P. v. Sample

 

 

 

 

 

 

 

 

 

Filed 10/1/13  P. v. Sample CA6

> 

> 

> 

> 

> 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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

 

SIXTH
APPELLATE DISTRICT

 

 
>

THE PEOPLE,   Plaintiff and Respondent,   v.   EDDIE JAMES SAMPLE et al.,   Defendants and Appellants.

H036207      (Santa Clara County       Super. Ct. Nos. CC788794, CC803714)

 

A jury convicted defendants Eddie James Sample and Daniel
Miller of first degree murder (Pen. Code, § 187),href="#_ftn1" name="_ftnref1" title="">[1]
and the trial court sentenced both to 25 years to life in prison.  On appeal, Sample claims the trial court (1)
prejudicially abused its discretion in failing to suppress evidence obtained by
unlawful and unconstitutional wiretaps and (2) prejudicially erred in failing
to suppress pre-arrest statements obtained from him in violation of >Miranda v. Arizona (1966) 384 U.S. 436 (>Miranda).  He further contends that the cumulative
effect of these errors denied him due
process. 

Miller adopts Sample’s arguments to the extent they apply to
him.  Miller further contends that (1)
the trial court’s refusal to admit the second part of his post-arrest interview
violated Evidence Code section 356 and his right to present a complete defense;
(2) the trial court’s refusal to admit Sample’s post-arrest statements
exculpating Miller and inculpating Sample and another person violated Miller’s
right to present a complete defense; and (3) the admission of cause-of-death
testimony by a pathologist who did not attend the autopsy violated Miller’s
Sixth Amendment right to confront the coroner who performed the autopsy.  Sample adopts Miller’s third argument.  We affirm the judgments.

 

I.  Background

In the early evening on January 25, 2006, Alfonso Neri walked from a friend’s
house in San Jose to a nearby
market.  On the way back, he noticed a
man he had seen in the market walking ahead of him on South
22nd Street. 
Two other men, one on foot and one on a bicycle, seemed to be following
the man.  The followers stopped behind a
trailer to talk, but Neri’s limited English kept him from understanding what
they said. 

Neri saw the man on the bicycle ride in front of the man
from the store, blocking his path.  A few
seconds later, the other man ran over and “beat [the victim] up with a
bat.”  From his vantage point directly
across the street, Neri saw the man with the bat hit the victim in the head
“[a]bout seven times,” and he heard “[a]bout five or six” additional
blows.  Neri saw the man on the bicycle
strike and kick the victim.  The
attackers fled, and Neri saw the victim “try to get up and try to walk, but he
couldn’t.” 

Neri returned to his friend’s house, and his friend called
911.  Responding officers found a pool of
blood and a few blood drops at the scene, but they were unable to locate a
victim. 

Later that night, different officers responded to a report
of a man acting strangely in the driveway of a house three-quarters of a mile
from where the attack occurred.  They
found Jorge Trujillo trying to break into a parked car with a garden rake.  When he stared blankly at them and failed to
respond to repeated commands, Trujillo
was tased, wrestled to the ground, and taken into custody.  “Once they had him in custody they made the connection
between the assault and the current case . . . and sent him to the
hospital.”  Trujillo
died the next day. 

Police canvassed the area where the
attack occurred.  Gilbert Godinez
reported hearing “like two sticks banging,” and “all of a sudden . . . like
three to four guys come running . . . from the scene . . . .”  Godinez saw Trujillo
struggle to get up, then limp away.  Neri
initially denied knowledge of the attack but eventually admitted having seen
it.  With Neri’s assistance, a police
artist made a sketch of the attacker on the bike. 

Months later, the investigation had
narrowed to focus on defendants, their friend Jason Garewal, and brothers
Richard Torres and Emmanuel Flores.  In
October 2006, police obtained recent photos of Sample and Miller, and Neri
positively identified both from photo lineups. 
“This looks like him, the kid on the bike,” he said in selecting
Miller’s photo.  “This is the one with
the bat,” Neri said in selecting Sample’s photo.  “He was holding the bat behind his back, and
then he came up and hit the guy on the head.” 


In November 2006, police obtained an order approving
wiretaps on defendants’ phones.  To
stimulate conversation, they interviewed Torres’s and Miller’s girlfriends,
Garewal, and later, Miller and Sample. 
In intercepted conversations, defendants placed themselves at the scene
of the attack and spoke about sticking to the story they and their friends had
agreed upon.  In a December 11, 2006 conversation, Garewal informed
Sample that police had told him not to worry because the investigation was
focused more on his friends than on Garewal. 
Sample responded, “ ‘I may
have to run.’ ”  Sample and Miller were arrested for the
murder two days later. 

Torres was arrested for the murder in April 2007.  He initially denied knowledge of the
attack.  In November 2007, he agreed to
plead guilty to an accessory-after-the-fact (§ 32) count in exchange for a
prison sentence of no more than 36 months. 
The agreement was conditioned on his testifying fully and truthfully at
trial. 

Torres testified that on the day of the murder, he,
defendants, Garewal, and Flores smoked marijuana at a school and decided to
pawn Flores’s Xbox for more marijuana. 
The group walked to the brothers’ house, and defendants and Garewal
waited in a shed and then by the front gate while Torres and Flores went into
the house.  When Torres and Flores came
out with the Xbox, Torres saw Miller block Trujillo’s path with his bike as
Sample ran up and hit Trujillo in the head with a bat.  When Trujillo “dropped,” Sample bent down and
hit him four or five more times with his fists, and Miller kicked and punched
Trujillo.  Torres ran toward them,
shouting, “What the fuck?”  The attack
stopped, Sample picked up the bat, and all five “took off” running toward a
nearby Wienerschnitzel.  Defendants and
Garewal got into a car driven by Miller’s brother, and Torres and Flores “did
the [Xbox] transaction.” 

When the five met the next day, Torres asked “what it was
about,” and Sample said, “[t]he guy was a scrap [a derogatory Norteño word for
Sureños] so we beat him up.”  A week
later, Sample told Torres he had gotten rid of the bat, and all agreed “[n]ot
to say nothing” about the attack.  After
that, Torres “disappeared.” 

Godinez and Neri also testified for the prosecution.  Neri told the jury the attack was something
he would “[n]ever” forget.  He was
“scared,” but he had been truthful and as accurate as possible in all of his
interactions with police. 

Homicide detective Brian Ferrante and other officers described
the investigation.  Police captain
Meynard Gamez described Neri’s positive identifications of defendants from the
October 2006 photo lineups.

