Opinion
A162395
11-02-2022
THE PEOPLE, Plaintiff and Respondent, v. JEFFREY ANDERSON, Defendant and Appellant.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 20-CR-007190A)
BURNS, J.
Jeffrey Anderson appeals after a jury convicted him of two counts of attempted murder (Pen. Code, §§ 187, subd. (a), 664),two counts of assault with a semiautomatic firearm (§ 245, subd. (b)), one count of shooting from a motor vehicle (§ 26100, subd. (d)), one count of shooting at an occupied motor vehicle (§ 246), and two counts of possessing a firearm as a felon (§ 29800, subd. (a)(1)). The trial court sentenced him to an aggregate prison term of 14 years and 4 months.
Undesignated statutory references are to the Penal Code.
Anderson raises numerous arguments-insufficiency of the evidence, instructional error, prosecutorial misconduct, and evidentiary challenges. He also contends the trial court violated his Sixth Amendment confrontation rights by requiring testifying witnesses to wear masks covering their mouths and noses. We agree with Anderson that the trial court gave an erroneous kill zone instruction. Because we conclude the error was prejudicial, we vacate one of his attempted murder convictions (count two). We remand for further proceedings on that count, but otherwise affirm.
Background
A.
On May 8, 2020, officers from the Oakland Police Department were surveilling the Nissan Rogue that Anderson was driving, using a global position satellite (GPS) tracking device. Undercover officers also followed the Rogue to confirm its location. Ershell Love rode in the Rogue's front passenger seat.
The GPS device tracked the Rogue's location and speed and sent that data, once every five seconds, to a server that police officers could remotely access. The locations could be viewed as color-coded dots on maps showing date, time, speed, and location. The GPS tracking data was admitted at trial.
About 10 minutes before the shooting, one of the undercover officers following the Rogue, Officer Blake Stephens, observed Anderson decrease his driving speed to 10-15 miles per hour in an area with a posted speed limit of 25 miles per hour. GPS tracking data corroborated Stephens's testimony. Stephens testified that prolonged slow driving is frequently a precursor to the commission of crimes. Stephens relinquished surveillance of the Rogue to the GPS tracker, which was being monitored remotely by Officer Chris Marie.
A few minutes before 8:00 p.m., surveillance video showed (via a partially obstructed view) that Anderson abruptly stopped the Rogue in the middle of an uncontrolled intersection on Plymouth Street, where it intersects with 85th Avenue. GPS tracking evidence showed the Rogue at the same intersection but driving four miles per hour. No traffic light or stop sign prevented Anderson from continuing through the intersection.
Anderson's car essentially blocked an Infiniti driven by Floyd Ray, which had stopped-perpendicular to the Rogue-at the stop sign on 85th Avenue where it intersects Plymouth Street. Jane Doe was a passenger in the Infiniti.
Almost simultaneously with Anderson's abrupt stop, the occupants of the two cars exchanged gunfire. "ShotSpotter" technology detected the sound of gunfire and alerted the police that shots were fired in approximately the same location where the Rogue and Infiniti had stopped. Officer Stephens heard approximately 10 to 12 total gunshots: three shots fired, followed by a pause, and then a further exchange of gunfire. Stephens could not tell how many guns were fired but said that "[i]t sounded like more than one gun was firing" in the latter exchange.
Two neighborhood residents also heard multiple shots fired in quick succession a few minutes before 8:00 p.m. The witnesses observed that two cars were involved-one that was stopped along 85th Avenue (at the stop sign) and another that was in the middle of the intersection (driving on Plymouth). Neither witness saw who fired the shots (or from which car).
The surveillance video and witness reports were consistent that the Rogue drove away immediately-as soon as the gunfire ceased. However, the Infiniti remained stopped at the stop sign on 85th Avenue, with its engine running. Ray and Doe exited the Infiniti, which had bullet holes in its windshield. A witness heard Ray ask Doe if she was okay. Then they retreated on foot down 85th Avenue.
B.
As officers responded and approached the intersection, they saw the Infiniti stopped at the stop sign, with its driver's door open, engine running, and multiple bullet holes in the windshield. There was also a bullet hole in the Infiniti's hood. About a minute after the shooting, an officer saw Ray run back to the Infiniti and move it out of the lane of traffic. Ray grabbed a bag from the car that appeared to have a gun inside, and then he jumped on the hood of the Infiniti, using his foot to smash the windshield. A third car pulled up and drove Ray away.
Later investigation showed that at least some of the bullet holes in the Infiniti's windshield were from bullets fired from inside the Infiniti. Stephens testified that, during the seven years he worked for the Oakland Police Department, he had never investigated a shooting that was initiated by someone firing through their own windshield.
About 10 minutes after the shooting, another police officer saw the Rogue roughly a five-minute drive away from the crime scene. A woman-Ventoysha Golson-was now driving it. Golson pulled over, opened both passenger-side doors, and brushed glass off the seats and floorboards. The officer then observed a white Toyota Solara approach and park. Anderson, Love, and Caprice McKinnis exited the Solara. After Anderson and Love spoke with Golson, the two cars left together. Golson continued to drive the Rogue. Anderson was sitting in the rear passenger seat of the Solara.
Minutes later, officers detained Anderson, McKinnis, Love, and Golson. The officers seized two semi-automatic firearms-a .40-caliber Glock and a .45-caliber Ruger from the rear passenger area of the Solara. Officers also observed that the Rogue's front passenger window had been shot out, and fragments of glass were inside the vehicle-indicating that someone fired into the Rogue.
C.
An officer responding to the shooting scene found three shell casings, a bullet, and broken window glass, in the intersection, on Plymouth Street. The bullet and shell casings were from a .45-caliber gun.
Eleven .40-caliber shell casings were found inside the Infiniti. Six were on the front passenger seat and five more were found on the passenger-side floor. This evidence indicated a .40-caliber gun had been fired outward from inside the Infiniti. Bullet fragments were also found inside the Infiniti.
The front passenger side of the Rogue also suffered bullet strike marks and one bullet hole. One bullet fragment was found inside the Rogue. There were a total of three shell casings inside the Rogue-two were .40-caliber and one was .45-caliber. One expended shell casing was found on the floor behind the driver's seat. There was also an expended shell casing behind the front passenger seat.
The parties stipulated that the eleven .40-caliber casings recovered from the Infiniti were all fired from a single firearm. The three .45-caliber casings recovered from the intersection were all fired from the Ruger found in the Solara. The single .45-caliber casing recovered from inside the Rogue was fired from that same Ruger. The two .40-caliber casings recovered from inside the Rogue were fired from the Glock recovered in the Solara.
