Opinion
A158163 A162664
11-30-2021
THE PEOPLE, Plaintiff and Respondent, v. PATRICK DEMPSEY, Defendant and Appellant. In re PATRICK DEMPSEY, on Habeas Corpus.
NOT TO BE PUBLISHED
(Alameda County Super. Ct. No. 16CR009191)
Kline, P.J.
Defendant Patrick Dempsey appeals from convictions of second degree murder and possession of a firearm by a felon. His challenges to the convictions are primarily focused on the admission at trial of the preliminary hearing testimony of a witness who defendant contends was inadequately cross-examined due to ineffective assistance of counsel and/or the prosecution's failure to disclose exculpatory evidence. Defendant additionally argues another witness's testimony should have been excluded as involuntary, the prosecutor committed misconduct in opening argument, and the trial court erroneously failed to entertain a Marsden motion prior to the preliminary hearing. For the reasons we explain herein, we affirm.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
BACKGROUND
About 4:15 a.m. on July 14, 2016, Oakland police officers responded to a shooting at the Chevron gas station at the corner of 35th Street and San Pablo Avenue. The victim, Spencer Reboredo, was lying on his back on 35th Street, unresponsive, with a man identified as Khalid Bailey attempting to assist, and was pronounced dead at the scene. No eyewitnesses to the shooting were located.
Reboredo died from a gunshot wound to the chest. Five nine-millimeter shell casings recovered from the scene were determined to have been fired from the same weapon, a Glock or Smith & Wesson semi-automatic firearm. Methamphetamine was detected in Reboredo's blood.
Sergeant Michael Cardoza became the lead investigator on the case. As will be detailed, soon after the shooting, a Union City Police Department informant claimed to have overheard Eleisha Gordon saying he shot Reboredo. Defendant came to Cardoza's attention several months later, from information provided by first Christopher Butts in September 2016, and then by Tesfaye Zelake and Eric Hendryx. Hendryx claimed to have been with defendant at the time of the shooting, Zelake claimed defendant told him he shot Reboredo a couple of hours after it happened, and Butts claimed to have been involved in disposing of the gun afterward.
The witnesses in this case had street names which, in many instances, were the only names by which other witnesses knew them. For clarity, this opinion will use the individuals' official names.
Arrest warrants were issued for both defendant and Hendryx, but Hendryx was not charged with Reboredo's murder. Defendant was charged with murder and possession of a firearm by a felon and held to answer after a preliminary hearing on December 20, 2016, at which he was represented by attorney Alex Harper.
The information filed on January 3, 2017, charged defendant with murder (Pen. Code, § 187, subd. (a)), with firearm and great bodily injury allegations (Pen. Code, §§ 12022.7, subd. (a), 12022.53, subds. (b), (c), (d) & (g), 12022.5, subd. (a)), and possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1)), with seven alleged prior convictions, two of which were separately alleged as prior convictions (unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) in 2008, and petty theft with priors (Pen. Code, §§ 484, subd. (a), 666) in 2009.
The additional prior convictions alleged in count 2 were for driving under the influence (Veh. Code, § 23152, subd. (a)) in 2003, unauthorized possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)) in 2007 and 2011, violation of a protective order (Pen. Code, § 273.6, subd. (a)) in 2015, and unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) in 2016.The information named the victim in count 1 as "John Doe." An amended information filed on November 26, 2018, changed the name to Spencer Reboredo.
Attorney Megan Burns substituted for Harper on November 3, 2017. Trial began with jury selection on November 27, 2018. On December 20, the jury found defendant guilty of second degree murder, found the firearm and great bodily injury allegations true, and found defendant guilty of possession of a firearm by a felon. Defendant was subsequently sentenced to a prison term of 40 years to life plus eight months: On count 1, 15 years to life for the second degree murder, plus 25 years to life for the personal use of a firearm (§ 12022.53, subd. (d)), and on count 2, a consecutive eight months for the firearm possession.
Butts's Evidence
Christopher Butts testified that he had known defendant for 15 years and defendant was one of his best friends. In July 2016, they were both living in a warehouse on East 12th Street in Oakland. Defendant had inherited some money when his father died and was paying Butts to do maintenance work at the warehouse, which was how Butts paid his rent. Fifteen to 20 people lived at the warehouse, a lot of them addicts, and Butts and defendant were both using drugs. Butts had met Zelake through defendant, who said Zelake was like a brother to him, but Butts was not friends with him and had never partied with him. Butts knew Reboredo through defendant and knew Hendryx from the warehouse, but was not friends with him.
At the end of June or beginning of July 2016, Butts and defendant were supposed to go to Butts's storage facility in Hayward. Reboredo had been waiting behind the warehouse in a van defendant had borrowed from Zelake, but when Butts and defendant went out, the van was gone. Defendant was "pissed," made some calls trying to find Reboredo, and said he was going to "whoop his ass" when he found him.
On July 14, defendant came to Butts's room and said he needed help. They drove to defendant's friend's garage and put a duffel bag in the garage, then later went to Hendryx's warehouse. Butts acknowledged having told the police a different story-that defendant left two duffels in his room on the morning of July 14, then later picked them up and put items from them in a Ford Windstar van behind the warehouse, including a street sign with "Spencer" on it and plastic painter's tarps wrapped up with clothes and other items. Asked about the differing accounts, Butts said both were true: "We dropped some stuff off in the garage and then also some stuff in plastic."
Butts testified that on the way to Hendryx's warehouse, defendant said he got the van back and Reboredo was dead. Butts "assumed that [he] knew what that meant" because defendant had told him he and Hendryx planned a set-up drug deal to get the van back. Butts and defendant met with Hendryx in a cargo container inside Hendryx's warehouse. They discussed how to get rid of a gun, which was to be Butts's job, and payment for the gun, which belonged to Hendryx, but defendant had used and needed to dispose of. They also discussed getting rid of the car defendant and Hendryx had driven. Butts testified that they did not directly discuss what had happened, but then acknowledged having testified at the preliminary hearing that Hendryx was upset because he lent defendant the gun to scare Reboredo and get the van back and defendant said he was not going to shoot Reboredo. Butts also acknowledged having testified that defendant "said he felt he had to because he told him he was going to and so he did," and having told the police, truthfully, that defendant told him he had to shoot Reboredo because he had "promised him I would shoot him if he didn't bring back the van."
According to Butts, Hendryx wanted $1,500 from defendant, $900 of which was for the gun by itself. Defendant and Butts drove to a bank and defendant gave Butts $1,500 cash. Butts was supposed to give $900 to Hendryx for the gun and try to convince Hendryx to let him take the car, but Hendryx would not give him the car, so Butts gave Hendryx the $900 and kept the rest of the $1,500.
Butts had been to this bank with defendant several times for defendant to get money to pay Butts.
A week or so after the shooting, Butts went to the gas station to see whether the surveillance cameras would have caught the car Hendryx and defendant were in. He initially testified defendant told him to do this, but later testified it was Hendryx, then that he was "pretty sure" both told him to look. Butts told defendant the camera pointed at the ATMs at the gas pumps, but defendant said Butts still needed to get rid of the car in case the cameras were able to see the license plate.