Dr. Victor Tse, a board-certified neurosurgeon at Valley Medical Center in San Jose, testified as
an expert in head trauma.  Trujillo
arrived in the emergency room around 9:56 p.m. on January 25, 2006, and CT
scans revealed multiple skull fractures. 
Dr. Tse diagnosed severe head trauma with no blood flow to the brain,
and he pronounced Trujillo brain dead the next day.  Trujillo’s injuries were consistent with
blunt force trauma. 

Dr. Michelle Jordan, a board-certified pathologist employed
as an assistant medical examiner for Santa Clara County, testified as an expert
in pathology, neuropathology, forensic pathology, and taser-related
deaths.  Since she had not attended the
autopsy, Dr. Jordan based her testimony on autopsy photographs taken by crime
scene investigator Tom Schnutenhaus and on her review of Trujillo’s medical
records.  The photos revealed three separate
skull fractures as well as comminuted skull fractures—“essentially, that the
skull is just like a broken eggshell.” 
Dr. Jordan also pointed out “very large, jagged lacerations,” one of
which “approach[ed] 1.5 inches in depth.” 
Other photos showed subgaleal hemorrhage indicative of “massive head
trauma” and “significant subarachnoid hemorrhage” indicative of severe blunt
force trauma.  These were “significant”
injuries, and any one was sufficient to cause Trujillo’s death.  Trujillo’s head injuries were consistent with
someone being hit with a bat.  Dr. Jordan
opined that Trujillo died from blunt force trauma to the head caused by an
assault, that he could not have survived his injuries, and that tasing had “nothing
to do with” his death. 

The defense theory was that Neri’s identifications were
“questionable” and that Torres was a “gangster” who was “lying” to avoid a life
sentence.  Recalled to the stand, Torres
confirmed that he had been released shortly after he testified and was awaiting
sentencing pursuant to his plea agreement. 
Nelia Matos, who lived “right across the street” from Torres’s former
residence on South 22nd Street and had dated him “for a bit,” testified that
she had seen Torres outside, wearing baggy black and red clothing, on the
evening of the attack.  Ferrante was
recalled for questioning about the extent of his investigation into Torres’s
“gang connections,” and he and officer Daniel Ichige were questioned about the
photo lineups shown to Neri. 

The jury found defendants guilty of first degree
murder.  The trial court sentenced both
to 25 years to life in prison. 
Defendants filed timely notices of appeal. 

II.  Discussion

A.  Motion to
Suppress Wiretap Evidence

Defendants challenge the
trial court’s denial of Sample’s motion to suppress evidence obtained in
alleged violation of state and federal wiretapping statutes and the Fourth
Amendment.  Suppression was required,
they argue, because the issuing judge authorized the wiretaps on an inadequate
showing of necessity.  We disagree.

“In general, California law prohibits wiretapping.”  (People v. Zepeda (2001) 87
Cal.App.4th 1183, 1195 (Zepeda);
§ 631.)  A court may authorize a
wiretap, however, if the application contains facts showing that “there is
probable cause to believe that an individual has committed, is committing, or
is about to commit one or more of the listed crimes (§ 629.52, subd. (a));
there is probable cause to believe that communications concerning the illegal
activities will be obtained through that interception (§ 629.52, subd. (b));
there is probable cause to believe that the communications device will be used
by the person whose communications are to be intercepted (§ 629.52, subd. (c));
and ‘[n]ormal investigative procedures have been tried and have failed or
reasonably appear either to be unlikely to succeed if tried or to be too
dangerous’ (§ 629.52, subd. (d) . . . .)”  (People
v. Leon (2007) 40 Cal.4th 376, 384 (Leon).)  The fourth requirement is commonly referred
to as the necessity requirement.  (>People v. Roberts (2010) 184 Cal.App.4th
1149, 1172 (Roberts).)  The federal wiretapping statute employs
virtually identical necessity language. 
(18 U.S.C. § 2518(3)(c); Leon,
at pp. 384-385.)

“The requirement of necessity is designed to ensure that
wiretapping is neither ‘routinely employed as the initial step in criminal
investigation’ [citation] nor ‘resorted to in situations where traditional
investigative techniques would suffice to expose the crime.’  [Citation.] 
[It] can be satisfied ‘by a showing in the application that ordinary
investigative procedures, employed in good faith, would likely be ineffective
in the particular case.’ 
[Citation.]”  (>Leon, supra, 40 Cal.4th at p. 385.) 
“The burden of establishing necessity is ‘not great.’ ” 
(United States v. Gray (7th
Cir. 2005) 410 F.3d 338, 343.)  “As
numerous courts have explained . . . , it is not necessary that law enforcement
officials exhaust every conceivable alternative before seeking a wiretap.  [Citations.] 
Instead, the adequacy of the showing of necessity ‘ “is ‘to be tested in a practical and
commonsense fashion,’. . . that does not ‘hamper unduly the investigative
powers of law enforcement agents.’ ” ’  [Citation.] 
A determination of necessity involves ‘
“a consideration of all the facts and circumstances.” ’ 
[Citation.]”  (>Leon, at p. 385.)  “The finding of necessity by the judge
approving the wiretap is entitled to substantial deference.”  (Leon,
at p. 385, citing Zepeda, >supra, 87 Cal.App.4th at p. 1204 [“The
trial court’s determination that the ‘necessity’ requirement was met is
reviewed for abuse of discretion.”].)

A defendant who believes that evidence was “obtained in
violation of the Fourth Amendment of the United States Constitution or of
[California’s wiretapping statute]” may move to suppress its use at trial.  (§ 629.72.)  Such a motion is “subject to review in
accordance with the procedures set forth in Section 1538.5.”  (§ 629.72; People v. Jackson (2005) 129 Cal.App.4th 129, 146 (>Jackson).)  “Generally, when reviewing a motion to
suppress evidence, ‘we must accept the trial court’s resolution of disputed
facts and its assessment of credibility [citation],
but, the issue whether, under the facts found, a seizure or search was
unreasonable is a question of law, as to which the appellate court is bound to
exercise its independent judgment.[href="#_ftn2"
name="_ftnref2" title="">[2]]  [Citations.]’ 
[Citation.]”  (Zepeda, supra, 87 Cal.App.4th
at p. 1192.)

It is apparent to us that a search conducted by wiretap is
reasonable under the Fourth Amendment as a matter of law if the wiretap was
authorized and conducted in full conformity with the federal and state wiretap
statutes.  (See Jackson, supra, 129
Cal.App.4th at p. 146 [stating that in the context of motions to suppress
wiretap evidence, “[t]he analysis . . . focuses on violations of the statutory
procedures and not on constitutional violations, because while it is possible
to violate a core principle of the [wiretap] statute without violating the
Fourth Amendment it would not seem possible to violate the Fourth Amendment without
also violating a core statutory principle.]”.) 
The dispositive issue here, then, is whether there was an adequate
showing of necessity.  The record
establishes that there was.