The parties also stipulated that DNA collected from a blood stain on the Ruger matched Love's DNA. Anderson, Golson, and McKinnis were eliminated as contributors. DNA testing of swabs collected from the Glock was inconclusive.
D.
Anderson argued the People had not met their burden to prove beyond a reasonable doubt that Anderson himself fired a gun or that the shooting was not in self-defense.
The jury convicted Anderson of attempted murder of Ray (count one), attempted murder of Doe (count two), two counts of assault with a semiautomatic firearm (counts three &four), shooting from a motor vehicle (count five), shooting at an occupied motor vehicle (count six), and two counts of possessing a firearm as a felon (counts seven and eight). However, the jury found "not true" all of the charged firearm enhancement allegations-that Anderson personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) or personally used a firearm (§§ 12022.5, subd. (a), 12022.53, subds. (b)) in committing the first four counts. The trial court sentenced Anderson to an aggregate prison term of 14 years and 4 months.
Discussion
A.
Anderson argues the evidence is insufficient to support his convictions for two counts of attempted murder, two counts of assault with a semiautomatic firearm, shooting from a motor vehicle, and shooting at an occupied motor vehicle. We disagree.
1.
To convict for attempted murder, the prosecution must prove the defendant had a specific intent to kill and committed a direct but ineffectual act toward accomplishing the intended killing. (People v. Canizales (2019) 7 Cal.5th 591, 602 (Canizales).) Direct evidence of intent to kill is rare. Intent is ordinarily inferred from the defendant's actions and statements and the circumstances surrounding the crime. (Ibid.) Evidence of motive is probative of intent to kill, but not required. (People v. Houston (2012) 54 Cal.4th 1186, 1218.)
Under an aiding and abetting theory, the prosecution must prove that a defendant aided or encouraged the direct perpetrator with knowledge of the direct perpetrator's intent to kill and with the intent or purpose of facilitating accomplishment of the intended killing. (People v. Lee (2003) 31 Cal.4th 613, 624, superseded by statute on other grounds as stated in People v. Rodriguez (2022) 75 Cal.App.5th 816, 823-824.) In short-to be guilty of attempted murder as an aider and abettor-one must intend to kill. (Lee, supra, at p. 624; People v. McCoy (2001) 25 Cal.4th 1111, 1118.)
2.
Anderson first challenges the sufficiency of the evidence to support his conviction for attempted murder of Ray (count one).
The crux of his argument is that the jury, by finding the firearm enhancement allegations "not true," necessarily rejected the prosecutor's theory that Anderson was a direct perpetrator and must have found him guilty of attempted murder solely as an aider and abettor. He then suggests that we cannot assess the sufficiency of the evidence under a direct perpetrator theory and must conclude that the evidence he aided and abetted the attempted murder of Ray is insufficient. We are unpersuaded.
First, the jury's "not true" findings on the firearm enhancements do not require us to reverse Anderson's conviction so long as it is supported by substantial evidence. (People v. Miranda (2011) 192 Cal.App.4th 398, 405; accord, § 954.) "An inconsistency may show no more than jury lenity, compromise, or mistake, none of which undermines the validity of a verdict." (People v. Lewis (2001) 25 Cal.4th 610, 656.) The "not true" findings might also indicate that the jury may not have agreed on Anderson's role-actual shooter or aider and abettor-in the attempted murder of Ray. So long as a jury is convinced of a defendant's guilt, there is no requirement that they agree on the defendant's precise role. (People v. Santamaria (1994) 8 Cal.4th 903, 919.) Accordingly, notwithstanding any logical inconsistency, the question for us is simply whether substantial evidence supports the conviction under either theory. (See id. at p. 911; People v. Miranda, supra, 192 Cal.App.4th at pp. 405-407.)
There is evidence from which the jury could reasonably infer that Anderson fired one of the two semiautomatic guns later found in the getaway car. Three out of four of the shell casings from the Ruger were found in the street, which is consistent with evidence that Love fired that gun out the passenger side window. However, both shell casings from the Glock were found inside the Rogue. One shell casing was found on the floorboard under the driver's seat, where Anderson had been sitting.
Because shell casings are ejected to the right of semiautomatic firearms, this evidence supports a reasonable inference that Anderson fired the Glock-especially considering his admission that he had the Rogue professionally cleaned earlier that same day. If Love shot both guns, as Anderson suggests, we would expect to find all the casings either in the street or on the passenger side of the car.
The jury could reasonably infer that both Love and Anderson intended to kill Ray. In the minutes before the shooting, Anderson was driving very slowly as if looking for something, they had two loaded semiautomatic firearms at the ready, and a total of six rounds were fired from two semiautomatic guns towards the Infiniti Ray was driving immediately after they encountered it in the same intersection. Data retrieved from Anderson's cell phone also revealed that he made two phone calls to McKinnis-who later drove the Solara- less than 10 minutes before the shooting and about 10 minutes after the shooting. Golson also appeared after the shooting to drive and clean the Rogue.
The jury could infer from this evidence that Anderson and Love planned the shooting and that Anderson intended to kill Ray. (See, e.g., People v. Covarrubias (2016) 1 Cal.5th 838, 892.) That Anderson coordinated the efforts to flee and to separate himself and Love from incriminating evidence in the Rogue further supports the inference that Anderson intended to kill Ray.
Second, substantial evidence also supports Anderson's conviction under an aiding and abetting theory. It is well established that a defendant's knowledge and intent can be inferred from circumstantial evidence such as presence at the scene of the crime, companionship, and conduct before and after the offense. (In re Gary F. (2014) 226 Cal.App.4th 1076, 1080.)
As stated above, the evidence here indicates that this was a planned shooting. A reasonable trier of fact could infer that, even if Anderson did not fire the recovered Glock, he and Love planned to kill Ray and acted in concert to facilitate his killing.
Anderson was driving unusually slowly before the shooting. The video evidence and shot spotter audio also show that the shooting and the Rogue's pause in the middle of the intersection occurred basically simultaneously-within a matter of seconds. The jury could reasonably infer that Anderson drove Love to the scene of the crime and stopped the Rogue in a position to block the Infiniti's path, all while knowing that Love had either one or two loaded semiautomatic guns at the ready and intended to fire them at Ray. Anderson's actions made it possible for Love to immediately fire four to six bullets (from a close distance) directly at the front windshield of the stopped Infiniti-where Ray was in a small, enclosed space with little chance to escape.
