccann, Scrappy, and others and wanted to hear defendants version. The detective showed defendant a photographic six pack with defendants picture circled, and lied to defendant that his fingerprints were found on the victims watch.

Defendant told Detective Parry that he had been at Acevedos apartment, drinking and smoking. He went to the liquor store to get more beer. He met up with Haaccann, who walked with him. Defendant saw his homeys, including Scrappy, stomping on a couple of people. In accordance with gang rules, defendant joined his buddies in the fight and kicked one of the guys in the body a couple of times. Defendant heard a gunshot, but did not see anyone with a gun and did not know who was shot. He did not take anything from the victims. Detective Parry tried to record this interview on a concealed cassette recorder, but when he attempted to listen to the cassette after the interview, it was blank.

An autopsy on Damron established that he died of a single gunshot wound to the head fired from a distance of less than two to three feet. Damron also had contusions and abrasions on his head and right hand, consistent with blunt force trauma from fighting. The bullet removed from Damrons head and the expended casing found at the scene were fired from the same handgun that was found in the rear of a vehicle driven by Karen Arzumanyan on April 2, 2002. Defendants fingerprints were not found on the gun barrel or on any other items tested.

Gang Evidence

Detective Frank Flores testified as a gang expert to his opinion that defendant was an active member of the Locos, a clique of the White Fence gang; Damron was shot in that gangs territory; the White Fence gangs primary activities were assaults, murder, extortion, robbery, theft and drug trafficking; the gangs chief source of income was drug sales; the gang allowed nongang members to sell narcotics in its territory only if the seller agreed to pay a tax to the gang and it challenged those who attempted drug sales without such an agreement because such sales disrespect the gang; and gang members would demand such a person pay the tax, or the person would be attacked or killed. Detective Flores testified to two predicate felony offenses committed by other White Fence gang members.

Detective Flores also observed that gang members avoid criminal prosecution by intimidating people in their territory and individuals willing to identify a gang member who has engaged in criminal activity more often than not change their minds as a result of the intimidation. He also noted that members of a gang generally share guns with each other, and members of one clique of a gang share and pass around guns with members of another clique of the same gang.

Responding to hypothetical questions, Detective Flores opined that under facts similar to those presented here, if two White Fence gang members were confronted by a person they were informed was selling drugs in their territory without an agreement to pay a tax, beating and shooting that person would be for the benefit of the gang. He also opined that a gang member who shoots a stranger he sees hitting a fellow gang member would also have been acting for the benefit of the gang. If a gang member is assaulted with no response, the gang loses face.

DISCUSSION

I. The Jury Was Properly Instructed on Robbery Felony Murder.

A. Applicable Jury Instructions

The trial court instructed the jury in accordance with Judicial Council of California Criminal Jury Instructions (2006) CALCRIM Nos. 540B (felony murder-where a co-participant commits the fatal act), 549 (felony murder-special circumstance of murder during robbery), and 703 (felony murder, intent requirement for accomplice).[8]

B. Defendants Contentions

Defendant contends that instructional errors allowed the jury to convict him of felony murder on an invalid theory of post-robbery involvement in the assault and murder, though there was no evidence linking him to any pre-murder involvement in the robbery. He argues that CALCRIM Nos. 540B, 549 and 703 misled the jury by failing to require that the robbery and murder be contemporaneous. This contention is meritless.

C. Adequacy of the Instructions

A killing committed in the perpetration of robbery is first degree murder. (People v. Cavitt (2004) 33 Cal.4th 187, 197; 189.) Everyone aiding or abetting the commission of robbery are guilty of first degree murder when one of them kills while acting in furtherance of the common design. ( 189;People v. Pulido (1997) 15 Cal.4th 713, 716.)

We evaluate whether an instruction is misleading by reviewing the instructions as a whole. (People v. Campos(2007) 156 Cal.App.4th 1228, 1237.) It is only misleading if in the context of the entire charge there is a reasonable likelihood that the jury misconstrued or misapplied its words. (Ibid.)