We reject defendants’
assertion that “Ferrante’s declaration failed to show that ordinary
investigative procedures, employed in good faith, would likely be ineffective
in the particular case.”  In his 49-page
declaration, Ferrante described conventional investigative techniques that had been
used with only limited success in the 10-month investigation.  During a canvass of the area on the day after
the attack, he learned that Godinez had heard what sounded like a beating with
bats and had “observed from a distance the individual . . . being beaten with a
bat.”  Godinez had “observed a subject
run to the point of attack . . . and exclaim, ‘What the fuck?’ ” 
Godinez saw “three to four attackers in all.”  He “did not get a good look at [them]”
because it was dark, but he recalled that one of the fleeing attackers was
riding a black BMX bicycle.  In a
subsequent canvass, another neighbor told Ferrante that “[Torres] and
[Flores],” two “totally unsupervised” brothers who “acted like gang members,”
lived in the “back house” across the street from the scene.  The house’s owner said it had been vacant
since the attack.  Ferrante learned that
Torres was on probation with search and gang conditions. 

In February 2006, Matos admitted having seen Torres and
Flores across the street from her house around 6:00 p.m. on the night of the
attack.  She admitted “continuous
contact” with Torres after the attack and gave Ferrante his phone number.  John Kerestesy, who lived next door to Matos,
said Flores told him two days after the attack that Torres and a friend had “
‘beaten up’ a guy” in front of their house and that Flores had “joined” the
attack.  Kerestesy provided Flores’s
phone number. 

Torres refused to be interviewed, and his whereabouts were
unknown.  Flores was interviewed three
times.  He denied involvement.  His mother ended his second interview when
Ferrante began questioning him about inconsistencies in his statements.  A search of Flores’s residence uncovered “no
evidence pertinent to this investigation.” 
When Flores was questioned a third time, he told police that Kerestesy
had told him on the Friday after the attack “that Kerestesy had beaten
[Trujillo] because Kerestesy believed that [Trujillo] was responsible for
stealing his . . . car on New Year’s Day.”  


Police met with Neri numerous times and with his assistance
prepared a sketch of the man on the bicycle. 
In February 2006, Neri tentatively identified Cesar Galeana from a photo
lineup as the man on the bicycle.  After
several searches, police eliminated Galeana as a suspect.  In March 2006, Neri tentatively identified
Kerestesy from a different photo lineup as the attacker with the bat.  After a search of Kerestesy’s residence and a
“lengthy” interview, police eliminated him as a suspect. 

In April 2006, police seized Torres’s cell phone and found a
digital photo that matched Neri’s description of the bat-wielding
attacker.  The photo was associated with
a phone number for “Eddy.”  A search
warrant for phone records identified “Eddy’s” phone number as Sample’s.  A police records check turned up a
description but no photograph. 

Re-interviewed in October 2006, Matos admitted calling
Torres after each of her interviews but said she had lost contact with
him.  She showed police the brothers’
MySpace pages, from which police obtained a link to Sample’s MySpace page.  All three MySpace pages referenced Norteño
gangs. 

Seeking a current photo of Sample, police conducted
surveillance, and school officials identified him and Miller from the
surveillance photos.  A police records
check revealed that Miller had been stopped by police in December 2005 and that
he had been riding a black BMX bicycle. 
Torres’s cell phone contained a phone number for a “D_Miller,” and
re-examination of phone records obtained by search warrant revealed many calls
between Torres, Sample, and Miller on the day after the attack and after each
of Matos’s interviews.  There was only
“limited” telephone contact between Torres and Sample before the attack, “but
contact . . . occurred daily” from the day after the attack until February 3,
2006, when Torres’s cell phone number was deactivated.   

On October 17, 2006, school officials gave Ferrante “current
school-generated photograph[s]” of Sample and Miller.  Two days later, police showed Neri new photo
lineups, and he “immediately” identified Sample as “the one with the bat” and
Miller as “the kid on the bike.”  During
the drive to the police station to memorialize his identifications, however,
Neri “appeared nervous and emotional.” 
“He asked if the subjects in the photographs . . . were members of
gangs.  [He] then slumped down in his
seat in the vehicle . . . .”  At the
station, Neri “appeared even more nervous than
before. . . .  [He] stated
that he was not sure [of the identification], as it was in the afternoon . . .
and he could not see that well.” 
Although Neri ultimately selected Miller’s and Sample’s photos, he
equivocated about both, stating with respect to Miller’s, “I believe that is
him, but like I just said, I’m not sure,” and noting with respect to Sample’s
that the attacker with the bat “was wearing a hat.  He looks a little like this guy.” 

“I believe the attack . . . to be gang-related,” Ferrante
declared.  “Jorge Trujillo was a victim
of circumstances:  Wrong place; wrong
color . . . [Trujillo] looked the part of a Sureno
gang member—a dress and look not conducive to the Norteno climate that existed in that neighborhood.”  There was probable cause to believe Torres,
Flores, Sample, and Miller murdered Trujillo, Ferrante declared, but “the
evidence, as presently known, is insufficient to convict any of [them] of
murder beyond a reasonable doubt . . . .”  “[T]he communications sought to be
intercepted will provide the additional evidence necessary to charge [Torres],
[Flores], [Sample], and/or [Miller] with the murder of [Trujillo].” 

We conclude that Ferrante’s declaration established the
requisite necessity.  His detailed
recitation of the 10-month investigation was more than sufficient, in our view,
to show that “normal investigative procedures ha[d] been tried and . . .
failed. . . . ”  (§ 629.52, subd.
(d).)  The declaration explained that the
crime scene had “yielded no evidence of forensic analytical value.”  The neighborhood had been canvassed
“numerous” times, and “exhaustive” interviews had been conducted.  “Numerous” search warrants had been executed
and “as many as six physical locations” searched, “including the residences of
[Torres] and [Flores].”  Phone and other
records had been obtained by search warrant. 
Surveillance had been conducted “on more than ten occasions,” and while
it had established the identity of one suspect and the current residences of
two, it had produced “no real evidence [of] the crime itself.”  Rewards for information, publicized in the
media and by flyers distributed door-to-door in the neighborhood where the
attack occurred had produced “no additional witnesses or new information.”  After 10 months, there were no further
“worthy investigative leads to explore.” 