There is no evidence that Anderson was surprised (or tried to aid Ray) after Love fired. In fact, the evidence suggests Anderson prearranged a getaway car that enabled him and Love to flee together in a car not directly connected to the shooting. From this evidence the jury could reasonably infer Anderson and Love planned to kill Ray, Anderson intended to facilitate the plan, actually encouraged and facilitated the commission of the attempted murder, and acted with intent to kill.
Substantial evidence supports Anderson's conviction for the attempted murder of Ray.
3.
With respect to the attempted murder of Doe (count two), Anderson contends there was insufficient evidence to support an implicit finding of intent to kill under a kill zone theory. We disagree.
When a single act leads to multiple charged counts of attempted murder corresponding to different victims, the defendant's mental state must be independently examined with respect to each victim. (People v. Bland (2002) 28 Cal.4th 313, 328 (Bland); People v. Cardenas (2020) 53 Cal.App.5th 102, 111.) Intent to kill cannot be transferred from one attempted murder victim to another survivor. (Bland, supra, at pp. 327-328.) However, the jury is not precluded from using circumstantial evidence to infer a defendant's concurrent intent to kill a primary target as well as other surviving victims within a kill zone around that primary target. (Canizales, supra, 7 Cal.5th at p. 606.) Because express malice is required for attempted murder, the kill zone theory does not apply when a defendant merely subjects others near the primary target to lethal risk. (Id. at p. 607.)
In Canizales, our Supreme Court reexamined and clarified the kill zone theory. (Canizales, supra, 7 Cal.5th at p. 606.) Canizales held that the kill zone theory may properly be applied only when a jury concludes: (1) the circumstances of the defendant's attack on a primary target, including the type and extent of force the defendant used, are such that the only reasonable inference is that the defendant intended to create a zone of fatal harm around the primary target-that is, an area in which the defendant intended to kill everyone present to ensure the primary target's death; and (2) the alleged non-primary victim was located within that zone of harm. (Id. at p. 607.) Our Supreme Court also cautioned that "there will be relatively few cases in which the theory will be applicable and an instruction appropriate." (Id. at p. 608.)
First, Anderson argues the kill zone theory cannot apply because there is insufficient evidence of a primary target in this case. (Canizales, supra, 7 Cal.5th at pp. 607-608.) The prosecution's theory was that Ray was the primary target of the shooting and Doe was merely a bystander victim. There was no evidence of prior interactions between Ray and Anderson or Love. Nonetheless, we conclude the jury could reasonably infer Ray was the primary target based on the evidence that (a) Ray was driving the Infiniti when defendants blocked its path of travel and shot six times through its front windshield, from a relatively close distance; (b) Ray himself had a gun and immediately returned fire; and (c) Ray's behavior after the shooting. (See People v. Cardenas, supra, 53 Cal.App.5th at p. 113.) While Doe left the scene on foot, Ray returned, moved the Infiniti, stomped in its windshield, and then left the scene in a separate vehicle.
Anderson also fails to persuade us that there was insufficient evidence that he intentionally created a zone of fatal harm around Ray-in other words, an area in which Anderson intended to kill everyone present to ensure Ray's death. (Canizales, supra, 7 Cal.5th at pp. 607, 609-610.)
"In determining the defendant's intent to create a zone of fatal harm and the scope of any such zone, the jury should consider the circumstances of the offense, such as the type of weapon used, the number of shots fired (where a firearm is used), the distance between the defendant and the alleged victims, and the proximity of the alleged victims to the primary target." (Canizales, supra, 7 Cal.5th at p. 607.) The determination "does not turn on the effectiveness or ineffectiveness of the defendant's chosen method of attack." (Id. at p. 611.) However, "[e]vidence that a defendant who intends to kill a primary target acted with only conscious disregard of the risk of serious injury or death for those around a primary target does not satisfy the kill zone theory." (Id. at p. 607.)
Here, Anderson and Love planned an attack in which one or both of them fired six bullets very rapidly, from two semiautomatic guns, at the Infiniti's enclosed and confined space from a close distance, as soon as they encountered it in the intersection. By stopping the Rogue where he did-in a place that blocked the car Ray was driving-Anderson effectively trapped anyone in the Infiniti.
Furthermore, Anderson did not pull the Rogue up next to the driver's side of the Infiniti; the Rogue was perpendicular to the Infiniti when the shooting occurred. And, unlike in People v. Booker (2020) 58 Cal.App.5th 482, 488 (Booker), the jury could reasonably infer that the shots fired from the Rogue were not localized to just the side of the car where Ray sat. Photos of the Infiniti's windshield show bullet holes across the width of the windshield. Another bullet fired from the Rogue struck the hood of the car.
It is undisputed that Doe was sitting inside the Infiniti, even if we do not know precisely where. We need not consider whether Anderson or Love saw her there. (See People v. Mumin (2021) 68 Cal.App.5th 36, 59 (Mumin), review granted, Nov. 10, 2021, S271049.) Regardless of where Doe sat inside the Infiniti, Ray was at most a few feet away. And there was nowhere for Doe to go to escape the line of fire-especially considering that Anderson and Love were firing rapidly and repeatedly with semiautomatic weapons. Doe was not injured, but bullets and bullet fragments were found inside the Infiniti. And a witness heard Ray ask Doe if she was okay, after the two exited the Infiniti.
The jury could reasonably conclude from this evidence that Ray was the primary target and that Anderson and Love intended to kill everyone in a zone of fatal harm (the Infiniti) in order to kill Ray. (See Bland, supra, 28 Cal.4th at pp. 327, 330331; Mumin, supra, 68 Cal.App.5th at pp. 50-52, 57-58; People v. Windfield (2021) 59 Cal.App.5th 496, 517-518.)
Accordingly, we need not separately address Anderson's argument that the kill zone instruction, given with respect to count two, was not supported by substantial evidence. (See Canizales, supra, 7 Cal.5th at p. 608; Mumin, supra, 68 Cal.App.5th at p. 50 [" 'presence of substantial evidence supporting the [challenged] jury instruction is not undermined by the existence of other interpretations of the evidence' "].) We also need not separately consider Anderson's substantial evidence challenges to the other offenses, which he only addresses in passing.
Anderson's convictions on counts one through six are supported by substantial evidence.
B.