CALCRIM No. 540B provides that a defendant can be guilty of felony murder where the defendant did not personally commit the murder, if the defendant aided and abetted or committed the robbery, and the perpetrator [w]hile committing a Robbery, . . . did an act that caused the death of another person. CALCRIM No. 549 also states that to find felony murder under the commission of a robbery special circumstance, the act causing death and robbery must be part of one continuing transaction. These instructions adequately informed the jury that the robbery and murder had to be contemporaneous.

Even if the instructions were misleading on this point, the jury was not misled as it found the allegation that the murder was committed by defendant JUAN JOSE REYNOSO while engaged in the commission of the crime of ROBBERY, within the meaning of Penal Code Section 190. (2)17) [sic] to be true. (Italics added.)

D. The Evidence Supports the Jurys Finding That the Murder Occurred While Defendant Was Engaged in the Commission of the Robbery

There was sufficient evidence that defendant was at the scene of the shooting prior to completion of the robbery and intended to aid and abet in the robbery. A robbery is not complete until the perpetrator reaches a place of temporary safety, which is not the scene of the robbery. (People v. Wilson (2008) 43 Cal.4th 1, 17; People v. Young (2005) 34 Cal.4th 1149, 1177.) The jury was so instructed.[9] Whether a defendant has reached a place of temporary safety is a question of fact for the jury. (People v. Johnson (1992) 5 Cal.App.4th 552, 559.)

Defendant and Haaccann arrived at the scene of the shooting while a fistfight was occurring and both victims were alive, the shot had not yet been fired, and the victims had not yet been subdued. The robbery scene was clearly not a place of temporary safety, notwithstanding defendants claim that it was a dark side street where they outnumbered the victims four to two. (See People v. Wilson, supra, 43 Cal.4th at p. 17.) In fact, Andrade was able to observe the melee from his second floor window, demonstrating that the location was not hidden from witnesses who might contact authorities. Furthermore, immediately after the shooting, the attackers ran, hardly the actions of robbers in a place of safety.

[E]vidence may support the conclusion that no place of temporary safety has been reached while the robber is still encumbered with the victim, who at first opportunity might call the police. (People v. Barnett (1998) 17 Cal.4th 1044, 1153.) Here, when defendant arrived at the scene, the White Fence gang members were fighting with the victims. After the shooting, Wright ran to call the police. Thus, demonstrating that the robbers had not yet successfully escaped from the scene or unencumbered themselves from the victims.

There was also evidence that defendant arrived at the scene before the property was taken from Damron and that he assisted in the taking. Wright testified that one of the men with whom he was fighting, left and approached Damron with the man with the gun, who was identified by several witnesses as defendant. Wright heard Damron say to them, I dont have nothing, this is all, and here. This evidence supports the reasonable inference that defendant participated in taking property from Damron before he was shot.

II.Discovery of Expert Report

A. The Discovery Motions

Detective Parry attempted to surreptitiously record an interview with defendant who was then in custody. According to the detective, defendant made significant admissions during this interview. Defendant denied making any admissions. When the detective attempted to replay the tape recording of the interview, he discovered there was nothing on it.

A year before trial and before defendant had an opportunity to examine the cassette tape and recording equipment, Detective Parry sent them to the Federal Bureau of Investigation (FBI) where David Snyder (Snyder), a forensic examiner of electronically recorded audio, tested them. Thereafter, defendants expert, John Freytag (Freytag), was provided the cassette tape and recording equipment for inspection and testing, though not Snyders report.

Defendant filed a motion for pretrial discovery of, among other things, Snyders report, which Freytag stated was necessary because the testing done by Snyder can cause damage to an evidence tape . . . and may impact alternative methods of examining a tape. . . . At the hearing on the motion, defense counsel argued that once a witness is identified as a prosecution rebuttal witness, discovery is required. He also stated that he did not yet have a report from Freytag to suggest any impropriety regarding the failed recording. In response, the prosecutor said she would only call Snyder as a witness if the defense implied that something was done deliberately to alter the tape, and it was her position that she did not have to give the defense Snyders report unless the defense expert was able to suggest that there was some nefarious conduct regarding the recording. The trial court denied the motion, telling defense counsel: Youre not yet in a position where you can call anybody on this. . . .  Once your guy [examines] this and says something that youre going to use in trial then the whole thing changes.

In the defendants opening statement on April 17, 2006, the jury was told that Detective Parry was going to testify that he tried to record the interview with defendant but that the recorder did not work.