Regarding disposal of the gun, Butts testified that while he was waiting for Hendryx in a U-Haul, he fell asleep and someone put the gun in the car. A girl named Crystal woke him up, and they drove to a cove in Alameda where one could "conveniently throw things in the water." When Crystal was not paying attention, Butts switched the gun for a BB gun he had in a bag, so he would not have to throw away the "good" gun and could keep it for "insurance" in case he got in trouble because the incident was "so messy." Butts testified that although Crystal was there to witness him disposing of an item in a bag, she did not know what the item was. He acknowledged on cross-examination that after initially telling the police he woke up and did not know where the gun came from, he admitted that Hendryx handed it to him. At the time of trial, he did not remember how the gun got in the car. The gun was a Glock, but he told the police it was a Beretta because the replica he had was a Beretta.
Butts testified that he threw the "fake Beretta" in the water and took the real gun back to the warehouse, where he sheetrocked it into the wall of his room, then a couple of weeks later, while he was in jail, someone broke the wall down and took the gun. He had testified at the preliminary hearing that the real gun was stolen from his room the same day he disposed of the replica and that he thought Norteños had taken it.
Butts was arrested in September 2016 for violating a restraining order and told the Hayward police he had information about Reboredo. In his initial interview on September 12, he did not say Hendryx was involved, then after a few meetings, he explained he previously left out Hendryx's name because it was clear to him that Hendryx did not expect the shooting. Butts told the police a car connected with Hendryx was used in the homicide and the gun was Hendryx's. He also told them Hendryx set up the drug deal to lure Reboredo to the gas station, because that was what defendant told him.
Butts told the police that when he and defendant discovered the van missing, defendant called Reboredo and "told him he was going to shoot him if he didn't bring the van back," that defendant was upset because people made fun of him for being unable to get the van back, and that "people get killed for less than a van" in Oakland. He told the police defendant had changed his phone number three times since the murder, but acknowledged at trial that he and defendant used pay-as-you-go phones, and people in the warehouse were always losing their phones and getting new ones-"[i]n that lifestyle phone numbers change constantly." He did not remember talking to the police about defendant having a wig, but acknowledged that a transcript of his September 13 police interview showed he said defendant "told me he was wearing a wig . . . he had a wig on and he walk out. He gave me the whole scenario because he wanted me to check the cameras." Butts also told the police defendant had an "SKS automatic" firearm and homemade explosives under his bed in the warehouse.
Butts testified that a July 28 text to his ex-wife saying "I can't stand" defendant was sent "when I had got in an argument with him. That's the only time we ever got in an argument." On September 12, Butts told the police defendant had punched him a month before, but he had testified on direct that the one altercation he ever had with defendant was about a month before the murder. Butts also told the police that a woman defendant was sleeping with in July 2016, hated defendant because he tried to "shoot her up while she was asleep," and rumor about him having done this was why "nobody liked" him. Butts testified that defendant and Hendryx were not close, and acknowledged having told the police the two were "not really friends" and he assumed Hendryx did not like defendant.
In his September 12 police statement, Butts said a "very good friend of mine was there when it happened. That's why I don't want to say who it was." Butts testified, however, that he did not consider Hendryx a good friend, had only met him once, and got his phone number only after the "whole murder thing happened." He testified that Hendryx was a loan shark, had pistol whipped a person who lived at the warehouse, and that "everybody knew him." He did not remember telling the police Hendryx had ties to "powerful people" and the "Aryan Brotherhood," although he did tell them the people at Hendryx's warehouse were affiliated with the Hell's Angels. Butts knew "a bunch of" Hell's Angels, used to be in a motorcycle club affiliated with them, was no longer in the club, and no longer referred to himself as affiliated with a prison gang connected to the Hell's Angels. Text messages on his phone in September 2016, however, reflected a person connected to a gang member trying to reach Hendryx through Butts. Butts denied knowing Hendryx dealt methamphetamine, saying "[w]e all had it. We all did dope." Butts also denied that he was dealing methamphetamine in July 2016, but text messages on his cell phone suggested the contrary.
In 2016, Butts was charged in four separate cases with violating restraining orders protecting his ex-wife; three were dismissed and he was on probation for the fourth at the time of trial. These offenses were misdemeanors, and he received one day of credit for jail time despite having been in jail longer than one day because he was required to give up his credits as part of a plea agreement. Butts was also arrested on May 13, 2017, for elder abuse against his employer; at the time of trial that case was pending with an agreement that it would be dismissed if Butts obeyed all laws. In June 2017, he was arrested for driving a stolen vehicle and was on probation in that case at the time of trial.
Butts denied obtaining better outcomes in his criminal cases because of the information he provided to the police in the present case and testified that when he talked to the police he was not hoping to receive money or have his own criminal cases disappear. He acknowledged that when he was arrested on September 12, 2016, he told an officer who asked if he was getting anything out of providing information on the shooting that he did not want to go to jail and it would be "nice" if they could do anything to stop that from happening, but claimed "I said it as like a joke." The officer told him they had very little leeway with domestic violence, but he could still "make some calls" on Butts's behalf. Butts was released the next morning and no criminal charges were filed; according to Butts, his parents bailed him out and charges were dropped because his ex-wife testified and "told the truth." He was re-arrested within a few hours of his release, after going to his ex-wife's house, and Oakland Police Department (OPD) officers told him, "[w]e'll figure something out for you," but he remained in jail anyway and was still there when he learned Hendryx had been arrested on September 27, 2016.
Butts testified that the FBI gave him money to move after he testified, but he "did not know that at the time," then acknowledged on cross-examination that he received the payment from the FBI before the preliminary hearing. He was given the money because he still lived in the warehouse and there was a threat to him. No one told him he was getting the money only because he was identifying defendant as the shooter. He gave the money to his parents because he owed them for helping him move out of the warehouse.
Butts testified that he repeatedly asked the police if his name could be kept quiet so defendant would not find out Butts gave him up; he was afraid of what could happen if the "streets" found out he "snitched." Asked whether he told the police that Reboredo had been told to "meet us" at the Chevron station, then corrected himself and said, "meet them," Butts replied, "I don't know." The parties stipulated that Butts "used the word 'us'" in reference to the homicide in his September 12, 2016 statement. Butts acknowledged that one of the detectives said, "I think your subconscious is coming through a little bit, okay? . . . I think you were there when this happened." He denied that it was really him, not defendant, who was involved in the homicide together with Hendryx, or that he identified defendant because he could not stand him, because defendant had beaten him up, or because defendant was sleeping with a girl Butts was dating.
Cardoza confirmed that he was contacted in September 2016, by a Hayward police officer who said Butts had reported having information about an Oakland homicide. Butts had been interviewed at the Fremont Police Department on September 12, and Cardoza re-interviewed him a week later, then again later in the month. On the first occasion, Butts directed Cardoza and his partner to a cove in Alameda where he said he had thrown the weapon, but a subsequent search of the area was unsuccessful. Prior to his interviews with Butts, Cardoza did not know about Hendryx or about Zelake's connection to this case.
Cardoza testified that Butts told him defendant shot and killed Reboredo and asked Butts to help get rid of the gun, which originally belonged to Hendryx. Because the gun was used in the homicide, Hendryx agreed to sell it to defendant for $1,500, with Butts as "middleman" to facilitate the transaction. Bank records confirmed that defendant withdrew $1,800 from the Montclair district bank where Butts said he went and defendant got cash and gave Butts $1,500. Butts also told Cardoza that defendant asked him to go to the Chevron station to see what the video surveillance cameras could capture so defendant could decide whether they needed to get rid of the vehicle Hendryx had driven there.
A district manager for U.S. Bank confirmed that bank records showed defendant withdrew $1,800 on July 15, 2016, in a teller transaction inside the Montclair branch in the Oakland hills.