Anderson also contends the trial court committed instructional error by giving a flawed kill zone instruction (former CALCRIM No. 600) and a factually unsupported mutual combat instruction (CALCRIM No. 3471). After independently reviewing both questions (People v. Cole (2004) 33 Cal.4th 1158, 1206; Mumin, supra, 68 Cal.App.5th at p. 49), we agree that the trial court's kill zone instruction failed to adequately guide the jury.
1.
The jury was instructed, with respect to counts one and two, that the prosecution had to satisfy two elements to prove Anderson guilty of attempted murder: "1. The defendant took at least one direct but ineffective step toward killing another person; [¶] AND [¶] 2. The defendant intended to kill that person."
The jury was also instructed as follows: "A person may intend to kill a specific victim or victims and at the same time intend to kill everyone in a particular zone of harm or 'kill zone.' In order to convict the defendant of the attempted murder of [Doe], the People must prove that the defendant not only intended to kill [Ray] but also either intended to kill [Doe] or intended to kill everyone within the kill zone. If you have a reasonable doubt whether the defendant intended to kill [Doe] or intended to kill [Ray] by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of [Doe]." (Italics added.)
In addition to instructing the jury on lawful self-defense (CALCRIM No. 505), the trial court instructed: "A person who engages in mutual combat or who starts a fight has a right to selfdefense only if: [¶] 1. He actually and in good faith tried to stop fighting; [¶] 2. He indicated, by word or by conduct, to his opponent, in a way that a reasonable person would understand, that he wanted to stop fighting and that he had stopped fighting; [¶] AND [¶] 3. He gave his opponent a chance to stop fighting. [¶] If the defendant meets these requirements, he then had a right to self-defense if the opponent continued to fight. [¶] A fight is mutual combat when it began or continued by mutual consent or agreement. That agreement may be expressly stated or implied and must occur before the claim to self-defense arose." (Some italics added.)
2.
The People insist that Anderson forfeited both claims of instructional error by failing to object below. Nonetheless, we address Anderson's claims on their merits because the asserted instructional errors affect his substantial rights. (§ 1259 ["appellate court may also review any instruction given, . . . even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"]; People v. Thompkins (2020) 50 Cal.App.5th 365, 392; People v. Tran (2018) 20 Cal.App.5th 561, 565, fn. 2.).
Instructions not supported by substantial evidence should not be given. (See People v. Cole, supra, 33 Cal.4th at p. 1206.) Our Supreme Court has repeatedly indicated that a kill zone instruction is never required-because concurrent intent is merely a reasonable inference a jury may draw from the evidence, as opposed to a legal doctrine requiring special instructions. (See, e.g., People v. Stone (2009) 46 Cal.4th 131, 137.) But even if a court has no sua sponte duty to instruct on a particular point, it must give a correct instruction when it chooses to do so. (People v. Castillo (1997) 16 Cal.4th 1009, 1015.)
3.
In Canizales, supra, 7 Cal.5th at pages 609-611, our Supreme Court concluded the record before it lacked substantial evidence to support a kill zone instruction. But the court also suggested that the model kill zone jury instruction (former CALCRIM No. 600) was flawed-observing that it did not adequately define the kill zone term and failed to explicitly direct the jury to consider the relevant circumstances. (Canizales, supra, 7 Cal.5th at pp. 601 &fn. 3, 609, 613.) The court recommended that, when a kill zone instruction is warranted by the evidence, a revised model instruction should be given. (Id. at p. 609.)
The Canizales court also concluded that the trial court's error-giving a kill zone jury instruction unsupported by the evidence-combined with the absence of any clear definition in the instruction and the prosecutor's misleading argument, created a reasonable likelihood that the jury understood the instruction in "a legally impermissible manner." (Canizales, supra, 7 Cal.5th at p. 614.) Specifically, the jury might have believed that it could find the defendants guilty of attempted murder of the secondary victim on an implied malice theory-if the defendant shot at the primary target knowing there was a substantial danger he would also hit the secondary victim. (Ibid.)
After Canizales, CALCRIM No. 600 was revised and at least one court of appeal has held that instructing with the Canizales version constitutes independent instructional error. (See In re Sambrano (2022) 79 Cal.App.5th 724, 732-733 & fn. 1 (Sambrano); People v. Dominguez (2021) 66 Cal.App.5th 163, 187.) Here too, the jury received an earlier version of CALCRIM No. 600 that was identical to that given in Canizales and Sambrano. (Canizales, supra, 7 Cal.5th at pp. 601 & fn. 3, 613; Sambrano, supra, 79 Cal.App.5th at p. 732, fn. 1.)
The revised portion of CALCRIM No. 600 now reads: "[A] person may intend to kill a primary target and also [a] secondary target[s] within a zone of fatal harm or 'kill zone.' A 'kill zone' is an area in which the defendant used lethal force that was designed and intended to kill everyone in the area around the primary target. In order to convict the defendant of the attempted murder of <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>, the People must prove that the defendant not only intended to kill <insert name of primary target alleged> but also either intended to kill <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>, or intended to kill everyone within the kill zone. In determining whether the defendant intended to kill <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>, the People must prove that (1) the only reasonable conclusion from the defendant's use of lethal force, is that the defendant intended to create a kill zone; and (2) <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory> was located within the kill zone. In determining whether the defendant intended to create a "kill zone" and the scope of such a zone, you should consider all of the circumstances including, but not limited to, the following: [• The type of weapon used(;/.)] [• The number of shots fired(;/.)] [• The distance between the defendant and <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>(;/.)] [• The distance between <insert name or description of victim charged in attempted murder count[s] on concurrentintent theory> and the primary target.] If you have a reasonable doubt whether the defendant intended to kill <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory> or intended to kill <insert name or description of primary target alleged> by killing everyone in the kill zone, then you must find the defendant not guilty of the attempted murder of <insert name or description of victim charged in attempted murder count[s] on concurrent-intent theory>.]" (Some italics added and some italics omitted.)
We agree that the instruction given in this case was incomplete and inaccurate because it does not require the jury to find, as is required for application of the kill zone theory (Canizales, supra, 7 Cal.5th at p. 607), that the defendant intended to kill everyone in the area around the primary target as a means of killing that primary target. (Sambrano, supra, 79 Cal.App.5th at p. 732.) In fact, the instruction does not define a kill zone in terms of a primary target at all. (Ibid.) The instruction given here also fails to enumerate the circumstances the jury should consider in assessing a defendant's intent to create a zone of fatal harm and the scope of that zone. (Canizales, supra, at pp. 607, 613.)
Although this case is distinguishable from Canizales because the evidence was sufficient to support a finding that Anderson and Love intended to kill Ray by killing everyone in the Infiniti, the trial court erred by giving an inadequate kill zone instruction.