On April 25, 2006, defense counsel sought to exclude Detective Parrys testimony as a sanction because Freytag was going to testify and had not received the FBI report in a timely manner. The defense theory for requesting the report was now different from the discovery motion, as the new focus was not on the cassette tape, but on the extensive tests done on the recorder by the FBI. The prosecutor argued that the defense had the recorder, tape and microphone, and could have tested each. The trial court agreed with the prosecutor. The prosecutor added that following defense counsels opening statement, she tentatively decided to call Snyder as a witness in her case-in-chief to show the jury that nothing nefarious occurred. She then gave defense counsel Snyders report, which noted that Snyder experienced one instance when the recorder failed to record when in the record mode. She also pointed out that Freytag had had an opportunity to examine and test the cassette recorder, tape and microphone, and had returned them. She offered to make them available to Freytag for further testing. The trial court told defense counsel to conduct the tests he needed.

On April 27, 2006, when Detective Parry was called to testify, defense counsel again raised the issue, claiming a Brady[10]violation because he had not received Snyders report until it was too late to test the cassette tape, again refocusing his challenge on the cassette tape. In addition to repeating the arguments she had already made, the prosecutor stated that she had reviewed Freytags report, and found that it basically reached the same conclusions as Snyder, although Freytag did not experience any problem with the recorder. The trial court overruled the defense objection.

B. The Experts Trial Testimony

At trial, Snyder testified that the record light on the cassette recorder sometimes illuminated regardless of the mode in which the recorder was being used, indicating that it was malfunctioning. He listened to the cassette tape and heard only a clicking sound that lasted less than a second, six minutes into the second side. The rest of the tape was blank. He opined that the clicking sound was consistent with the cassette recorder having been momentarily placed in the record mode and immediately stopped. Snyder did not observe any evidence that the tape had been physically altered or erased. He opined that his observations were consistent with someone having attempted to record on the cassette tape while the record light was on, but the recorder was not actually in the recording mode.

Freytag testified that he also tested the cassette tape and the cassette recorder. He performed his testing after the recorder and tape had been examined by Snyder. After reviewing Snyders report, Freytag testified that he would not have done anything differently if he had Snyders report before he did his testing. He found no failures on the tape. The cassette recorder and microphone functioned properly every time he tested them. In his opinion, nothing had ever been recorded on the tape, except for a fraction-of-a-second clicking sound on the second side. Freytag determined that the tape had not been erased. It did, however, go from side A to side B because there was a start stop signature. He also found that the record light was on whether in the record or play modes.

C. Defendants Contention

Defendant contends that denial of his discovery request for Snyders report deprived him of a fair trial. He argues that because the prosecutor did not produce that report before Freytag tested the cassette recorder and tape, Freytag was unaware of Snyders finding that the recorder malfunctioned. As a result, the trial court erred in allowing Snyder to testify and should have precluded Detective Parrys testimony concerning his interview of defendant. We need not address this contention because we conclude that even if the trial court erred in its discovery ruling, any error was harmless by even the most stringent application of the beyond a reasonable doubt standard. (People v. Lara (1994) 30 Cal.App.4th 658, 676.)

D. Lack of Prejudice

Defendant has failed to meet his burden of establishing that he suffered any prejudice from the claimed discovery error. (People v. Carpenter (1997) 15 Cal.4th 312, 386.) Shortly after trial began Freytag saw Snyders report. Freytag thereafter testified that he would not have done anything differently in his testing had he seen the report earlier. This testimony by itself supports the conclusion that the trial courts discovery ruling did not harm defendant. In addition, Freytags conclusions substantially agree with those of Snyder, and find no wrongdoing with respect to the attempted recording. Though the trial court denied the pretrial motion for Snyders report, it was voluntarily produced with the promise to make the recorder, tape and microphone available if needed, before Freytag testified. While this may not have been the optimum time for production, it gave Freytag ample time for further examination or testing before the close of testimony on April 28, 2006.