Officers executing a search warrant at the warehouse on East 12th Street found a wig, although Cardoza did not say where in the warehouse it was located. According to the defense investigator, who examined the evidence collected by the police, the item "looked like extensions that had been pulled out of someone's hair," with pieces of straw mixed in, rather than a "wig." The officers did not find the SKS firearm or explosives Butts said would be in defendant's room. There was a Ford Windstar van parked behind the warehouse exactly where Butts said it would be, but the items related to the shooting that Butts had said might be in it were not found.
Cardoza testified that he never asked the district attorney for consideration on Butts's pending cases or promised Butts he would make such a request. Regarding the money provided to Butts by the FBI, Cardoza explained that the police were working with the FBI, which had funds for situations like this where a witness's safety required relocation. Brooke Perkins, the deputy district attorney who handled defendant's preliminary hearing, was not aware of any promises made or benefits given to Butts other than the relocation funds provided by the FBI; she did not provide assistance on any of his pending cases or direct any other district attorney to do so, and Butts did not ask if she could do anything to assist in his cases.
Crystal Millard, testifying for the defense, denied going to Alameda with Butts to throw something in the water or being present when Hendryx handed Butts a gun. She had met Butts at the warehouse on East 12th Street, but did not know him well. She testified that she "barely" knew Hendryx, but also that she knew him through her ex-boyfriend and had seen him more than 40 times. At the time of trial, Millard had been clean and sober for three months, after using drugs on and off for about 20 years. She had a brain injury that caused her to be slower than other people in recalling things, as well as to have difficulty remembering things. She did not know what happened in the summer of 2016.
Also testifying for the defense, Butts's former girlfriend testified that she obtained a restraining order against him when they broke up, but he continued to call and text her, came to her workplace, and came to her house, pounding on the door and trying to break in. The police were called multiple times regarding Butts being at her house, and he was arrested there once. During the time they were dating, Butts talked about being in a motorcycle club affiliated with the Hell's Angels.
Another defense witness, defendant's friend Gina Bowden, lived in the East 12th Street warehouse from July 2016 to March 2017, rent-free, in exchange for handling paperwork related to defendant and Jim Polse trying to purchase the warehouse. Bowden had been convicted and served time in custody for felony offenses related to identity theft. In August 2016, Butts showed her ATM receipts and bank statements she later learned were in defendant's name and asked if she could use them for identity theft. Bowden said she could not do anything without a social security number and Butts said he could get it. She did not immediately tell defendant about the incident, but told him about a week later and did not participate in any identity theft from defendant.
Zelake's Evidence
Tesfaye Zelake met defendant when he and his family moved to California from a refugee camp in Kenya where Zelake was born and lived for 22 years. Defendant worked at the apartment complex Zelake moved into and they became close friends. Zelake was also close with defendant's mother, who he called "mom." Defendant taught Zelake to drive, and his mother cosigned a loan to enable Zelake to buy a car. Zelake knew that defendant had inherited some money when his father died.
Zelake's family was Ethiopian and had to flee after his father, who was in the government, was killed in a coup; one of Zelake's greatest fears was being sent back to Ethiopia, where he believed he would be killed. Growing up in the refugee camp, he experienced a lot of violence, saw a lot of killings, and was exposed to police corruption.
Zelake testified that defendant lived in a huge warehouse in which a lot of people had built rooms for themselves, managed the warehouse with a man named Jim, and was trying to buy the building. Zelake hung out with defendant often, had seen defendant use methamphetamine, and had been at the warehouse while a party was going on there, but Zelake did not drink alcohol or do drugs and never partied with defendant. He met Butts through defendant, but was not friends with him and he recognized a photograph of Hendryx as a person he had seen at the warehouse.
At the end of June 2016, Zelake loaned his Nissan van to defendant. Defendant told Zelake he had loaned the van to Reboredo and was upset because Reboredo had not returned it. About two weeks before July 14, defendant asked Zelake for a ride to look for the van because someone had seen it, and they drove around West Oakland looking. Defendant had a metal baseball bat with him to beat Reboredo up, but they did not find the van. Zelake did not report the van stolen because defendant said he was going to take care of it.
On July 14, defendant came to Zelake's home around 6:00 a.m. and said he needed a ride to Dennis's place, referring to a person Zelake knew. Defendant told Zelake he had shot and killed Reboredo at a Chevron station on San Pablo with a Glock 17. Zelake understood this meant defendant shot Reboredo with a nine millimeter gun: He carried a Glock 22, .40 caliber, for his work as a security guard and knew the difference between these weapons. Zelake asked why defendant shot Reboredo and defendant said he was "really pissed," and that he made sure Reboredo was dead and would not talk. Defendant told Zelake to report the van stolen, directing him to tell the police he had left his keys in the ignition while unloading the van, then went to sleep and discovered the van was missing when he got up in the morning. Zelake made the false police report at 7:00 a.m. that day, knowing he was lying, because he was scared, and he testified that he was still worried about his own and his family's safety. He got the van back later that same day from the Chevron station. There were things in it that did not belong to him, including a dresser and bags of clothes, and it looked like someone had been living in it.
Defendant subsequently called Zelake and asked if the police had contacted him. When Zelake said yes, defendant asked if they asked about the murder, Zelake said they did, and defendant said "they must have forgotten about it and he must have gotten away with it."
Toward the end of September, Zelake went to OPD for an interview, which he knew was being recorded despite the detectives saying it was not. Zelake did not tell the truth initially, but ultimately related truthfully everything he knew about Reboredo's killing and gave the police both defendant's old phone number and the new one he called from. He told the police defendant said he would kill Zelake if he told anyone about the shooting and when they asked if he believed the threat Zelake replied, "Like I told you, this guy's crazy. I mean look at him." Zelake acknowledged that a transcript of his interview reflected him having told the police that defendant said he used a Glock 17 nine millimeter he borrowed from a friend and was wearing a black hoodie. The first time he went to OPD, he lied when he told the officers he did not know Reboredo; in fact, he had seen Reboredo at the warehouse, although he had never talked to him.
Zelake testified that he did not want to appear in court, but was subpoenaed and told he would be arrested if he did not appear. He testified that no one from the prosecutor's office or police had threatened him with deportation or loss of his children before the preliminary hearing. During his preliminary hearing, defendant's mother was sitting in front of him and he was nervous about saying everything he knew, but he testified truthfully, and he testified truthfully at trial.
On cross-examination, Zelake said he did not remember various questions and answers from the preliminary hearing and the trial court took judicial notice of the transcript showing he said "yes" when asked whether someone from the Alameda County District Attorney's Office or police had threatened that if he did not testify he would be "sued for filing a false police report," "go to child protective," and go to jail and "never see your child and your wife again." Zelake had also testified that he was afraid he might be deported, although no one told him this. On redirect, Zelake testified he understood, because the prosecutor had explained to him, that it would be illegal for anyone from the district attorney's office to threaten him with deportation and that no one was going to take his children or deport him if he did not testify.
Cardoza testified that he interviewed Zelake after getting information about the murder from Butts. Crime scene investigation had revealed a van that was in the parking lot of the Chevron station at the time of the shooting belonged to Zelake, and Zelake had reported his van stolen at 7:00 a.m. on the morning of the shooting. Butts told Cardoza an "Ethiopian kid" had lent the van to defendant and defendant was very upset because Reboredo took the van and had not returned it.