4.
Neither Anderson nor the People address the standard of prejudice applicable to an instructional error of this type-where a kill zone instruction was supported by the evidence but the particular instruction given inadequately states the law. However, we need not determine the applicable standard because we conclude the error was prejudicial even under the less stringent People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) standard. (See Booker, supra, 58 Cal.App.5th at pp. 501-502.)
It is possible the jury convicted Anderson on the second count of attempted murder based on evidence he directly intended to kill Doe. Anderson and Love blocked the Infiniti-in which both Ray and Doe were sitting-then fired six rounds at the Infiniti from a distance that was relatively close (within the same intersection). At the end of the shooting, the Infiniti had bullet holes across the width of its windshield.
But the evidence of direct intent to kill Doe is not overwhelming. Neither Ray nor Doe testified. There was no evidence of Doe's precise location in the car, much less evidence that Anderson or Love saw her there and then aimed and fired a gun directly at Doe. (See Booker, supra, 58 Cal.App.5th at pp. 502-503 [evidence of direct intent to kill passenger was weak when there was no evidence defendants saw her in car]; cf. People v. Mariscal (2020) 47 Cal.App.5th 129, 140.) There was also no evidence that Doe was injured or that Anderson had reason to target her.
The prosecutor's closing argument did not cure the kill zone instruction's deficiencies. Indeed, it exacerbated the problem. For one, the argument makes clear that the People relied almost exclusively on the kill zone theory to support the second count of attempted murder. (See Sambrano, supra, 79 Cal.App.5th at p. 736.)
Furthermore, the prosecutor essentially repeated the instruction's erroneous statement of the kill zone theory. The prosecutor argued: "How about [Doe]? We can likely assume that [Ray] was the target....[B]ut . . . [w]hat if [Doe] just happened to be there? Well, you'll get the instruction that shows the People must prove the defendant not only intended to kill [Ray], but also either intended to kill [Doe] or intended to kill everyone within the kill zone. In this case, the small enclosed space. [¶] If there are two people in a car, they are necessarily within two or three feet of each other. And what the law says is that if you intended to kill one person, but shot into that enclosed space repeatedly, such that anybody else in that immediate area, that kill zone, could be killed. Or you can care, and say, 'I'm killing him and I'm killing anybody else near him in my effort,' then you have intended to kill those other people, and that is-[Doe]." (Italics added.)
The italicized portions of the prosecutor's argument show that the prosecutor erroneously broadened the kill zone concept by suggesting that intentionally creating a zone of harm or danger was sufficient to prove attempted murder. (See Canizales, supra, 7 Cal.5th at pp. 607, 614; Sambrano, supra, 79 Cal.App.5th at pp. 735-736.)
The record makes the prosecutor's suggestion-that Anderson could be convicted of attempted murder even if he acted with only conscious disregard of the risk that Doe could be killed-particularly problematic. Some of the circumstances undisputedly favor an inference that Anderson and Love intended to kill everyone inside the Infinity-i.e., the proximity of Doe and Ray inside the Infinity, as well as the type (and number) of weapons used. (See Canizales, supra, 7 Cal.5th at p. 607.) However, the evidence bearing on other circumstances is subject to competing inferences-some of which suggest Anderson and Love acted only with conscious disregard of the risk that someone else in the car might be seriously injured or killed.
First, there were bullet holes across the width of the Infiniti's windshield, from which the jury could reasonably infer a spray of bullets having been fired from the Rogue and an intent to kill everyone in the Infinity. However, there was also evidence that Ray himself fired 11 rounds from inside the Infiniti. An evidence technician testified that peeling occurs when bullets are fired from the inside to the outside of a car (through the windshield), but the photos taken of the Infiniti's windshield do not limit the multiple inferences that a jury could reasonably draw.
There was also no evidence that Doe (or even Ray) was struck by any of the bullets fired from the Rogue. Although the kill zone determination "does not turn on the effectiveness or ineffectiveness of the defendant's chosen method of attack," evidence that neither the primary nor the secondary targets were hit may inform the inference to be reasonably be drawn. (Canizales, supra, 7 Cal.5th at p. 611.) Nor is there evidence that the bullet fragments found in the Infiniti were located near her earlier seat. Indeed, there was no evidence of Doe's precise location in the car or any indication that Love and Anderson knew she was there. (See Mumin, supra, 68 Cal.App.5th at p. 59.)
On this record, Anderson has met his burden to show it is reasonably probable he would have achieved a more favorable result had the jury been properly instructed. (See Watson, supra, 46 Cal.2d at p. 836; People v. Sweeney (1960) 55 Cal.2d 27, 51 ["choice of which inference is to be drawn from the facts, where more than one reasonable inference is possible, is the function of the jury"].) Accordingly, we must vacate Anderson's conviction for the attempted murder of Doe (count two). Because there is substantial evidence to support a conviction for the attempted murder of Doe, Anderson may be retried.
5.
We reject Anderson's challenge to the trial court's decision to instruct the jury on mutual combat with CALCRIM No. 3471.
Anderson is correct that "mutual combat," as used in CALCRIM No. 3471, does not simply mean any reciprocal violence between two people. (People v. Nguyen (2015) 61 Cal.4th 1015, 1044; People v. Ross (2007) 155 Cal.App.4th 1033, 1036, 1044, 1047 (Ross.) Instead, the doctrine applies when there is evidence from which the jury could reasonably infer that the combatants mutually consented, arranged, or agreed to fight- either expressly or impliedly-before violence begins. (Ross, supra, at pp. 1036, 1044, 1047.) Ross held that it was error to instruct a jury on mutual combat without any evidence of a mutual agreement to fight. (Id. at pp. 1053-1055.)
But Ross is distinguishable. The Ross instruction, CALJIC No. 5.56, did not define mutual combat. And when the jury requested clarification of the term during deliberations, the trial court refused to provide additional guidance. (Ross, supra, 155 Cal.App.4th at pp. 1042-1043 &fn. 9.) Accordingly, the jury was free to conclude that the term might properly describe any violent struggle between two people, no matter how it began. (Id. at p. 1044.) Ross concluded the instructional error was prejudicial because it was both "unwarranted and dangerously incomplete." (Id. at pp. 1054, 1057, italics added.)