Furthermore, even if the trial court found there to be a discovery violation, it is unlikely that it would have excluded the testimony of Detective Parry or Snyder. [A] court may make any order necessary to enforce the [discovery] provisions, . . . including, but not limited to, immediate disclosure, contempt proceedings, delaying or prohibiting the testimony of a witness or the presentation of real evidence, continuance of the matter, or any other lawful order. Further, the court may advise the jury of any failure or refusal to disclose and of any untimely disclosure. ( 1054.5, subd. (b).) A witness can be prohibited from testifying only if all other sanctions have been exhausted. ( 1054.5, subd. (c).) Prohibiting testimony is not an appropriate discovery sanction in a criminal case absent showing of significant prejudice and willful conduct. (People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757-1758.) The remedy imposed, if any, is subject to the trial courts discretion, which we review for abuse. (People v. Lamb (2006) 136 Cal.App.4th 575, 581.) There was little, if any, prejudice here to warrant the exclusion sanction and there were a number of less severe remedies that would have been appropriate.

III. Defendant Has Failed to Provide a Record Sufficient to Allow Consideration of His Pitchess Claim

Defendant filed a Pitchess motion seeking personnel information and records of Detectives Parry and J. Padilla, relating to complaints against them for, among other things, false testimony, fabrication of police reports and probable cause, perjury, false or misleading internal reports, and dishonesty. The declaration in support of the motion stated that the records were material because the two detectives interviewed defendant, and defendant claimed their assertion that he made admissions was fabricated.

The record on appeal does not include a reporters transcript of any hearing on the Pitchess motion. The only reference to such a hearing is contained in the minute order of July 8, 2005, which notes: The court holds an in-camera hearing, as further reflected in the court-ordered sealed notes of the official court reporter . . . . The court signs an order and the City Attorneys office must comply by 7/15/05.

Defendant contends that the trial court erred and deprived him of his right to a fair trial when it denied the Pitchess motion. The Attorney General contends that defendant has not established from the record that the trial court denied his Pitchess motion or that any error or prejudice to him occurred. We agree with the Attorney General.

As set forth above, the minute order of July 8, 2005, suggests that there was an in camera hearing at which a deputy city attorney was present resulting in an order by the trial court to comply. Under the procedure articulated in People v. Mooc (2001) 26 Cal.4th 1216, an in camera proceeding would only have occurred if the trial court determined that there was good cause for disclosure and granted the Pitchess motion. Only then would the custodian of the officers records provide the potentially relevant personal records to the court for review in an in camera proceeding to determine whether something was to be disclosed. (People v. Mooc, supra, at p. 1226-1227.)

In the absence of a transcript of the hearing on the Pitchess motion or of the in camera proceeding, we can only speculate as to what occurred. To preserve a point for review on appeal, a defendant must provide an adequate record. (People v. Romo (1975) 14 Cal.3d 189, 195.) Defendant has failed to do so and has consequently failed to preserve his Pitchess claim.

IV. The Trial Court Did Not Err in Admitting Andrades Preliminary Hearing Testimony

Andrade was reluctant to testify at defendants preliminary hearing and told Detective Parry he was afraid for his family. Nonetheless, he testified that he was unconcerned about coming to court and did not fear retaliation. He also testified that the shooter was wearing grey sweatpants rolled up to the knee, though he could not identify defendant as being that person. Andrade subsequently failed to comply with a subpoena for trial.

A. The Due Diligence Hearing

On April 24, 2006, the following evidence was adduced at a hearing to determine whether the prosecution had exercised due diligence in attempting to secure Andrades presence at trial: Detective Parry testified that at the preliminary hearing, Andrade appeared nervous and afraid, and that the detective saw defendants brother, George, seated next to Andrade in the hallway, and Andrade, appearing nervous and frightened, get up and walk away from George.

On March 30, 2006, Detective Parry served a subpoena for the April 14, 2006 trial on Andrade at his work site, placing him on call. The detective explained what it meant to be on call and the consequences of failing to comply with the subpoena. Andrade agreed to the on call arrangement and signed the subpoena. He led Detective Parry to believe he would appear when needed.

On April 14, 2006, Detective Parry telephoned Andrade, at the cell phone number previously used, to remind him of his on call status. He reached Andrades voice mail.