This showing alone was sufficient to establish the requisite
necessity.  (Zepeda, supra, 87
Cal.App.4th at p. 1204.)  As this court
has explained, “[b]ecause section 629.52, subdivision (d), like [the analogous
federal provision], is ‘worded in the disjunctive, the government may establish
the need for a wiretap by showing either (i) that normal investigative
procedures have been tried and failed, or (ii) that normal investigative
procedures, though not yet tried, “reasonably appear” to be either “unlikely to
succeed if tried” or “too dangerous.” 
[Citation.]  In reality, this
gives the government three alternative ways to establish the need for a
wiretap.’ ”  (Zepeda,
at p. 1204, quoting U.S. v. Smith (4th Cir. 1994) 31 F.3d 1294, 1298,
fn. 2.)

Here, in addition to describing conventional methods that
had been tried with little success, Ferrante also described procedures that had
not been utilized because they reasonably appeared to be “unlikely to succeed
if tried” or “too dangerous.”  (§ 629.52,
subd. (d).)  He explained that pen registers
and trap and trace deviceshref="#_ftn3"
name="_ftnref3" title="">[3] do
not identify the callers or provide the contents of the traced
communications.  “For that reason, this
investigation would be better served if pen registers and trap and trace
devices are installed and used in conjunction with, rather than in lieu of, [wiretaps]
. . . [and] I make separate application for an order authorizing [pen registers
and trap and trace devices].”  Ferrante
also declared that he did not know of any confidential informants who could
furnish additional information, and attempts to develop informants would not be
safe, given gang members’ “common practice” of using violence to intimidate and
silence those able to testify against them. 
Gang members’ mistrust of “ ‘outsiders’ ” (particularly when the gang is
involved in ongoing or recent criminal activity) made the use of undercover
agents both impractical and unsafe, since the agents would be subjected “to the
same acts of violence” that gangs perpetrate on other potential witnesses.  Initiation of grand jury proceedings might
jeopardize the investigation, “as there is always the potential that
information disclosed to testifying witnesses . . . may be leaked,” and it was
also “likely” that the targets of the investigation, if called before a grand
jury, would exercise their Fifth Amendment rights or testify untruthfully.  Police had not interviewed Sample and Miller
or searched their residences because contact with them “at this point would
only serve to alert them that they are targeted suspects . . . , likely causing
them to flee their residences if not the area . . . .”  In sum, Ferrante’s declaration was more than
sufficient to establish necessity.  (>Zepeda, supra, 87 Cal.App.4th at p. 1204.)

Defendants argue, however, that Ferrante’s statement that
conventional investigative techniques had failed to produce sufficient evidence
to charge defendants was
“untrue.”  They claim Neri’s positive
identifications were “more than enough evidence” to charge defendants, “particularly when combined with the other
evidence Ferrante had gathered . . . .” 
The argument lacks merit.

As an initial matter, the standard is not whether the
investigation has produced sufficient evidence to charge a defendant.  “[A]
wiretap can be necessary if it gives the government the ability to ‘develop an
effective case.’ ”  (United
States v. McGuire (9th Cir. 2002) 307 F.3d 1192, 1198 (McGuire).)  An effective
case, the McGuire court explained,
means “evidence of guilt beyond a reasonable doubt, not merely evidence
sufficient to secure an indictment.”  (>Ibid. [rejecting argument similar to
defendants’ as “weak”].)  Moreover,
defendants’ focus on Ferrante’s statement about charging defendants ignores statements elsewhere in Ferrante’s
declaration that he believed “the evidence, as presently known, [was]
insufficient to convict any of the
Target Subjects of murder beyond a reasonable doubt . . . .”  (Italics added.) 

We disagree with defendants’ assertion that conventional
investigative techniques had produced “more than enough” evidence.  In our view, Ferrante’s declaration, taken in
its entirety and interpreted “in a practical and commonsense fashion,”
established that conventional methods had yielded insufficient evidence to
develop an effective case.  (>Leon, supra, 40 Cal.4th at p. 385; McGuire,
supra, 307 F.3d at pp. 1197-1198.) 
As Ferrante explained, Neri’s identification of defendants as the two
attackers was, after multiple interviews, “tentative at best.”  Neri had been “hesitant” from the beginning
to provide information, and it was “obvious” that he was “frightened.”  “In fact,” Ferrante declared, Neri “stated
that he was afraid of retaliation from the attackers and/or their friends
should he share his knowledge . . . .”  Neri did not recognize anyone in the first
photo lineup.  Shown the same lineup a
second time, he tentatively identified Galeana as the attacker on the
bicycle.  Shown a different photo lineup
several weeks later, he tentatively identified Kerestesy as the attacker with
the bat.  Police eliminated both as suspects. 

Shown another photo lineup six months later (the day after
police obtained recent photos of defendants), Neri “immediately” identified
Sample as the attacker with the bat and Miller as the attacker on the
bicycle.  But he started equivocating at
the police station, claiming that he was “not sure” and that he had not been
able to “see that well.”  “The positive
identifications,” Ferrante declared, “had now been reduced to tentative at
best, reasonably likely due to [Neri’s] fear of retaliation . . . .”  Neri remained nervous even after he made the
identifications.  Refusing to make eye
contact, he informed the officers that his mother was ill and that his father
had asked him to return to Mexico to help with her care.  His father was also in poor health, Neri
added.  Thus, it was by no means certain
that Neri would be available to testify at trial, and even if he was, it was
not certain he would positively identify defendants in open court.  Under these circumstances, we cannot agree
that Neri’s positive identifications provided “more than enough evidence to
charge” and convict defendants.  (McGuire,
supra, 307 F.3d at p. 1198; >United States v. Brone (9th Cir. 1986)
792 F.2d 1504, 1506.)  There was no
useful physical or forensics evidence linking them to the crime, and Godinez,
the only other eyewitness, had been farther away than Neri and had not gotten a
good look at the attackers. 

Defendants also fault Ferrante for not interviewing Sample
or Miller.  As Ferrante explained in his
declaration, however, such interviews were unlikely to prove useful given the
“communication pattern” that Torres and defendants had developed since the
murder, which strongly suggested “a coordinated effort to maintain a consistent
version of events.”  Defendants dismiss
this statement as “nothing but speculation,” but Matos admitted calling Torres
after each of her police interviews, and telephone records obtained by search
warrants showed that each police contact with Matos “resulted . . . in an
ensuing phone call from [Matos] to [Torres], who, in turn, calls [Sample], who,
in turn, calls [Miller], triggering a series of phone conversations amongst
Torres, Sample, and Miller.”  Ferrante’s
declaration also established a foundation for his “coordinated effort”
conclusion.  He explained, based on his
training and experience, his interactions with fellow officers and detectives
working gang-related cases, and his discussions with gang members, “that
perpetrators of homicide and other violent crimes, gang-related or otherwise,
frequently freely discuss their criminal deeds with co-participants . . . .  Some do so seeking help from detection or
apprehension by the authorities . . . . 
Topics discussed . . . include the current state of the criminal
investigation, ‘tracks’ that need to be ‘covered,’ and coordination of stories
to be told to the authorities if contacted and/or arrested.”  Ferrante’s explanation adequately explained
why interviewing defendants “reasonably appear[ed] . . . to be unlikely to
succeed if tried . . . .”  (§ 629.52,
subd. (d); see McGuire, >supra, 307 F.3d at pp. 1197, 1199
[necessity shown notwithstanding limited interviews of witnesses where “the
only persons knowledgeable about the content of the defendants’ transactions
were the defendants themselves, and the
defendants had limited incentive to cooperate”], italics added.) 