Here, although there is no evidence in the record of any express agreement, the jury could reasonably infer Ray, Love, and Anderson had an implicit agreement to engage in a gunfight that was, in effect, a sort of modern day duel. (See People v. Quach (2004) 116 Cal.App.4th 294, 297-298, 300-301; Ross, supra, 155 Cal.App.4th at p. 1045.) Although there is no evidence of any gang affiliation here, the evidence shows that Ray, Love, and Anderson were driving with loaded semiautomatic firearms at the ready, that all three almost simultaneously drew and fired their weapons the moment they encountered each other at an intersection, that both cars involved in the gunfight were quickly abandoned, that both Ray and Anderson attempted to destroy evidence, and that all three men left in uninvolved getaway cars.
Furthermore, unlike the instruction given in Ross (CALJIC No. 5.56) that pertained only to mutual combat (Ross, supra, 155 Cal.App.4th at p. 1042 &fn. 9), the version of CALCRIM No. 3471 given in this case is written in the disjunctive. It applies when a person is engaged in mutual combat or is the initial aggressor. And the record contains substantial evidence from which the jury could reasonably infer that Love fired the first shots. Anderson concedes as much. CALCRIM No. 3471 was not factually unsupported.
Even if we assume (for the sake of argument) that the trial court should have deleted the instruction's references to "mutual combat" as unsupported, any such error was harmless on this record. When a court gives an instruction that correctly states the law but has no application to the facts of the case, reversal is required only if it is reasonably probable a more favorable result would have been reached absent the error. (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130; Watson, supra, 46 Cal.2d at p. 836.)
Officer Stephens testified that he initially heard three shots fired and then a flurry of gun fire after a brief pause. The "shot spotter" evidence is consistent with that description. There is only one reasonable inference to take from this evidence combined with the surveillance video evidence, the physical evidence indicating that Love fired out an open window while Ray fired through his own windshield, and the evidence regarding the respective positions of the two cars within the intersection. The evidence overwhelmingly shows that the Rogue controlled this violent confrontation and that Love fired first.
On this record, it is not reasonably probable that the jury would have reached a more favorable result had the mutual combat portion of the instruction been omitted.
C.
Anderson maintains the prosecutor committed misconduct by telling the jury (during closing argument) that driving around with a loaded gun, looking for a gunfight, is not self-defense. He contends this misstated the law of mutual combat because it equates the parties' carrying loaded weapons with a preexisting intent to fight. We disagree.
1.
A prosecutor's conduct violates the Fourteenth Amendment to the United States Constitution when it comprises a pattern so egregious that it infects the trial with unfairness sufficient to make the conviction a denial of due process. (People v. Adams (2014) 60 Cal.4th 541, 568.) A prosecutor commits misconduct under state law only if he or she uses deceptive or reprehensible methods to attempt to persuade the jury. (Ibid.)
2.
Anderson forfeited his claim of prosecutorial misconduct by failing to object and request an admonition below. (See People v. Millbrook (2014) 222 Cal.App.4th 1122, 1150.)
Anderson's argument also fails on its merits. The prosecutor was entitled to argue that Anderson was not acting in self-defense because the circumstances showed both parties had an implicit agreement to engage in a gunfight before any need for self-defense arose. (See Ross, supra, 155 Cal.App.4th at pp. 1036, 1044, 1047.) Viewed in context, this is all the prosecutor did. The prosecutor correctly told the jury that mutual combat required an explicit or implicit agreement to fight and then raised permissible inferences that could be drawn from the evidence. There is no reasonable likelihood that the jury construed or applied the challenged remarks in an objectionable fashion that would misstate the law. (People v. Tully (2012) 54 Cal.4th 952, 1043-1044.)
Because the challenged comments were permissible argument, Anderson cannot demonstrate that defense counsel was ineffective in failing to object to them. (See Strickland v. Washington (1984) 466 U.S. 668, 688, 692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)
D.
Anderson contends the trial court abused its discretion in declining to grant a mistrial when Officer Marie volunteered that he works in the Oakland Police Department's "gang unit." (See People v. Collins (2010) 49 Cal.4th 175, 198 [standard of review].) We disagree.
A motion for mistrial should be granted only when a defendant's chance of receiving a fair trial has been irreparably damaged. (People v. Collins, supra, 49 Cal.4th at p. 198.) It is only in an exceptional case that the prejudice suffered is incurable by admonition or instruction. (Ibid.; People v. Allen (1978) 77 Cal.App.3d 924, 935.)
During direct examination, the prosecutor asked Officer Marie if he had previously used GPS devices for vehicle surveillance. When Marie responded affirmatively, the prosecutor asked, "how many times?" Marie answered: "Well over 100 times. I've been in the gang unit for the past eight years, and it's one of the principal tools that we use to conduct investigations." Defense counsel asked to approach. And the trial court immediately instructed the jury "that despite the fact that the officer may have used these items in the gang unit there is no evidence of gangs in this case."
Outside of the presence of the jury, defense counsel moved for a mistrial-arguing that Marie's testimony lacked any probative value and was "extremely prejudicial." The trial court denied the motion, concluding that its admonition was sufficient to cure any prejudice.
Officer Marie's isolated and limited statement that he himself worked in a gang unit did not irreparably harm Anderson's chance at a fair trial. Evidence of a defendant's gang membership is prejudicial because it creates a risk the jury will improperly infer the defendant has a criminal disposition and is therefore guilty of the offense charged. (People v. Carter (2003) 30 Cal.4th 1166, 1194.) Here, however, the trial court did not admit any evidence that Anderson was in a gang. Furthermore, the trial court properly emphasized that fact to the jury-by admonishing the jurors that there was no evidence of gang involvement in this case. We presume the jury followed the court's admonition. (People v. Burgener (2003) 29 Cal.4th 833, 870.)
The trial court did not abuse its discretion in denying the motion for mistrial.
E.
Defendant next argues that his counsel was ineffective for failing to raise an objection to purported profile evidence. He is wrong.
On direct examination, Officer Stephens testified regarding Anderson's very slow driving speed as he approached the scene of the shooting. The prosecutor then asked Stephens if, based on his experience as a police officer, this behavior raised concerns. Defense counsel raised a speculation objection. The trial court overruled that objection and Stephens testified: "Slow driving like that is an indicator of . . . like a precursor to crimes being committed."
Anderson concedes that his trial counsel forfeited the instant argument by failing to object on the grounds this was inadmissible profile evidence. We nonetheless reach the merits.