On April 17, 2006, the following Monday, Detective Parry telephoned Andrade several times, leaving messages explaining the situation for not appearing. He also went back to Andrades workplace and learned that Andrade worked for a contractor. The contractor then informed the detective that Andrade was working with his father that day and that the contractor had not heard from him. Detective Parry then had his Spanish speaking partner talk with Andrades mother, with whom Andrade lived, about the unreturned messages. Andrades mother said that neither she nor her husband had seen Andrade since the day he was served with the subpoena.

On April 19, 2006, Detective Parry spoke with Andrades father, and was told that he had not seen nor spoken to his son since March 30, 2006, and that his son was frightened and had run away.

On April 20, 2006, the district attorneys investigator spoke with Andrades parents. He also telephoned area hospitals, the Los Angeles County Coroners office, and checked the district attorney system records. He found no record of Andrade in the Department of Motor Vehicles and determined that Andrade was not in the custody of the Immigration and Naturalization Service.

On April 21, 2006, Detective Parry again left a number of messages for Andrade. Also, for the second time, Detective Parry combed the neighborhood in which Andrade lived, looking for him. He prepared a flier with Andrades picture and body attachment information, which was distributed to other patrol officers in the hopes that he would be spotted.

On Saturday, April 22, 2006, other officers went to Andrades residence and again spoke with his parents. The officers were told that he had returned on the evening of April 19, 2006, without saying anything, and left early the next morning. The parents did not know where he had gone.

After serving Andrades parents with a subpoena for the due diligence hearing, the district attorneys investigator received a telephone call on the morning of Sunday, April 23, 2006, from Andrades father who reported having received a call from Andrade. The father told the investigator that Andrade was going to call him. A short time later, the investigator received a call from someone purporting to be Andrade, who said that he was calling from Mexico City en route to Acapulco, he had no money, and he did not know when he was going to arrive. At the conclusion of the call, the investigator attempted, through the operator, to locate the number from which it came, but was unable to do so.

At the due diligence hearing, Andrades father testified that his son was not a United States citizen and had no papers to allow him to return to the United States.

At the conclusion of the hearing, defense counsel stated: I dont think I could stipulate to [due diligence] but it would appear without a stipulation that Mr. Andrade has not made himself available. The trial court stated that it did not know what else the People could do to produce the witness, with which statement defense counsel agreed. The trial court then found that the prosecutor exercised due diligence, and Andrade was unavailable.

B. Contentions

Defendant contends that the trial court erred in allowing Andrades preliminary hearing testimony to be read into evidence because the prosecutor had failed to exercise due diligence in procuring his attendance. He argues that the prosecution, knowing that Andrade appeared to be afraid in October 2004 [defendants preliminary hearing], should have kept a closer watch on [him] when the trial commenced. He further contends that the trial courts error deprived him of his right to confront and cross-examine witnesses against him, as guaranteed by the Sixth Amendment to the United States Constitution. Defendant argues that while there is opportunity for cross-examination during a preliminary hearing, the scope of a preliminary hearing is limited.

The Attorney General responds that these claims are untimely for purposes of appeal because defense counsel did not object in the trial court that the prosecution had failed to exercise due diligence. We agree.

C. Forfeiture

At the conclusion of the due diligence hearing, defendants counsel did not claim that the prosecution failed to exercise due diligence or that defendants right to confrontation was violated. In fact, counsel acknowledged that Andrade was unavailable and agreed with the trial court that he did know what more the prosecution could have done to procure Andrades attendance. Such objections cannot be raised for the first time on appeal. (People v. Raley (1992) 2 Cal.4th 870, 892 [admissibility of evidence and confrontation clause claim waived].) Even if the claims had not been waived, we would nonetheless reject them.

D. Due Diligence

Evidence Code section 1291 provides that former testimony is not inadmissible by the hearsay rule if the declarant is unavailable as a witness, and [t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing. Evidence Code section 240, subdivision (a)(5) provides that a witness is unavailable where the witness is [a]bsent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the courts process.

We review the trial courts determination of due diligence de novo. (People v. Cromer (2001)24 Cal.4th 889, 901.) Due diligence to secure the presence of a witness is determined by the facts of each case and is incapable of mechanical definition. (People v. Sanders (1995) 11 Cal.4th 475, 523.) We assess due diligence by what has been done to effectuate the witnesses attendance at trial, not by the suggestions of Monday morning quarterbacks as to what should have been done, but was not. (People v. Diaz (2002) 95 Cal.App.4th 695, 706 [An appellate court will not reverse a trial courts determination [under Evidence Code section 240] simply because the defendant can conceive of some further step or avenue left unexplored by the prosecution. Where the record reveals, . . . that sustained and substantial good faith efforts were undertaken, the defendants ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecutions efforts unreasonable. [Citations.] The law requires only reasonable efforts, not prescient perfection].)