Defendants also challenge Ferrante’s statement that efforts
to interview them would “likely” have caused them to flee.  We are not persuaded by their argument that
“youthfulness” and “family ties to San Jose” made flight unlikely.  Ferrante’s declaration noted Torres’s “sudden
move” from his former residence across the street from the scene of the
attack.  It was not inconceivable that
defendants, who remained in telephone contact with Torres, might also flee.  At 15 and 16, they were not too young to take
care of themselves.

Defendants argue that Ferrante should have interviewed
Flores a fourth time, using the police artist’s sketch to “pressure” him.  Ferrante explained, however, that Flores’s
previous lies and generally unreliable and internally inconsistent statements
made it unlikely that a fourth interview would uncover useful information.  This was a sufficient explanation.  The wiretap statutes “[do] not mandate the
‘indiscriminate pursuit to the bitter end of every nonelectronic device . . .
to a point where the investigation becomes redundant or impractical . . . .’ â€ 
(United States v. Bailey (9th
Cir. 1979) 607 F.2d 237, 242.) 

We conclude that Ferrante’s declaration more than satisfied
the “necessity” requirement of the wiretap statutes.  On the facts presented, the issuing judge
could reasonably have concluded that “[n]ormal investigative procedures ha[d]
been tried and ha[d] failed or reasonably appear[ed] either to be unlikely to
succeed if tried or to be too dangerous.” 
(§ 629.52, subd. (d); 18 U.S.C. § 2518(3)(c).)  Where, as here, defendants do not challenge
the issuance of the wiretap order on any other ground, it follows that the
wiretaps were authorized in compliance with the governing statutes.

Defendants’ claims of Fourth Amendment error parallel their
claims of statutory error, as both are entirely founded on the alleged
inadequate showing of necessity. 
Defendants do not claim that the wiretap searches were unreasonably
conducted.  Because the issuance of the
wiretap order and the execution of the wiretap searches complied with the
governing statutes, defendants’ Fourth Amendment rights were not violated.  (See Jackson,
supra, 129 Cal.App.4th at p. 146.)

 

B.  Motion to
Suppress Statements Obtained in Alleged Violation of Miranda

Sample challenges the denial of his motion to suppress
statements from his December 6, 2006 police interview as “the unconstitutional
product of a custodial interrogation without Miranda warnings.”  (Boldface
& capitalization omitted.) 

1.  Background

Ferrante, detective Sean Pritchard, and Sample testified at
the suppression hearing, and an audio recording of their December 6, 2006
interactions at Sample’s high school, during the ride to the police station,
and in the interview was marked as an exhibit. 
Viewed in the light most favorable to the judgment, that evidence and
the officers’ and Sample’s testimony at the hearing on the motion established
that the officers went to Sample’s school and asked that he be called to the
office.  They introduced themselves as
homicide detectives, remarked that he probably knew they had been talking to
his friends about Torres and Flores, and said it was not surprising they wanted
to talk to him.  They asked him to
accompany them to the police station for half an hour or so, after which they
would drive him home.  Ferrante assured
Sample that he was not under arrest and that they did not intend to arrest him
that day but just wanted to talk to him. 


Sample said he had to call his mother first.  “Sure. 
Give her a ring,” Ferrante replied. 
After Sample tried without success, Pritchard said, “Why don’t we go
down, and maybe we can call her in a little bit.  All right?” 


Sample rode in the front passenger seat of the detectives’
unmarked vehicle.  He was not handcuffed,
and the car doors were not locked. 
Conversation during the 15-minute ride consisted largely of small talk
about Sample’s family, girlfriend, and school activities. 

At the station, Sample was offered water or a soda and shown
to an interview room.  The door to the
room was closed but not locked during the interview.  Pritchard began by snapping Sample’s photo,
explaining that they always took people’s pictures “just to remind ourselves
who they are.”  He then repeated what
Ferrante had said at the high school—that Sample was not under arrest.  Sample responded affirmatively when asked if
he understood.  Pritchard obtained some
personal information and when he learned that Sample had his cell phone with
him, asked, “Could you do me a favor and turn it off?” 

Commenting that he would expect Sample to have talked to his
friends about their police interviews, Ferrante asked Sample to relate what he
had heard.  Sample said he knew there had
been a murder, supposedly committed by Torres. 
He knew that his own and Miller’s names had come up, and that police had
pictures that looked like both of them. 
He also knew that his friends had provided DNA samples. 

Sample said he had met Torres “one random day” two years
earlier but had stopped hanging out with him after Torres started stealing.  Torres had shown up two days after his
release from jail, and Sample’s mother had told him not to come around
anymore.  That had been at the beginning
of the year, and Sample had not seen Torres since then.  He had encountered Flores on only three or
four occasions and had not spoken to him in a long time­­.  Sample had never been to Torres’s house, and
except for one trip to the movies on Second Street, had never gone downtown or
out toward Santa Clara Street or Highway 101 with Torres. 

Sample said he never went beyond 4th Street on foot, as that
was gang territory.  He knew gang members
in his neighborhood but did not hang out with them, preferring to skateboard
and ride dirt bikes with Garewal.  Most
gang members in his neighborhood claimed Norteño.  Sample had seen some gang graffiti but did
not know what it meant.  Although Torres
and Flores never wore gang clothing around him, Sample guessed that they were
gang members.  He had noticed four dots
tattooed on Torres’s hand after Torres’s release from jail.  Asked about being “the only white guy” in the
group, Sample said he fit in with everyone.

Sample said Miller had called him after Miller’s interview
and told him police would probably interview Sample soon.  Sample knew police had interviewed Miller’s
girlfriend Samantha Mendez first, then Garewal, and then Miller.  He learned about the investigation from
Mendez after her interview, but claimed not to know where the attack occurred.  Mendez had told him about the sketches, and
Miller had told him they looked exactly
like Sample and Miller.  When Ferrante
said it was a weird coincidence that Sample had been hanging out with Torres
and police had sketches that looked like Sample and Miller, Sample replied that
he was freaked out by that, but he knew for a fact that he had not been with
Torres.  Ferrante asked Sample to think
“really hard” whether there was any reason for him to have been “on, say, 22nd
Street” with Torres “[b]ack in like, that January [of 2006].” 