According to Cardoza, the tone of the interview was pleasant and he never threatened to take Zelake's children away; he told Zelake it was a crime to file a false police report as an "educational" matter. Zelake repeatedly told Cardoza he was scared for himself and his family if defendant learned he provided information to the police, saying something to the effect that Cardoza "didn't understand what [defendant] was capable of." Cardoza reassured Zelake the police department would do its best to make sure he was safe. Zelake ultimately related events which, as described by Cardoza, were basically consistent with Zelake's trial testimony, although Cardoza additionally related Zelake mentioning that defendant had said if he ever found Reboredo he was going to shoot him for taking the van. Zelake indicated it was difficult to talk to the police because he owed defendant a lot and was close with defendant's mother, as well as defendant.
Perkins testified that she did not make any threats to Zelake or discuss potentially deporting him or taking his children away, and that such threats would be illegal and would have to be disclosed to the defense. She was "very shocked" when Zelake testified on cross-examination that he had been threatened, and he retracted his statements during his redirect examination.
Hendryx's Evidence
Eric Hendryx's testimony from the preliminary hearing was read to the jury. Hendryx testified that he had met Reboredo, but they were not friends, and that he had met defendant "a few times" and "hung out a little bit" with him at the warehouse on East 12th Street, which Hendryx frequented. Hendryx ran into a person at one of the raves at the warehouse who said he had a "GHB hookup" and went with defendant to a gas station on the corner of San Pablo and 35th Streets in West Oakland to meet the person with the GHB. They were also looking for defendant's work van, which Reboredo had borrowed and not returned. Hendryx was driving a Honda and defendant was in the front passenger seat. Hendryx did not have any weapons with him and did not give a gun to defendant.
As will be further explained, after starting to testify at trial, Hendryx refused to continue and was found unavailable.
GHB refers to the drug gamma hydroxybutyrate, known as a "date rape" drug.
Hendryx testified that he thought he was driving his black Honda Acura; he also owned a red Honda and, when he talked to the police, said he had been driving one of them.
Hendryx was looking for an individual in a Jeep and saw the Jeep at the gas station when they arrived. There was a Nissan or Dodge van in the gas station parking lot and, right in front of it on 35th Street, a white work van. As Hendryx pulled up by the gas station air, defendant said," 'I think that's my van, '" got out of the car and walked toward the white van. There were "a few people out there" and Hendryx heard defendant say" 'If they run, I'm going to kill them.'" Hendryx drove toward the Jeep, but it drove off "as soon as they heard some noise." Hendryx drove out of the gas station and pulled over on 35th Street, and defendant ran to the car and got in. Hendryx heard four or five gunshots as defendant got back in the car and thought defendant was being shot at. He did not see defendant's hands. He did not see anyone, including defendant, with a gun and did not see anyone hit by a gunshot. Defendant asked to go to the Bay Bridge to look for Reboredo, who was supposedly "pulling wire" at the construction site by the toll plaza, but it was late and Hendryx wanted to get home, so he drove defendant back to the warehouse. They did not talk about the shooting, defendant never told Hendryx anything about Reboredo's murder, and Hendryx never received any money to dispose of a weapon.
Hendryx thought it was a black Jeep; asked about having told the police it was white, he said he told them he did not know which color it was.
Hendryx denied telling the police that defendant shot Reboredo. He testified that when he first spoke with the police in late September 2016, he was in custody and had been transported directly from a three-day hospitalization for a heart problem to be interviewed at OPD. The officers opened a folder with pictures of the gas station and told him they had him on video jumping out and killing someone, but they did not show him any such video; Hendryx told them that since they were saying there were cameras at the gas station, "it should all be there, right?" When the police asked who shot Reboredo, Hendryx said he was not sure and, on the night he was there, was not even aware someone was shot or died. He acknowledged recognizing defendant when the police showed him a photograph, but denied saying defendant was the shooter and testified that the officers "more or less" told him defendant killed Reboredo.
Hendryx testified, "I said I don't know who killed him. I don't want to sit here and make something up if I didn't see nobody pull the trigger or shoot somebody."
Hendryx acknowledged that the "Mr. X" referred to in his second police interview was defendant, saying the police were talking about the shooter and "trying to tell me it was [defendant]." Asked about telling the officers that defendant said "I had to, I had to" when he got back in the car, Hendryx testified that he did not remember it "exactly like that"; he was wondering why defendant was not driving the van, but "it happened so quickly, it wasn't enough time to even really talk." Asked about telling the police he asked defendant why he had to "do that" over a van, Hendryx testified that he knew defendant was upset over the van, but did not know the shooting was over the van. He testified, "I said it was a little bit serious over a van. But I didn't say that he did it or he didn't do it, because I didn't know" and "I knew when he got out to retrieve his van there was some shooting." When the police asked Hendryx why defendant wanted to go to the bridge after the shooting, Hendryx replied, "[m]aybe to get rid of a gun or something," then he "found out later that's where everybody was scrapping wire." He also testified that he replied," 'Who knows? He may have had something on him. He could have shot me, too. [¶] I know if I'm going to shoot somebody, you got to shoot the witnesses too.'" Hendryx denied telling the officers that he refused to take defendant to the bridge and "as soon as I [could] get him out of my vehicle, I got him out."
Cardoza testified that Hendryx was arrested on September 27, 2016, after leading Oakland police officers on a high speed chase, then taken to the hospital for medical clearance and, on September 29, transported to OPD and interviewed. Hendryx said he could not read, so Cardoza read him his Miranda rights, which Hendryx waived. Hendryx was "very aware" he was being recorded while in the interview room, but told Cardoza if he took him outside the room, he would tell Cardoza what happened in the July 14 shooting. He went on to discuss the incident without naming the shooter, repeatedly saying the person would kill him or his family and had "enough pull" to have him killed in custody or outside. It was eventually agreed they would refer to the person as "Mr. X." Hendryx asked what he would get in return if, outside the room, he named the shooter, and when Cardoza told him he was at that point facing a charge of murder, Hendryx said," 'Okay, but the camera shows who did it.'" He repeated throughout the interview that the camera would show the incident. Later, Hendryx told Cardoza he would provide the name if Cardoza gave him a ride to jail, did not write it down, and "forgot" the information came from Hendryx.
Hendryx told Cardoza he went with Mr. X to the Chevron station to meet two individuals who were supposed to sell them GHB. Hendryx was driving his red Honda; shown a photograph of a Mercedes wagon (Hendryx's wife's car, which Butts had guessed was the car used at the time of the shooting), Hendryx immediately said that was not the car involved. Mr. X had been looking for weeks for Reboredo and a van Reboredo had taken from him; he wanted to get the van back because he had borrowed it from someone else. At the gas station, Mr. X said" '[t]here's my van.'" There was a man standing next to the van. The shooter said" 'You run, I'll kill you.' . . . [Reboredo] ran, then he looked at me." Hendryx said Mr. X jumped out of his car, telling Hendryx he would kill him if he ran, then Hendryx heard shots and drove off. Hendryx said, "Dude gets back in the car when I'm down the street. He comes running up on us and starts popping [shooting] more. I don't know if he's popping at me or not." Hendryx did not actually see Mr. X shoot Reboredo, but saw him chase Reboredo into the street. When he got back in the car, Mr. X said" 'I had to do it. When I told him if he ran, I was going to kill him.'" Hendryx denied having known Mr. X had a gun or intended to shoot anyone.