While there is no universal formula to determine whether a prosecutor has exercised due diligence, courts look to the totality of the circumstances, including the character of the efforts made, whether the prosecutor reasonably believed the witness would appear willingly or if the prosecutor had reason to believe the witness would not, whether the search was timely begun, whether the witness would have been produced if reasonable diligence had been exercised (People v. Sanders, supra,11 Cal.4th at p. 523), and how vital the witnesss testimony is to the case. (See People v. Hovey (1988) 44 Cal.3d 543, 564.)

Andrades testimony corroborated the testimony of Haaccann, who saw defendant shoot Damron; Narvarez and Acevedo, who testified that defendant admitted being the shooter to them; and Detective Parry, who testified that defendant admitted to him that he was at the scene of the shooting and participated in the fight. Cumulative testimony is not vital. (See People v. Hovey, supra, 44 Cal.3d at p. 564.) Moreover, Andrades testimony was circumstantial. He could only identify the shooters clothing, which matched the description of defendant given by others who identified him. He could not identify defendant as the shooter.

The prosecution had every reason to believe Andrade would appear at trial. He testified at defendants preliminary hearing despite his understandable fear. At no time during that testimony did he intimate that he would not appear for trial nor did the prosecution otherwise have such a suspicion. Two weeks before trial, he was served with a subpoena compelling his attendance. When served, he led Detective Parry to believe that he would attend trial, agreeing to an on call arrangement. He had a stable residence with his parents at the same location for some time. Only when Andrade failed to respond to Detective Parrys telephone call on the day scheduled for trial did he give the first indication that he might not comply with the subpoena.

Detective Parry immediately began efforts to locate him. Calls were placed to the cell phone at which Andrade had been previously contacted, and messages were left. Detective Parry both went to Andrades place of employment and spoke with Andrades parents, who reported that he had run away and had not been seen since he was served with the subpoena. Detective Parry combed Andrades neighborhood looking for him on multiple occasions and prepared a flier with Andrades photograph which was given to patrol officers to aid them in searching for him. The district attorneys investigator checked court records and determined that Andrade was not in the criminal system. He also checked local hospitals and the coroners office, with no success. The Department of Motor Vehicles and the Immigration and Naturalization Service had no record of him. When the investigator received a telephone call from a person purporting to be Andrade, he unsuccessfully attempted to determine from where the call was made. As the trial court stated, I dont know what else the People could do.

Defendant nonetheless argues that the prosecutor did not keep up on Andrades whereabouts in the two weeks before trial. But ordinarily, [t]he prosecution is not required to keep periodic tabs on every material witness in a criminal case. . . . [Citation.] Also, the prosecution is not required, absent knowledge of a substantial risk that this important witness would flee, to take adequate preventive measures to stop the witness from disappearing. [Citation.] (People v. Wilson(2005) 36 Cal.4th 309, 342; People v. Martinez(2007) 154 Cal.App.4th 314, 328.) There was no evidence Andrade presented a greater risk of nonappearance than any witness in a gang-related case.

E. Confrontation Clause

An accused in a criminal prosecution has the right to be confronted with the witnesses against him (U.S. Const., 6th Amend.; People v. Louis (1986) 42 Cal.3d 969, 982, overruled on other grounds in People v. Mickey (1991) 54 Cal.3d 612, 672, fn. 9) to ensure that the defendant is able to conduct a personal examination and cross‑examination of the witness, in which [the defendant] has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief. (People v. Louis, supra, at p. 982.)

But the right to confront witnesses is not absolute. (People v. Cromer, supra, 24 Cal.4th at p. 897.) Traditionally, there has been an exception to the confrontation requirement where a witness is unavailable and has given testimony at previous judicial proceedings against the same defendant [and] which was subject to cross-examination . . . . (Ibid.) Under California law the prosecution must show reasonable or due diligence in attempting to procure the witness at trial. (Ibid.)