An expert gives profile testimony when they testify about a set of circumstances characteristic of a particular crime, compare the defendant's behavior to that typical pattern of behavior, and then suggest the defendant fits the profile. (People v. Prince (2007) 40 Cal.4th 1179, 1226 (Prince).) Profile evidence is not a category of evidence that must always be excluded. Rather, the evidence usually is inadmissible if it is either irrelevant, lacks a foundation, or is more prejudicial than probative because the conduct fitting the pattern is equally consistent with innocence as with guilt. (Ibid.)
However, it is not an abuse of discretion to admit expert testimony from a law enforcement officer about criminal modus operandi. (Prince, supra, 40 Cal.4th at p. 1223.) Such background evidence about methods commonly used by criminals may help the jury to understand complex (and not particularly complex) criminal activities. (Id. at p. 1224.)
Here, as in Prince, supra, 40 Cal.4th 1179, Officer Stephens did not compare Anderson's behavior against any particular criminal pattern or profile. Furthermore, Stephens did not opine that such a comparison led him to believe Anderson committed attempted murder or any other crime. Stephens merely acknowledged that it is not unusual to innocently drive slowly over a short distance-such as while looking for an address-and then gave permissible background or modus operandi evidence so that the jury understood that other inferences might be drawn in this case. (See id. at pp. 1223-1224.) Stephens's testimony was a permissible attempt to aid the jury in understanding Anderson's behavior. (See ibid.; People v. Lopez (1994) 21 Cal.App.4th 1551, 1555-1556.)
Anderson cannot demonstrate ineffective assistance of counsel.
F.
Anderson also contends the trial court erred in denying his motion to suppress the GPS tracking evidence, which was obtained pursuant to a pre-shooting warrant. We disagree.
1.
Installation of a GPS tracking device on a car, and use of that device to monitor its movements, is a search under the Fourth Amendment. (United States v. Jones (2012) 565 U.S. 400, 404.)
A search conducted pursuant to a search warrant is presumed lawful and the defendant bears the burden of establishing the warrant's invalidity. (People v. Lazalde (2004) 120 Cal.App.4th 858, 865.)
"The question facing a reviewing court asked to determine whether probable cause supported the issuance of the warrant is whether the magistrate had a substantial basis for concluding a fair probability existed that a search would uncover wrongdoing. [Citations.] 'The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" (People v. Kraft (2000) 23 Cal.4th 978, 1040-1041.)
Moreover," 'the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.' [Citation.] This reflects both a desire to encourage use of the warrant process by police officers and a recognition that once a warrant has been obtained, intrusion upon interests protected by the Fourth Amendment is less severe than otherwise may be the case." (Illinois v. Gates (1983) 462 U.S. 213, 237, fn. 10.)
2.
About two weeks before the shooting, Officer Marie obtained a warrant authorizing placement of a GPS tracking device on Anderson's Rogue to monitor its movement and location.
Marie's affidavit began by describing his 15 years of experience investigating street and gang-related crime in East Oakland. Marie then revealed that he and other Oakland Police Department officers were involved in an ongoing investigation of an armed robbery and shooting that occurred on Hegenberger Road almost two years earlier-in May 2018. Anderson matched the victim's description of the suspect who had taken a gold chain while carrying a visible black firearm. Within 15 minutes of the robbery, Anderson was also seen, by an undercover officer, removing items from a stolen black Nissan that the victim described as the getaway car and was subsequently viewed in surveillance video. Anderson was also observed to be wearing clothing, including distinctive acid wash jeans, similar to that described by the victim and later viewed in surveillance video.
Marie then returned to April 2020 and stated that Anderson had recently been repeatedly seen by police with another man (S.S.) suspected to have been involved in the 2018 robbery. Marie opined that Anderson and S.S. "continue to be involved in a pattern of violent criminal activity." He supported that statement by noting that both men had recently been victims of two shootings.
In the days preceding the warrant application, Marie and other officers had observed Anderson driving the Rogue, which was confirmed as registered in Anderson's name. Marie also indicated that neither the firearm used in the 2018 armed robbery and shooting, nor the clothing worn by the suspect matching Anderson's description, had ever been recovered. Accordingly, Marie believed that obtaining evidence of the Rogue's movements (via GPS tracking) could lead to discovery of those particular items of evidence, as well as other evidence linking Anderson to three felonies-carrying a concealed firearm within a vehicle (§ 25400, subd. (a)(1)), assault with a firearm (§ 245, subd. (a)(2)), and possession of stolen property (§ 496, subd. (a)).
Before trial on the instant charges, Anderson moved to suppress the GPS tracking evidence on the ground that the information supporting the finding of probable cause was stale. (See § 1538.5, subd. (a)(1)(B)(iii).) The trial court denied Anderson's motion.
3.
On appeal, Anderson insists that Marie's affidavit was insufficient to support issuance of the warrant because (1) it failed to establish any nexus between the evidence sought (GPS data showing the Rogue's movements) and the crimes committed in 2018; and (2) the information provided was too stale to establish probable cause in 2020. His arguments lack merit.
First, we agree with the People that Anderson forfeited his nexus argument by failing to raise it in his motion to suppress. (See Evid. Code, § 353, subd. (a); People v. Silveria and Travis (2020) 10 Cal.5th 195, 235; People v. Polk (2010) 190 Cal.App.4th 1183, 1194-1195.)
Anderson argues that, if his nexus argument was forfeited, his constitutional right to effective assistance of counsel was violated. (See People v. Green (1984) 163 Cal.App.3d 239, 245246.) To establish ineffective assistance of counsel, a defendant must show (1) counsel's performance was so deficient that it fell below an objective standard of reasonableness, under prevailing professional norms, and (2) the deficient performance was prejudicial, rendering the results of the trial unreliable or fundamentally unfair. (Strickland v. Washington, supra, 466 U.S. at pp. 688, 692, 700; Ledesma, supra, 43 Cal.3d at pp. 216217.) Prejudice must also be affirmatively demonstrated. (Ledesma, supra, at p. 217.) Prejudice is shown when there is a reasonable probability that, but for counsel's ineffective representation, the result of the proceeding would have been different. (Strickland, supra, at p. 694.)
Anderson's ineffectiveness claim fails for several reasons. First, his insufficient nexus argument is unpersuasive on the merits. The United States Supreme Court, in United States v. Jones, supra, 565 U.S. at page 413, stopped short of deciding the standard required to support a warrant for installation and monitoring of a GPS tracking device. Ordinarily, "an affidavit must establish a reasonable nexus between the crime or evidence and the location to be searched." (United States v. Crews (9th Cir. 2007) 502 F.3d 1130, 1136-1137.) Yet Anderson concedes that placement of a GPS tracking device does not uncover physical evidence in the same way a traditional search would. In this unique context, we conclude probable cause exists when there is a fair probability evidence of a crime will be found by tracking the vehicle's location. (United States v. Faulkner (8th Cir. 2016) 826 F.3d 1139, 1144, 1146; see §§ 1524, subd. (a)(12), 1546.1, subd. (c)(3).)