Cardoza took Hendryx out of the interview room and talked to him in a hallway, but surreptitiously recorded the conversation with a hand-held audio recorder. Hendryx identified a photograph of defendant as "Pat" and confirmed "[t]hat's the dude who shot" and who said "if you run . . . you die." Hendryx said," 'I don't know if he killed him. I know he [shot] him.'" He denied having given the gun to defendant and said he did not see what it looked like. Asked if he had been expecting the police to come after him because of the shooting incident, Hendryx said he didn't even think about it and when he was arrested for murder thought he must have killed someone during the high speed chase. Hendryx said defendant was crazy enough to kill someone for having stolen the van. After the shooting, defendant wanted Hendryx to drive him to a bridge to get rid of the gun, but Hendryx wanted him out of the car. Asked if anyone else was involved in killing Reboredo, Hendryx said he did not know who owned the van, but the police should call the registered owner.
Hendryx told Cardoza defendant was in love with a girl who wanted nothing to do with him, and defendant "injected her" while she was sleeping. Hendryx called this "dirt bag shit" and defendant a "straight loser." Although Hendryx expressed strong feelings about this incident, when asked if it was evident from his conversations with Hendryx that Hendryx and defendant were "far from friends," Cardoza replied that "they seemed cool enough with each other to hang out from time to time." Hendryx told Cardoza defendant would call him and ask for a ride, and they "went and looked for a van, things like that."
Cardoza agreed that the transcript of the interview reflected him promising to help Hendryx, but also telling Hendryx he was not saying he had influence with the district attorney. Cardoza did not do anything to ensure leniency for Hendryx with regard to the case resulting from his fleeing the police, and had never attempted to obtain any benefit for Hendryx on any case. Perkins testified that Hendryx was granted use immunity for his preliminary hearing testimony (meaning his testimony could not be used against him in another proceeding) because he would not have testified without it, and that no promises were made with respect to Hendryx's pending criminal case.
The trial court took judicial notice that Hendryx suffered felony convictions in 2008 for possession of methamphetamine for sale; in 2006 for unlawful taking or driving of a vehicle, reckless evading of the police and assault with a deadly weapon; in 2005 for unlawful taking or driving of a vehicle; in 1999 for reckless evading of a police officer; and in 1996 for unlawful taking or driving of a vehicle. The parties stipulated that when he was arrested in 2008, Hendryx was found to be in possession of $10,417 cash and about one-half pound of suspected methamphetamine in 12 individually wrapped packages. It was further stipulated that the police found in the vehicle Hendryx was driving on September 27, 2016, a Beretta Tomcat .32 caliber pistol with three rounds in the magazine and one in the chamber, two
As recited on the record, the stipulation erroneously refers to a 2016 conviction for these offenses.
"clear plastic twists" of suspected cocaine hydrochloride, one "clear plastic twist" of marijuana, and approximately $1,045 cash.
Evidence Related to Gordon
Elizabeth Edelman lived in Union City in 2016 and was a paid informant for Officer Clubb of the Union City Police Department. She testified that she had known Clubb for several years and had provided him with information about criminal activity that resulted in people going to jail and seizure of methamphetamine and firearms. The amount she would be paid depended on the information and whether it could be confirmed, and she was aware the information had to be firsthand.
Edelman knew Reboredo and Gordon, who lived with Christina Boado at a house on Polaris Avenue that Reboredo frequented. Edelman knew Reboredo stopped going to the Polaris Avenue house because of altercations with people who lived there, and about three months before his death, she saw a graze wound on his body. Edelman did not know defendant, Butts, or Zelake; a photograph of Hendryx looked familiar to her, but she did not know whether she knew the person.
Shortly after the homicide, Edelman was at a gathering at the home of Buddy Ambrose, a "known gambling establishment." Edelman was in the backyard watching the children, about 30 feet from a garage in which people were getting high on methamphetamine. The garage door was open and Edelman could hear parts of a conversation about Reboredo having been killed, including a voice she recognized as Gordon's saying something to the effect of "he got what he had coming to him" and that he killed Reboredo. She told Clubb shortly after the homicide that Gordon had been bragging about being involved in Reboredo's death and said the same when she met with OPD detectives and Clubb in mid-August 2016, as well as that Gordon said something like" 'that's what he gets for trying to rat people out . . . . [H]e had it coming.' He goes, 'it was just a good time for me to do it and I did it.' "
Asked how she knew Gordon's voice, Edelman said she recognized voices well; when asked if she had spoken to him prior to the gathering at Buddy's, she said she was "not sure," but thought she had, and that she spent time with him and his girlfriend "once." She did not remember having told the police she had known Gordon a long time.
Edelman testified that she did not recall Carla Martins being present when she heard Gordon bragging about killing Reboredo. Nor did she remember various other statements read from the transcript of her police interview, including that she was inside Buddy's house when Carla Martins, who was not very familiar with Gordon, came in and told her Gordon-the "tall black guy," Tina's boyfriend-was talking about being the one who killed Reboredo; that Edelman asked if Martins was sure it was Gordon and Martins said," 'Yeah, it was some black guy. He was almost purple, '" and Edelman said," 'Okay, that's [Gordon]' "; and that when the detective asked," '[s]o you didn't hear [Gordon] say this, '" Edelman said," 'No. I heard his voice.'" Edelman acknowledged that the transcript of her recorded interview reflected these points and that the information was fresher in her mind in August 2016; at the time of trial, she did not remember exactly what she heard.
Edelman testified that she had seen Gordon with firearms, but she did not recall telling the detectives she had sold Gordon a Glock 17 in 2012. She told the detectives that around 11:00 p.m. the night before Reboredo was shot, she noticed a black Jeep was not where it had been outside the Polaris Avenue house, and that anyone could get into the Jeep because the keys were always in it.
Edelman had had memory problems since suffering a stroke in 2009, and as a result of a more recent incident, the memory problems had worsened and she had seizures. She used methamphetamine for a long time, but at the time of trial had been sober for "some time." She testified that she was not nervous about testifying, but was concerned for her safety.
Clubb testified that Edelman had worked as a "mercenary informant" for the department since 2010. On July 19, 2016, she told him she had overhead Gordon admit killing Reboredo. When they met with OPD detectives in August 2016, Edelman said she had sold Gordon a brand new Glock 17 in 2012, and that she had known him a long time. No officers had previously given her facts about the homicide such as what kind of gun was involved.
Clubb confirmed that the transcript of Edelman's August 2016 interview reflected her saying she had met Gordon "a million times," she recognized his voice from "many conversations" they had had, and she had smoked dope with him "hours on end." Edelman said that prior to Reboredo's death, she heard Gordon say" 'he'll have his day.'" Regarding the gathering at Buddy's house, Edelman initially said Martins told her what Gordon said and Edelman questioned Martins to be sure who she was identifying as the speaker, then later, Edelman said she personally heard Gordon say he killed Reboredo.
Carla Martins, testifying for the prosecution, contradicted Edelman's testimony. Martins lived and worked out of state, but spent time with Edelman, one of her best friends, when she came to California. Martins testified that she was in the Bay Area at the beginning of July 2016, and again on July 23 and 24, but she had confirmed with employment records that she was at work on July 15, 2016. She denied having been at a party in Union City where she overheard someone bragging about killing Reboredo, never told Edelman a "tall black guy was in the garage bragging about killing [Reboredo]," or "he was so tall and so dark he was almost purple," and denied having told a defense investigator she went to Buddy's house with Edelman. Martins was surprised to learn that Edelman was an informant for the police.