Defendant argues that he did not have a bona fide opportunity to cross-examine Andrade because defendant had a different interest and motive in cross-examining him at the preliminary hearing, than he did at trial. At the preliminary hearing, he only tried to clarify the witnesses story, and did not explore all of the credibility issues. Defendants argument misses the mark. The issue is not the extent of cross-examination actually conducted at the prior hearing, but, in the words of Evidence Code section 1291, whether appellant had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing. (Evid. Code,  1291, subd. (a)(2), italics added.) Defendant had that opportunity and availed himself of it. The extent of the cross-examination was his choice. While the purpose and goals of a preliminary hearing are not identical to those at trial, the issues are sufficiently similar so as to have given defendant an interest and motive to cross-examine at the preliminary hearing that was similar to trial, although he may have strategically determined to cross-examine differently.

F. Harmless Error

Even if we were to conclude that the trial court erred in permitting the prosecution to admit Andrades preliminary hearing testimony, such error was harmless by even the most stringent reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18, 23-24.) As discussed above, Andrade did not identify defendant as the shooter, but merely saw a man in grey sweatpants rolled up to his knee do so. There was other evidence identifying defendant as the shooter: Haaccann, who was present at the scene of the shooting, saw defendant shoot the man who had punched Haaccann in the head; defendant admitted to Acevedo and Narvarez, that he was the shooter; and Detective Parry testified that defendant admitted being present at the scene and participating in the fight, although denied being the shooter. Andrades cumulative, circumstantial evidence, compared to this compelling direct evidence would have had little impact on the jurys verdict.

V. There is Sufficient Credible Evidence to Support Defendants Convictions

Defendant contends that there is insufficient credible evidence to sustain his convictions. He argues that, other than Andrade, who failed to comply with a trial subpoena and attend trial, the prosecutions witnesses were drug dealers, convicted felons, and gang members, either with an axe to grind or with the expectation of leniency in unrelated matters, or both.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin, supra, at p. 331.)

There is a well-articulated exception to the policy that appellate courts defer to the fact finders assessment of credibility. Where testimony is improbable or incredible a conviction cannot be based upon it. (People v. Casillas (1943) 60 Cal.App.2d 785, 794; People v. Huston (1943) 21 Cal.2d 690, 693 [inherently improbable], disapproved on other grounds in People v. Burton (1961) 55 Cal.2d 328, 352; and People v. Carvalho (1952) 112 Cal.App.2d 482, 489 [testimony unbelievable per se].) But to disregard testimony as inherently improbable, the testimony must be fantastic and do violence to reason, challenge credulity, and in the light of human experience, emasculate every known propensity and passion of people under the conditions testified to by the prosecutrix. (People v. Carvalho, supra, at p. 489.) It must involve a claim that something has been done which it would not seem possible could be done under the circumstances described. (Ibid.) To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] (People v. Huston, supra, at p. 693.)

Though there was significant evidence casting doubt on each of the prosecution witnesses credibility, their testimony was not unbelievable per se or physically impossible and did not do violence to reason. Evidence of a reason to disbelieve a witness does not make the witnesses testimony inherently incredible, impossible to be true, or illogical. Evidence of a witnesss dishonesty, criminal record, bias or other propensity or motivation to lie presents the very kind of credibility determination reserved for the jurys exclusive province. (See People v. Barnes (1986) 42 Cal.3d 284, 306.) Here, the jury evaluated the prosecution witnesses in light of the evidence and arguments of counsel that they were not to be believed. We cannot substitute our judgment for the jurys. (People v. Garcia (1993) 17 Cal.App.4th 1169, 1183.)

When the evidence is properly considered, it amply supports defendants convictions, as fully set forth in parts I. D and IV. F, ante.

VI. Prosecutorial Misconduct

At the conclusion of the prosecutors opening argument, defense counsel requested a mistrial because apparently the D.A. began sobbing. The prosecutor objected that sobbing is too strong a word. Defense counsel responded, Well, it looked like sobbing to me. She was crying . . . , it wasnt uncontrollable or hysterical . . . but I think that that demonstration of emotion is so prejudicial. . . .