“Actually, yeah, I completely forgot about that,” Sample
replied, “but there was one time I went down there with him.  I completely, one night he, yeah, it was me
and [Miller] and [Torres] and I’m not sure if [Garewal] was with us or not.”  “[Torres] was like, ‘You wanna walk with me to
my house, or whatever over on,’ you know, yeah, I don’t know if it’s 19th or
22nd.  Where’s the Wienerschnitzel at
right there?”  Sample said Torres had an
Xbox, “and he was gonna bring it to our house or whatever.”  Sample, Miller, and Garewal waited outside
the house while Torres went inside, and when Torres came outside, Flores was
with him, and they all started walking to the Wienerschnitzel.  “[A]nd then we were gonna supposedly walk
back . . . ,” but Torres and Flores changed their minds, so Miller called his
brother Arthur, who picked up Miller, Garewal, and Sample at the
Wienerschnitzel and drove them home. 
This was “like, in the beginning of the year.”  It was “late at night.”  That was “[t]he only time” Sample had ever
been to Torres’s house.  It was “the only
time” he had “ever been in that neighborhood, ever.” 

Sample insisted that nothing happened while he, Miller, and
Garewal waited outside Torres’s house. 
Although they all had BMX bicycles, they were on foot that night.  After walking all the way from Luther Burbank
School to Torres’s house, they did not want to walk home, so they called
Miller’s brother, and he drove them home. 


About 48 minutes into the interview, the detectives showed
Sample two sketches, the first prepared from Neri’s description of the attacker
on the bicycle, and the second drawn from a photograph of Sample.  Sample opined that the first sketch did not
look all that much like Miller, except for the long curly hair.  He was “shocked” by his own sketch.  But he insisted that he had nothing to do
with the attack, suggesting that there had to be someone else out there who
looked like him.  He had never once been
in a fistfight.  He was not a violent
person.  Asked if he had ever “hit anyone
with anything,” he responded, “Nothing at all, with a bat, nothing.” 

Sample agreed to provide a DNA sample and did so after a
break lasting about 10 minutes. 
Pritchard then asked him to describe again what had occurred at Torres’s
house.  At the detectives’ request,
Sample drew a diagram as he repeated that he and his friends had walked to
Torres’s house and waited just a minute. 
When Torres and Flores decided not to go with them, Sample, Miller, and
Garewal walked to the Wienerschnitzel and called Miller’s brother for a
ride.  Sample was completely sober that
night.  He insisted he had told the
detectives everything he knew.  The
two-hour interview ended with them telling him, “We’re ready to go.” 

The trial court denied the suppression motion, finding that
the December 6, 2006 interview was a noncustodial encounter that did not
require Miranda warnings.  “The court has taken into account the
totality of the circumstances surrounding the questioning with the ultimate
inquiry being whether there was a formal arrest or restrain[t] of freedom of
movement of the degree associated with [a] formal arrest.  [¶] 
Without citing all the specific circumstances, the court concurs with
the [statement of facts] cited by [the district attorney] on pages four, five
and six of his brief, and also relies heavily on the contents of the C.D. of
the [December 6, 2006] contact between the defendant and the officers.  The defendant was advised on more than one
occasion that he was not under arrest. 
That they had no plans to arrest him. 
And all they wanted to do was to talk to him.  After which he would be taken home which was
what occurred.  [¶]  And this was also consistent with what the
defendant acknowledged had occurred with other friends.  [¶]  So
the December 6th, the court will deny that motion based on the >Miranda argument that was made.” 

2.  Analysis

Sample argues that “[b]y the time the detectives questioned
[him] about the fake sketch,” he was in custody for purposes of >Miranda. 
We disagree.

“An interrogation is custodial, for purposes of requiring
advisements under Miranda, when ‘a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way.’  [Citation.]. 
Custody consists of a formal arrest or a restraint on freedom of
movement of the degree associated with a formal arrest.  [Citations.] 
When there has been no formal arrest, the question is how a reasonable
person in the defendant’s position would have understood his situation.  [Citation.] 
All the circumstances of the interrogation are relevant to this inquiry,
including the location, length and form of the interrogation, the degree to
which the investigation was focused on the defendant, and whether any indicia
of arrest were present.  [Citation.]”  (People
v. Moore (2011) 51 Cal.4th 386, 394-395 (Moore).)  “No one factor is
dispositive.  Rather, we look at the
interplay and combined effect of all the circumstances . . . .”  (People
v. Aguilera (1996) 51 Cal.App.4th 1151, 1162.)

“ ‘When reviewing
a trial court’s determination that a defendant did not undergo custodial
interrogation, an appellate court must “apply a deferential substantial
evidence standard” [citation] to the trial court’s factual findings regarding
the circumstances surrounding the interrogation, and it must independently
decide whether, given those circumstances, “a reasonable person in [the]
defendant’s position would have felt free to end the questioning and leave”
[citation].’  [Citation.].”  (Moore,
supra, 51 Cal.4th at p. 395.)

Here, substantial evidence supports the facts found by the
trial court.  Sample’s own statements
during the interview established that he knew before his
December 6, 2006 interview that detectives had interviewed his
friends without arresting them, that there was a police artist’s sketch that
looked exactly like him, and that he
would probably be interviewed soon.  The
detectives’ testimony and the audio recordings of their December 6, 2006
exchange with Sample at his high school established (1) that school administrators
were present when the detectives spoke to Sample, (2) that Ferrante assured him
he was not under arrest, that they did not intend to arrest him that day but
just wanted to talk to him for half an hour or so and that they would drive him
home afterwards, (3) that the detectives asked
rather than told Sample to accompany them to the police station, (4) that when
he said he needed to call his mother first, he was permitted to do so, and (5)
that he chose not to leave a message when his calls went unanswered. 

The detectives’ testimony and the audio recording of the
ride to the police station established (1) that Sample was driven there in an
unmarked vehicle, (2) that he rode in the front passenger seat, (3) that he was
not handcuffed, (4) that the car doors were unlocked, and (5) that upon arrival
at the station he was offered water or a soda.

The detectives’ testimony and the audio recording of the
interview establish (1) that Sample was shown to an interview room in the
homicide unit, (2) that the door was closed but not locked during the
interview, (3) that Sample was again assured that he was not under arrest, (4)
that he had his cell phone with him and that there were two breaks during which
he was left alone and could have called whomever he chose, (5) that the
interview was conducted in a respectful, nonaggressive, and nonthreatening
manner, (6) that the detectives reiterated several times that they would drive
Sample home afterwards, (7) that Sample agreed to provide a DNA sample, (8)
that the detectives thanked him for talking to them, and (9) that at the end of
the two-hour interview, they drove him home. 