Martins had been subpoenaed to appear as a witness for the defense, but did not know what the case was about and learned from the prosecutor the night before she testified that her name had been raised by Edelman.Martins had been clean and sober for seven years, prior to which she often partied with Edelman. Martins denied knowing Gordon when shown a photograph of him, but acknowledged having told the defense investigator she knew someone by Gordon's street name who was in jail. When she first spoke with the defense investigator, Martins said she did not know Hendryx, but after looking online, she told the investigator he looked familiar. She initially told the investigator she "possibly" knew Edelman, then later apologized and said she had been nervous and Edelman was her best friend. She acknowledged having told the investigator she would rather testify in open court than without a jury present because she did not want anyone to think she was a snitch.
Prior to Martins's testimony, Edelman had testified for the defense, out of order, after first testifying at a conditional examination in an effort to assure her availability and protect her safety. Martins was aware Edelman had testified because Edelman called her, but said she could not understand what Edelman said because she talks fast.
Defense Investigator Raylene Samson confirmed that the first of several times she spoke with Martins by telephone, Martins said she "possibly" knew Edelman, then the next time they talked, Martins said she had been nervous and Edelman was her best friend. Martins told Samson she did not know Gordon personally, but the prosecutor had told her Gordon mentioned she was at a party and Edelman had said, "yeah, [Gordon] is a black guy who's in jail." Martins said she did not know defendant, Zelake, Butts, or Hendryx, then after looking at social media said Hendryx looked familiar.
Martins told the investigator she saw Edelman in Union City in July 2016, but not the specific dates. She knew Buddy's house as a "regular hangout" where people played dice and cards, and spent time there with Edelman; Martins no longer used drugs, but sometimes went to places where people were using drugs and gambling. In a later conversation, Martins volunteered that "this is all about some guy who died because of gambling, something about a van," that people she knew were connected to him, and that someone had given her name with regard to a party where "somebody talked about doing a shooting." She said she was nervous, did not understand why she needed to testify, and feared she would be seen as "snitching." After Edelman testified at a conditional exam in this case, Samson tried to follow up with Martins about travel arrangements, but Martins did not respond to efforts to contact her.
Union City Police Officer Joseph Roberts testified as a defense witness about an incident on April 18, 2016, in which Reboredo reported Gordon having assaulted him with a paintball gun. When Roberts responded to the call, Reboredo appeared to be under the influence of a substance, probably methamphetamine, and said he felt like he was going into shock. Roberts observed 15 swollen welts on Reboredo's body consistent with injuries from a paintball gun at close range. Reboredo said Gordon shot him with a paintball gun at the house on Polaris Avenue and believed the projectiles were either frozen or marbles. He reported that Gordon entered the room and shouted," '[y]ou motherfucker, '" then after shooting multiple times told him," '[g]et the fuck out of here.'" As Reboredo left, Gordon shouted," '[w]e're going to get you motherfucker.'" Roberts went to the house and found some blood smears, but no evidence of paintballs or a paintball gun. He contacted Gordon, who said he would arrange a time to meet with Roberts, but never did so. Gordon was never arrested in connection with the incident because Reboredo came to the police department and said he had made amends with Gordon and did not want him prosecuted.
Reboredo gave Roberts a phone number for Gordon's girlfriend, Christina Boado, who provided the officer with Gordon's phone number. Boado testified she was angry at Reboredo for giving her phone number to the police and denied that Gordon told her Reboredo" 'would have his day.' "
In February 2017, Union City police officers conducting a probation search at the Polaris Avenue house found a .25 caliber semi-automatic pistol, a magazine for a nine millimeter pistol, and seven rounds of nine millimeter ammunition in a room in which they also found indicia for Gordon. Gordon was arrested and the court took judicial notice that he pled no contest to possession of a firearm by a felon in 2017. In 2018, as part of an investigation into Gordon for the Southern Alameda County Major Crime Task Force, Gordon was searched and arrested upon being found in possession of a baggie of marijuana, 5.7 grams of methamphetamine, a Glock 30 semi-automatic handgun loaded with .45 caliber bullets, over $800, and a digital scale. That case was pending at the time of defendant's trial.
This task force was described as a California Department of Justice task force comprised of several agencies that work on "mid to high level narcotics investigations dealing with gang crime in the southern part of the county, fugitive apprehension, and firearms cases."
Gordon was called as a witness for the prosecution and exercised his constitutional right not to testify on the grounds it might tend to incriminate him. The trial court found him unavailable to testify.
A prosecution expert in cell tower analysis testified that a number associated with Gordon was in the area of Fremont and Union City at various times between midnight and 6:00 a.m. on July 14, 2016. The phone activated a tower near the Polaris Avenue address at 3:17 a.m. and there were no further calls until 6:50 a.m.; there were texts during this period, but no cell tower data was available for them. The witness estimated the drive time from Polaris Avenue in Union City to the scene of the shooting at that time of night would be about 35 to 40 minutes.
Alibi Evidence
Sabrina Cross testified that in July 2016, she lived in the warehouse on East 12th Street and had a "playful" relationship with defendant, taking drugs and engaging in sexual activity, but not "dating." She knew of Reboredo, but never met him. She knew Butts from the warehouse and did drugs with him; a photograph of Hendryx looked familiar, but she could not recall his name; and she did not recognize a photograph of Zelake.
Cross testified that she was with defendant the night Reboredo was killed: They had dinner at her mother's house in Rodeo with another friend, Carrie Canty, and returned to the warehouse well after midnight. Cross lost track of defendant, who went inside about 10 minutes before her. Once inside, Cross was in the common area of the warehouse and thought defendant was in his room; she saw him "in passing" and knew he never left the warehouse because she had the keys to his truck. Just before daybreak, she told defendant she was taking the truck to drive Canty home.
Cross used drugs, including methamphetamine, for about 10 years, but at the time of trial had been clean and sober for almost a year. She considered her memory "fair," even in the time she was using drugs. She acknowledged having had occasional "lapses" that could last up to about two hours, but testified she would remember afterward having had such a lapse and she did not have one the night of July 13. She specifically recalled being at the warehouse on July 13, and taking defendant to dinner at her mother's that night, and remembered being at the warehouse on July 12, but did not remember what she was doing on July 10 or 11; she said she remembered events, but not days and dates.
Asked about her testimony that she "lost" defendant when they returned to the warehouse after dinner at her mother's, Cross testified that they weren't separated for long because "[h]e never really let me out of his sight too much," and that when she was in the common area, she could see defendant moving in his loft "the whole time." She acknowledged this testimony was contrary to her previous testimony that she lost defendant for a while.
Cross remembered talking to a defense investigator, although she had trouble remembering precisely where they met and much of what she said to him. She recalled telling the investigator that Butts was in a witness protection program because he was a snitch, but did not recall why she said this. She acknowledged having told the investigator she did not often sleep at the warehouse because her dog would fight with other dogs living there, but testified that on the night of July 13, her dog was at her mother's house.
Defendant wrote to Cross fairly often after he was arrested. One letter told her to contact another girlfriend of his who worked for Channel Two and directed her how to dress, what to say, and to cry when talking to her, but Cross did not do this.
Cross acknowledged that defendant was an anarchist, which she agreed was "an idea where you don't follow laws" and "make your own rules," and he openly stated his beliefs, saying "something similar to he's going to do what he wants to do." He also spoke of "discordia," which he said is the worship of disorder and Cross acknowledged was "[a]gain, furthering sort of you do what you want."
Cross testified that the rumor about defendant trying to shoot her up with methamphetamine while she was blacked out was false. She did not tell people the rumor was not true because she was no longer living at the warehouse when she heard about it. In her opinion, Butts was dishonest and untrustworthy.