Here, Marie's affidavit established a fair probability that evidence relating to the 2018 robbery and shooting would be found by tracking the Rogue. Anderson does not dispute that the affidavit established probable cause to believe he was involved in the 2018 armed robbery and shooting. And the Rogue was known to be registered in Anderson's name. Officer Marie also asserted, based on his training and experience, that individuals who unlawfully possess firearms often stay at locations other than at an address listed with the Department of Motor Vehicles-in an effort to thwart law enforcement from finding contraband. The magistrate was entitled to rely on Marie's expertise. (People v. Lazarus (2015) 238 Cal.App.4th 734, 764 (Lazarus).) Taking these two parts together, we conclude the affidavit established probable cause to believe that Anderson was involved in the 2018 crimes and that tracking his movements in the Rogue would lead to the discovery of evidence of those crimes.
In any event, even if we assume for the sake of argument that the warrant established an insufficient nexus between the Rogue's location and the 2018 crimes, Anderson has not demonstrated counsel's allegedly deficient representation was prejudicial.
We cannot say Marie's affidavit was" 'so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.'" (United States v. Leon (1984) 468 U.S. 897, 923; accord, People v. Camarella (1991) 54 Cal.3d 592, 605606.) This was not a "bare bones" affidavit. The affidavit established at least a minimal nexus between Anderson, the 2018 crimes, and the Rogue such that a reasonably well-trained officer would not have known that the search was illegal despite the magistrate's authorization. (Leon, supra, at pp. 922-923, fn. 23.) On this record, the good faith exception to the exclusionary rule would apply.
4.
The information Marie provided was not too stale to support probable cause.
Information contained within an affidavit may be deemed stale and unworthy of consideration if it is too remote in time to justify a finding of probable cause at the time the search warrant is sought. (People v. Hulland (2003) 110 Cal.App.4th 1646, 1652.) However, there is no bright-line rule for determining when information becomes stale; the question depends on the unique circumstances involved in each case. (People v. Carrington (2009) 47 Cal.4th 145, 163.) It is not unusual for courts to uphold warrants despite significant delays intervening between the issuance of a warrant and the underlying evidence of criminal activity-as long as there is either reason to believe that criminal activity is ongoing or that evidence of criminality remains in the location to be searched. (Id. at p. 164; People v. Stipo (2011) 195 Cal.App.4th 664, 672.)
Here, in contrast to the drug cases on which Anderson relies, there was good reason (in 2020) to believe that evidence of the 2018 crimes persisted. Courts have repeatedly recognized that, unlike drugs which are quickly consumed or sold, it is not unreasonable to believe that firearms will be retained long after a crime is committed. (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 369-370; Lazarus, supra, 238 Cal.App.4th at pp. 764-765 [20 year delay].) Officer Marie stated that the firearm and clothing tied to the 2018 shooting had not been recovered. Accordingly, even after a lapse of almost two years between the past investigative efforts and the warrant application, the magistrate had a substantial basis on which to conclude that the firearm and clothing evidence was likely to remain present at a location that GPS tracking of Anderson's Rogue would uncover. (See People v. Bryant, Smith and Wheeler, supra, at pp. 369-370; Lazarus, supra, at pp. 764-765.)
The magistrate did not err in denying Anderson's motion to suppress.
G.
Finally, Anderson maintains the trial court violated his Sixth Amendment right of confrontation by requiring witnesses to wear protective face masks while testifying. Like the other courts of appeal that have considered similar arguments (see, e.g., People v. Edwards (2022) 76 Cal.App.5th 523, 525-527), we disagree.
Anderson was tried in January and February of 2021-in the midst of the COVID-19 pandemic. The trial court ordered all persons in the court, including testifying witnesses, to wear a mask. Anderson asked the trial court to lift that requirement for testifying witnesses, arguing the jury would otherwise be unable to judge credibility. The trial court denied his motion.
The United States Supreme Court understands the Confrontation Clause to reflect a strong preference for face-to-face confrontation at trial. But that preference is not absolute and must occasionally give way to important public policy considerations. (Maryland v. Craig (1990) 497 U.S. 836, 844, 847-850.) "The central concern of the confrontation clause 'is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.' [Citation.] This concern is satisfied when the witness: (1) is physically present for his or her testimony; (2) testifies under oath; (3) is subject to cross-examination; and (4) may have his or her demeanor observed by the trier of fact." (People v. Bharth (2021) 68 Cal.App.5th 801, 814.)
Accordingly, a defendant's right to confront witnesses may be satisfied without a traditional face-to-face confrontation at trial where "denial of such confrontation is necessary to further an important public policy" and "the reliability of the testimony is otherwise assured." (Maryland v. Craig, supra, 497 U.S. at p. 850.)
Here, the trial court's mask requirement was necessary to further an important public policy-protecting the health and safety of trial participants in the midst of a global pandemic. And all of the confrontation clause's central reliability concerns remained otherwise assured: witnesses testified in the defendant's and jury's physical presence, witnesses were under oath, and witnesses were subject to cross-examination and observation of demeanor by the trier of fact. True, Anderson and the jury may have been impeded from observing witnesses' full facial expressions because testifying witnesses wore face masks that covered their noses and mouths. Yet they were not wholly deprived of observing witnesses' demeanor.
Anderson's confrontation rights were not violated by the trial court's requirement that witnesses cover their mouths and noses to further public safety during a global pandemic. (See People v. Edwards, supra, 76 Cal.App.5th at pp. 525-527; People v. Lopez (2022) 75 Cal.App.5th 227, 230; People v. Alvarez (2022) 75 Cal.App.5th 28, 37-39.)
H.
Anderson also argues the cumulative effect of trial errors requires reversal of the judgment. Putting aside Anderson's argument about the kill zone instruction-which identifies an error we have already deemed prejudicial with respect to count two-we have rejected all of his other arguments on the merits. No cumulative error can be predicated on the one additional error we assumed for the sake of argument.
Disposition
The judgment on the second count (attempted murder of Jane Doe) is reversed and the matter is remanded with directions to allow the People to elect whether to retry Anderson on that charge. In all other respects, the judgment is affirmed.
We concur: JACKSON, P.J., SIMONS, J.