We think a reasonable person in Sample’s position would have
felt free, under these circumstances, to end the questioning and leave.  (Moore,
supra, 51 Cal.4th at
p. 395.)  Sample was told twice that
he was not under arrest, and he was also assured that police did not intend to
arrest him that day.  The door to the
interview room was not locked.  Although
Sample was asked at the start of the interview to “do [Pritchard] a favor” and
turn off his cell phone, it was not taken from him, and there were at least two
breaks when Sample was left alone and could have called anyone he wanted to
call. 

Sample testified at the hearing, however, that he felt he
had no choice but to go to the police station and that once he got there, “I
sure didn’t think I could just get up and leave.”  “I mean, . . . I [didn’t] know what could
happen, you know, like, they can shoot me, or I don’t know what.”  But his subjective understanding is
irrelevant.  (Stansbury v. California (1994) 511 U.S. 318, 323 (>Stansbury); In re Kenneth S. (2005) 133 Cal.App.4th 54, 64 (>Kenneth S.).)  “The objective circumstances of the
interrogation, not the subjective intention of the interrogating officer or the
subjective understanding of the person being questioned, is evaluated in
determining whether the person was in custody . . . .”  (Kenneth
S., at p. 64.)

Acknowledging the existence of circumstances that could tip
the balance against a finding that he
was in custody, Sample characterizes “Ferrante’s pointed use of the fake
witness sketch” as the factor that “must tip the court’s independent review in
[Sample’s] favor . . . .”  Being
confronted with evidence that he had participated in the assault, Sample
argues, would have “wipe[d] out” the officers’ previous assurances and rendered
it “decidedly unreasonable” for him
to believe he was free to terminate the questioning and leave. 

The United States Supreme Court rejected a similar argument
in Oregon v. Mathiason (1977) 429
U.S. 492 (Mathiason).  Mathiason went to the police station for an
interview.  He was told he was not under
arrest, taken into an office, and questioned about a burglary.  (Id.
at 493.)  The door was closed during the
interview.  (Ibid.)  Police told Mathiason
they believed he was involved in the burglary, and they also told him, falsely,
that his fingerprints had been found at the scene.  (Ibid.)  He confessed and was convicted of
burglary.  (Id. at pp. 492-493.)  The
Oregon Supreme Court reversed the conviction, holding that Miranda warnings should have been given.  (Id.
at p. 492.)

The United States Supreme Court reversed, holding that a
noncustodial situation “is not converted to one in which Miranda applies simply because . . . the questioning took place in
a ‘coercive environment’ ” or
“because the questioning takes place at the station house, or because the
questioned person is one whom the police suspect.”  (Mathiason,
supra, 429 U.S. at p. 495.)  The officer’s false statement about
discovering Mathiason’s fingerprints at the scene, moreover, had “nothing to do
with whether [Mathiason] was in custody for purposes of the >Miranda rule.”  (Id. at p. 496; see Kenneth S.,
supra, 133 Cal.App.4th at p. 65
[“that Detective Carranza told respondent that he had information that
respondent was involved in the robbery was insufficient by itself to constitute
custody and to countervail these other factors.”].)

We cannot agree with Sample’s assertion that the fake sketch
tips the balance here.  Sample knew
before the interview that police had sketches of him and Miller, and Miller had
told him that the sketches looked “exactly” like the two of them.  Yet Miller had been allowed to go on his way
after his interview.  A reasonable person
in Sample’s position would have no reason to believe that his interview would
end any differently than all of his friends’ interviews had ended, particularly
since the officers told him midway through the interview that they wanted to
wrap it up “and get you out of here.” 

Relying on J.D.B. v.
North Carolina (2011) ___ U.S. ___ [131 S.Ct. 2394] (J.D.B.), Sample argues that his youthfulness heightened the
significance of factors (such as the fake sketch and his inability to contact
his mother) mitigating in favor of a finding of custody.  In his reply brief, he suggests that his age
might also warrant discounting those factors that would otherwise favor a
finding that he was not in custody. 

In J.D.B., the
United States Supreme Court held that the inclusion of a child’s age in the
custody analysis is “consistent with the objective nature of that test.”  (J.D.B.,
supra, 131 S.Ct. at p. 2406.)  But that is not to say, the court qualified,
that “age will be a determinative, or even a significant, factor in every
case.”  (Ibid.)  In this case, we are
convinced by the totality of the circumstances that Sample’s age (16 and a half
at the time of the interview) was not a significant factor.  We have listened to the audio recordings, and
we agree with the trial court’s assessment that the detectives conducted their
entire encounter with Sample in a respectful, nonaggressive, and nonthreatening
manner.  The tone of the recordings is
conversational throughout.  Sample freely
and even volubly responded to the officers’ questions, and we detect no anxiety
in his voice.  The tone and tenor of the
conversation did not change after the officers showed Sample the fake
sketch.  Although Sample told the
officers he was “shocked” by the resemblance and that he had been worried about
the sketch, he also calmly explained that there had to be someone else who
looked like him, since nothing at all had happened when he and his friends were
outside Torres’s house that night.  The
trial court did not abuse its discretion in denying Sample’s motion to suppress
his December 6, 2006 statements.    

 

C.  Cumulative Error

Sample complains that the cumulative effect of the asserted
wiretap and Miranda errors denied him
due process.  Since we have found no
error, his claim fails.  (>People v. Cooper (1991) 53 Cal.3d 771,
839.)

 

D.  Exclusion of “Substantial Portions” of
Miller’s Police Interview

Miller claims the exclusion of “substantial portions” of his
December 13, 2006 police interview violated Evidence Code section 356 and his
rights to present a complete defense, to confront witnesses, and to a fair
trial. 

1.  Background

Interviewed by police on the day of his arrest, Miller
initially denied having been at Torres’s house or downtown with him in January
2006.  He eventually admitted taking “a
very long walk” downtown with Torres and others to pick up an Xbox to
sell.  They walked to a house that Torres
said was his mother’s or his aunt’s. 
Behind it was a “little shack thing” that Torres said was his room.  They waited there for “about five minutes”
while Torres went into the house.  The
room “smelled,” and when Torres came back, “we said we wanted to leave.”  Torres called someone about buying the Xbox
“but they didn’t wanna buy it no more.” 

In the second part of the interview, which followed a break
in the questioning, Miller told police that he and his friends had walked “for
a little bit” after leaving Torres’s house “[a]nd then there was this guy and
[Torres] ran up to him or something.” 
Miller “was watching the whole time” as Torres beat the victim with a
bat and Sample kicked or punched him. 
Torres and Flores went home, and Miller, Sample, and Garewal called
Miller’s brother for a ride and “got picked up at Wienerschnitzel’s.” 