Cross went to the first court date in defendant's case and "butted in" when she heard his name called, saying she knew he could not have killed Reboredo because he was with her that night. She knew about the court date because defendant had called her, but he did not tell her to go to court.
The prosecution presented evidence that analysis of data from the cell phone Zelake had given Cardoza as defendant's "old" phone number showed it activated a cell tower in the vicinity of 35th Street and San Pablo at 3:55 a.m. on July 14, 2016. A cell phone normally connects to the tower with the strongest signal, which is usually the closest one, but topography can affect the signal strength and if a tower is overwhelmed with calls, it may bump a call to another tower. If the cell phone had been at defendant's home on East 12th Street, it would have had to bypass 20 towers to activate the one that was activated at 3:55 a.m. The cell phone "went dark" after the 3:55 a.m. activation, most likely meaning it was turned off. In the experience of the testifying cell phone data expert, it is fairly common for a cell phone to go dark after the individual in possession of it commits a crime.
Additional Evidence
Cardoza described images from the gas station surveillance video that were shown at trial. Zelake's stolen van was parked exactly where Cardoza saw it at the scene. A person walked by the side of the van, then a red vehicle drove up behind the van and stopped, consistent with Hendryx's description of driving into the gas station. The person at the side of the van appeared to be taller than the van and was moving from its rear to its front, toward 35th Street. The car remained behind the van for about nine seconds, then pulled past it toward 35th Street. An open-top Jeep Wrangler backed up, following the path taken by the red car. The red car turned onto 35th Street, going east. A person ran away from the gas station, eastward on 35th Street. The brake lights on the red car activated and, upon close inspection, a silhouette could be seen moving in the direction of where the car appeared to have stopped, then the car disappeared from view. On a separate surveillance video with audio, five gunshots could be heard.
Cardoza was unable to identify the people in the Jeep, whom he regarded as potential witnesses to the homicide.
A defense expert who enhanced the gas station surveillance video was asked to ascertain the height of the person seen running along the fence line, but based on the video and a visit to the scene, was unable to do so.
The parties stipulated that defendant had prior felony convictions for unlawful taking or driving of a vehicle in 2018 and in 2008 and for petty theft with priors in 2017.
A defense expert on cell phone forensics testified that the last call made from a cell phone found in Reboredo's pocket was at 2:25 a.m. on July 14. Other cell phone data analysis revealed no phone calls or text messages between Reboredo's phone and defendant's, and the parties stipulated that cell phone records revealed no link between defendant and Hendryx, or between defendant and Gordon. There were no calls or texts between the phone number associated with Butts and those of Hendryx, Reboredo, or Gordon, or between Gordon and Hendryx. A phone number connected with Gordon had two contacts with a particular number in August 2016 that Hendryx called in September.
Khalid Bailey, the person who was with Reboredo when the police arrived at the scene of the shooting, was working the night shift as a security guard at a hotel near the intersection of 35th Street and San Pablo at the time. He got outside about a minute after hearing three or four shots, heard a man yelling for help, and noticed a black Jeep with black rims "just standing there in the intersection," which seemed odd with someone just having been shot. The Jeep then drove away slowly and Bailey saw two or three people in it, but could not see their faces. Bailey testified that he told the police he felt the Jeep had something to do with the shooting, but acknowledged on cross-examination, that his statement to the police did not say he thought the Jeep was involved or the Jeep was fully stopped.
DISCUSSION
I.
Hendryx testified under grants of use immunity at the preliminary hearing and at trial. At trial, however, after testimony on direct examination comprising 32 pages of the reporter's transcript, Hendryx refused to answer further questions. As a result, his trial testimony was stricken and-over objections from the defense-his preliminary hearing testimony was read to the jury. The court explained the situation to the jury and instructed it to disregard everything Hendryx had said in court, noting "I know that's not easy to do."
As in the trial court, defendant argues his preliminary hearing testimony should have been excluded because he did not have a fair opportunity to cross-examine Hendryx at the preliminary hearing for two reasons: First, the prosecution violated Brady v. Maryland (1963) 373 U.S. 83 (Brady) by failing to disclose Hendryx's criminal record and the identity of a police informant; second, the attorney then representing him, Harper, rendered ineffective assistance of counsel.
"Section 1291, subdivision (a)(2), allows introduction of prior testimony when '[t]he party against whom the former testimony is offered was a party to the action or proceeding in which the testimony was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which he has at the hearing.' (Italics added.) The 'motives need not be identical, only "similar."' (People v. Zapien (1993) 4 Cal.4th 929, 975.)" (People v. Hull (2019) 31 Cal.App.5th 1003, 1021 (Hull).) The statutory requirements are"' "in harmony" '" with constitutional ones. (Hull, at p. 1022, quoting People v. Smith (2003) 30 Cal.4th 581, 609.) Under an exception to a defendant's constitutional right to confront witnesses (U.S. Const., 6th Amend.; Cal. Const., art. 1, § 15), "[t]estimonial statements of a person who does not testify at trial are admissible against a criminal defendant over a confrontation clause objection when (1) the declarant is unavailable, and (2) the defendant had a prior opportunity to cross-examine. (Crawford [v. Washington (2004)] 541 U.S. [36, ] 59; [People v.] Valencia [(2008) 43 Cal.4th 268, ] 291 [holding that prior preliminary hearing testimony is admissible when these conditions are met].)" (Hull, at pp. 1021-1022.)
As a rule, "defense counsel's failure to explore certain areas on cross-examination does not render [prior] testimony inadmissible under Evidence Code section 1291. 'As long as defendant was given the opportunity for effective cross-examination, the statutory requirements were satisfied; the admissibility of this evidence did not depend on whether defendant availed himself fully of that opportunity. [Citations.]' (People v. Zapien[, supra, ] 4 Cal.4th [at p.] 975, italics added; see People v. Smith[, supra, ] 30 Cal.4th [at p.] 611, ['it is the opportunity and motive to cross-examine that matters, not the actual cross-examination'].) Moreover, 'the admission of . . . testimony under Evidence Code section 1291 does not offend the confrontation clause of the federal Constitution simply because the defendant did not conduct a particular form of cross-examination that in hindsight might have been more effective.' (People v. Samayoa [(1997)] 15 Cal.4th [795, ] 851, citing [Zapien], at p. 975.)" (People v. Wilson (2005) 36 Cal.4th 309, 346.) "Preliminary hearing testimony may be introduced at trial over a section 1291 and confrontation clause objection even when the defense develops information or discovers evidence after the preliminary hearing about which it did not have the opportunity to cross-examine the witness." (Hull, supra, 31 Cal.App.5th at p. 1031.)
Brady Issues
As defendant emphasizes, the rule that otherwise admissible prior testimony is not rendered inadmissible by a defendant's subsequent discovery of material that might have been useful in cross-examination applies "[a]bsent wrongful failure to timely disclose by the prosecution." (People v. Jurado (2006) 38 Cal.4th 72, 116.) "Pursuant to Brady, supra, 373 U.S. 83, the prosecution must disclose material exculpatory evidence whether the defendant makes a specific request (id. at p. 87), a general request, or none at all (United States v. Agurs (1976) 427 U.S. 97, 107 (Agurs)). The scope of this disclosure obligation extends beyond the contents of the prosecutor's case file and encompasses the duty to ascertain as well as divulge 'any favorable evidence known to the others acting on the government's behalf . . . .' (Kyles [v. Whitley (1995) 514 U.S. [419, ] 437.)" (In re Brown (1998) 17 Cal.4th 873, 879.) "[T]he duty encompasses impeachment evidence as well as exculpatory evidence." (Strickler v. Greene (1999) 527 U.S. 263, 280 (Strickler), quoting United States v. Bagley (1985) 473 U.S. 667, 676.) "Such evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" (Strickler, at p. 280, quoting Bagley, at p. 682.)