The trial court denied the motion, stating, As you admit it was not uncontrollable. It was barely perceptible. And this jury is going to be instructed that theyre not to decide the case on emotion but rather decide it on the evidence.

Defendant contends that the prosecutor committed prosecutorial misconduct by her display of emotion and that the trial court erred in denying his request for a mistrial. We disagree.

The well-established federal and state standards for assessing a claim of prosecutorial misconduct were set forth by our Supreme Court in People v. Samayoa (1997) 15 Cal.4th 795, 841: A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. [Citations.] Isolated instances of technical misstatement do not constitute a pattern of egregious behavior warranting reversal. (People v. Frye (1998) 18 Cal.4th 894, 978.)

Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. [Citation.] (People v. Samayoa, supra,15 Cal.4th at p. 841; People v. Ochoa (1998)19 Cal.4th 353, 427.) Prosecutorial misconduct does not require that the prosecutor act with a culpable state of mind. (People v. Hill (1998) 17 Cal.4th 800, 823, fn.1.)

The prosecutors actions here did not constitute prosecutorial misconduct under either the federal or state standard. The challenged behavior was not an egregious pattern of conduct. It was an apparently brief and isolated, barely perceptible instance of the prosecutor crying during closing argument. Furthermore, this spontaneous show of emotion was not reprehensible or deceptive and cannot be said to have infected the trial with unfairness. While attorneys should make every effort to keep their emotions in tow when making a presentation before the jury, they are not automatons immune from reacting to the horrors with which they must oftentimes deal.

Moreover, even if the prosecutors actions constituted misconduct, it was not prejudicial. Prosecutorial error is prejudicial where it is reasonably probable that a result more favorable to the appealing party would have been reached had the prosecutor not made the improper comments. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Garcia (1984) 160 Cal.App.3d 83, 93-94, fn. 12 [prosecutorial misconduct in exposing a jury to improper factual matters usually tested under the Watson standard]; see also People v. Medina (1990) 51 Cal.3d 870, 896.) In the context of this two-week trial, with graphic discussion of the heinous offenses charged, a momentary episode of barely perceptible emotion during closing argument did not likely affect the outcome. This is particularly so in light of the trial courts instructions to the jury in accordance with CALCRIM No. 200 that it must not decide the case on bias, sympathy, prejudice, or public opinion, which we presume it followed. (People v. Chavez (1958) 50 Cal.2d 778, 790.)

VII. CALCRIM Nos. 358 and 359 are Not in Conflict

The jury was instructed in accordance with CALCRIM No. 358, that evidence of defendants oral out-of-court statements must be considered with caution,[11]and with CALCRIM No. 359, that defendant could not be convicted of any crime on his out-of-court statements alone, but could be identified as the perpetrator solely on such testimony.[12] Defendant objected to these instructions, arguing that the requirement in CALCRIM No. 358 that oral statements of the defendant must be considered with caution and the statement in CALCRIM No. 359 that the identity of the person who committed the crime and the degree of the crime may be proved by the defendants statement alone, were confusing and contradictory. The trial court overruled the objection, pointing out that defendant could explain it in closing argument.

Defendant contends that CALCRIM No. 358 and CALCRIM No. 359 are ambiguous and conflicting, thereby depriving him of his constitutional rights. He argues that because of the contradictions in the statements in CALCRIM No. 358, that out-of-court statements by the defendant must be viewed with caution, and CALCRIM No. 359, that the identity of the person who committed the crime and the degree of the crime can be established solely by defendants out-of-court statements, the jury was free to disregard the cautionary instruction and convict [defendant] based solely on Detective Parrys narration of what [defendant] allegedly told him. This contention is without merit.

The corpus delicti of a crime cannot be proved by the out-of-court statements of the defendant alone, but must be corroborated by other evidence. (People v. Herrera (2006) 136 Cal.App.4th 1191, 1200, citing People v. Alvarez (2002) 27 Cal.4th 1161, 1164.) But the identity of the perpetrator is not an element of the corpus delicti and can be established solely by the defendants out-of-court statements. (People v. McNorton (2001) 91 Cal.App.4th Supp. 1, 6; People v. Cobb (1955) 45 Cal.2d 158, 161; see also People v. Jones (1998) 17 Cal.4th 279