On learning that the People planned to introduce the first
part of the interview, Miller moved in limine to admit the second part (Evid.
Code, § 356), arguing that the “small and misleading” first part created
the “clear” impression that he “was present” during the attack but was being
“evasive” or “lying” to the police “about what occurred at this time and place
and his role in those activities.” 
Focusing on Miller’s statement that after leaving Torres’s house, the
group went to the Wienerschnitzel and called Miller’s brother for a ride,
Miller’s counsel argued that including that statement left “a gap” because “we
are talking about a period of time when the implication is [that Miller] saw
nothing.”  After the People agreed to
redactions eliminating that gap, the court denied the motion. 

On several subsequent occasions, Miller asked the court to
admit the second part of the interview based on Evidence Code section 356, >Aranda-Bruton,href="#_ftn4" name="_ftnref4" title="">[4]
and/or his right to effectively cross-examine Torres.  The court denied those requests, and the
audio recording of the first part of Miller’s police interview was played for
the jury. 

2.  Analysis

Miller contends that the second part of his police interview
“had to be admitted” to dispel “the obvious inference that he had not only
denied involvement but had denied being present” during the assault on Trujillo.  We disagree.  


Evidence Code section 356 provides that “[w]here part of an
act, declaration, conversation, or writing is given in evidence by one party,
the whole on the same subject may be inquired into by an adverse party; when a
letter is read, the answer may be given; and when a detached act, declaration,
conversation, or writing is given in evidence, any other act, declaration,
conversation, or writing which is necessary to make it understood may also be
given in evidence.”  (Evid. Code,
§ 356.)  â€œ ‘The purpose of this section is to prevent the use of selected
aspects of a conversation . . . , so as to create a misleading impression on
the subjects addressed.  [Citation.]  Thus, if a party’s oral admissions have been
introduced in evidence, he may show other portions of the same interview or
conversation, even if they are self-serving, which “have some bearing upon, or
connection with, the admission . . . in evidence.” ’ ”  (People v.
Williams (2006) 40 Cal.4th 287, 319 (>Williams).)  Parts of an interview that do not clarify or
explain the parts that were admitted, however, may be excluded in the court’s
discretion.  (Ibid.; People v. Williams (1975) 13 Cal.3d
559, 565 [although hearsay is not a valid objection to the admission of parts
of an interview under Evidence Code section 356, “[s]ection 356 is indisputably
‘ “subject to the qualification that
the court may exclude those portions of the conversation not relevant to the
items thereof which have been introduced.”
’  [Citations.]”].) 

Here, Miller’s assertion in the second part of the interview
that he merely watched Torres and Sample attack Trujillo had no “ ‘ “bearing upon, or connection with,” ’ ” his statement in the first part of
the interview that he and others went to Torres’s house to pick up an Xbox that
Torres planned to sell.  (>Williams, supra, 40 Cal.4th at p. 319.) 
Although both statements arguably related to the same subject (broadly
defined as anything that happened in the vicinity of Torres’s residence that
January night), the second part of the interview was not “necessary to make
[the first part of the interview] understood . . . .”  (Evid. Code, § 356; People v. Gambos
(1970) 5 Cal.App.3d 187, 192-193 (Gambos).)  The time gap that Miller claimed made the
first part of the interview “misleading” had been eliminated by redaction, and
the first part of the interview as redacted was independently
comprehensible.  (See People v.
Barrick (1982) 33 Cal.3d 115, 131 & fn. 4 (Barrick) [post-arrest statement would have been admissible if necessary
to understand earlier pre-arrest statement, but earlier statement was found independently comprehensible], superseded by statute on another ground as stated
in People v. Collins (1986) 42 Cal.3d
378, 393; see also People v. Farley (2009)
46 Cal.4th 1053, 1103 (Farley) [“the
trial court did not abuse its discretion in concluding that the proffered
letters were not ‘necessary’ to the jury’s understanding of the letters
introduced by the prosecution . . . [but were instead] ‘independently
comprehensible’ on the relevant topics of defendant’s premeditation and intent
to kill.”].)  Accordingly, the trial
court did not abuse its discretion in excluding the second part of Miller’s
interview as unnecessary to make the first part of the interview understood.href="#_ftn5" name="_ftnref5" title="">[5]  (Evid. Code, § 356.) 

Miller next argues that the second part of the interview was
necessary to make Ferrante’s testimony about a recorded telephone call (in
which Miller and Sample discussed the police sketch) understood—i.e., to dispel
an inference that Miller never denied
involvement in the attack.  We
disagree.  The colloquy was not
misleading because the question was plainly limited to that particular recorded
telephone conversation:  “And neither one
of the individuals in that phone call,
either Eddie Sample or Daniel Miller, ever denied being involved in the
murder?”  (Italics added.)  “Not in
the phone call, no,” Ferrante responded. 
(Italics added.)  Because the
question and answer were independently comprehensible, the second part of
Miller’s interview was not necessary to clarify or explain them.  (See Barrick, supra, 33 Cal.3d at p. 131 & fn. 4; >Farley, supra, 46 Cal.4th at p. 1103.)

Miller next argues that the court’s “repeated rulings”
violated his constitutional right to present a complete defense and denied him
a fair trial by “preventing [him] from dispelling the innuendos that he had
lied to the police and that he was protecting his co-defendant.”  The argument lacks merit.  There were no innuendoes to dispel once the
first part of the interview was redacted—the misleading time gap had been
eliminated, only Miller and Torres were referred to by name, and pronouns and
other neutral terms (e.g., “you guys”) were used to refer to the entire group
or some subset of the five present that night.

Miller next argues that the exclusion of the second part of
the interview denied him due process.  We
reject the contention.  “As a general
matter, the ‘[a]pplication of the ordinary rules of evidence . . . does not
impermissibly infringe on a defendant’s right to name="SDU_1103">present
a defense.’  [Citations.]”  (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103; >People v. Lucas (1995) 12 Cal.4th 415,
464-465 (Lucas) [rejecting claim that
the exclusion of hearsay evidence amounted to a denial of due process].)  Here, there was no basis for admission of the
second part of Miller’s interview.  As
previously discussed, it was not admissible under Evidence Code section 356
because the first part of the interview was independently comprehensible.  (See Barrick, supra, 33 Cal.3d at p. 131 & fn. 4; >Farley, supra, 46 Cal.4th at p. 1103.) 
With Evidence Code section 356 unavailable as a basis for admission, the
second part of the interview was hearsay to which no exception applied.  (Evid. Code, § 1200; see >Gambos, supra, 5 Cal.App.3d at p. 192.) 
As such, it was properly excluded. 
Defendant’s