" '[T]he term "Brady violation" is sometimes used to refer to any breach of the broad obligation to disclose exculpatory evidence-that is, to any suppression of so-called "Brady material"-although, strictly speaking, there is never a real "Brady violation" unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict. There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.' (Strickler[, supra, ] 527 U.S. [at pp.] 281-282, fn. omitted.) Prejudice, in this context, focuses on 'the materiality of the evidence to the issue of guilt and innocence.' ([Agurs], supra, 427 U.S. at p. 112, fn. 20; accord, U.S. v. Fallon (7th Cir.2003) 348 F.3d 248, 252.) Materiality, in turn, requires more than a showing that the suppressed evidence would have been admissible (cf. Wood v. Bartholomew (1995) 516 U.S. 1, 2, ), that the absence of the suppressed evidence made conviction 'more likely' (Strickler, . . . at p. 289, ), or that using the suppressed evidence to discredit a witness's testimony 'might have changed the outcome of the trial' (ibid.). A defendant instead 'must show a "reasonable probability of a different result."' (Banks v. Dretke (2004) 540 U.S. 668, 699.)" (People v. Salazar (2005) 35 Cal.4th 1031, 1042-1043.)" 'The requisite "reasonable probability" is a probability sufficient to "undermine[ ] confidence in the outcome" on the part of the reviewing court.' (In re Sassounian (1995) 9 Cal.4th 535, 544.)" (Salazar, at p. 1050.)
As pointed out in Hull, supra, 31 Cal.App.5th at page 1034, on appeal from a conviction after trial it is no longer relevant whether the magistrate would have found probable cause if the evidence at issue had been disclosed prior to the preliminary hearing. Rather, the relevant questions are whether the late disclosure deprived the defendant of an opportunity for effective cross-examination and, if so, whether the error in admitting the preliminary hearing testimony was harmless beyond a reasonable doubt. (Hull, at pp. 1034-1035.)" 'The harmless error inquiry asks: "Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?"' ([People v. Geier (2007) 41 Cal.4th 555, 608]; People v. Livingston (2012) 53 Cal.4th 1145, 1159.) To determine whether the People have satisfied their burden of proving the error was harmless beyond a reasonable doubt, 'we examine the entire record and must reverse if there is a"' "reasonable possibility" '" that the error contributed to the verdict.' (People v. Reese (2017) 2 Cal.5th 660, 671, citing People v. Aranda (2012) 55 Cal.4th 342, 367 . . . .)" (Hull, at p. 1035.)
Pointing out that both Brady error and ineffective assistance of counsel claims require a defendant to show a reasonable probability of a different result, the People cite the rule that "irregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination." (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 (Pompa-Ortiz).)Pompa-Ortiz is not precisely apposite. The issue in that case was erroneous denial of a pretrial motion to dismiss based on denial of a substantial right at the preliminary hearing-in that case, the right to a public preliminary hearing. "[D]enial of a substantial right at the preliminary examination renders the ensuing commitment illegal and entitles a defendant to dismissal of the information on timely motion." (Pompa-Ortiz, supra, 27 Cal.3d at p. 523.) Pompa-Ortiz held that while no showing of prejudice is required when a defendant seeks review of an erroneously denied motion to dismiss on this basis before trial (People v. Coleman (1988) 46 Cal.3d 749, 773; Harris v. Superior Court (2014) 225 Cal.App.4th 1129, 1138, 1145-1147 [writ review of denial of to dismiss based on ineffective assistance of counsel at preliminary hearing]), if the issue is raised after conviction, reversal is required only upon a showing of prejudice. (Coleman, at p. 773; Pompa-Ortiz, at p. 529.)Here, there was no pretrial motion to dismiss and we are not reviewing the direct effect of preliminary hearing errors on the subsequent trial. The errors at the preliminary hearing are asserted as a problem only because Hendryx refused to testify; the question is whether the claimed Brady violations so undermined defendant's opportunity for effective cross-examination that the preliminary hearing testimony should not have been admitted at trial. The People concede the harmless beyond a reasonable doubt standard applies if admission of the testimony was in error.
The prosecution apparently did not provide Hendryx's criminal history to the defense prior to the preliminary hearing, and the People concede this should have been done. This evidence had obvious relevance for impeachment purposes. Like the court in Hull, however, we find it unnecessary to determine whether the prosecution's failure to disclose the evidence before the preliminary hearing deprived defendant of an opportunity for effective cross-examination because "any error related to admitting [Hendryx's] preliminary hearing testimony without an opportunity to cross-examine him about his [criminal history] was harmless beyond a reasonable doubt." (Hull, supra, 31 Cal.App.5th at p. 1034.)
Defendant cites Hull, supra, 31 Cal.App.5th at page 1034, for the proposition that inability to cross-examine a witness at a preliminary hearing on prior convictions and a pending criminal case deprives the defendant of the constitutional right to cross-examination. Hull in fact declined to decide whether the prosecution's failure to disclose a witness's prior conviction deprived the defendant of an opportunity for effective cross-examination. (Ibid.)
As in Hull, the jury learned about Hendryx's prior convictions through the parties' stipulation. The jury was also aware of Hendryx's then-pending case for evading the police, possession of a firearm, and possession of cocaine from the evidence. As in Hull, the jury was instructed that a witness's crime or misconduct could be considered only in evaluating the witness's credibility. (CALCRIM No. 316.) Defense counsel, in closing argument, urged that Hendryx was not a credible witness for reasons including his criminal conduct. Arguing that Hendryx was facing serious felony charges arising from the high-speed chase and "trying to help himself," counsel told the jury, "Don't let [the prosecutor] fool you about these no benefits. If he wasn't trying to help himself, he'd be sitting in [defendant's] chair. This idea that [Hendryx and Butts] have not gotten benefits from the government is laughable." Counsel further asked the jury to consider, in evaluating Hendryx's credibility, the fact that he failed to testify at trial despite the government having "chosen to not charge [him] with homicide, but instead use him as a cooperating witness and give him immunity. The jury was fully able to take the evidence of Hendryx's past and pending criminal conduct into consideration in evaluating the credibility of his preliminary hearing testimony.
As earlier described, Cardoza testified he had not done anything to obtain leniency or benefits for Hendryx in his pending case, and Perkins (the prosecutor who handled the preliminary hearing) testified that Hendryx was explicitly told the district attorney's office was not promising him any assistance on his pending case. Perkins testified that Hendryx was granted use immunity for the preliminary hearing because he would not have testified otherwise, and that this meant what Hendryx said at the hearing could not be used against him, but did not protect him from prosecution based on other evidence.
The situation with regard to the confidential informant and Gordon's assault on Reboredo is more complex. Although the record is not crystal clear as to when the defense first learned of the existence of an informant who claimed to have heard Gordon admit killing Reboredo and the fact that Gordon had assaulted Reboredo several months earlier, the discovery receipt for the draft OPD incident report relating Clubb's communication of these facts is dated March 3, 2017-several months after the preliminary hearing. The details of the informant's statement and the April 2016 incident were not provided to the defense until November 14, 2018, and the actual identity of the informant was not provided until November 27, 2018-the day jury selection began in defendant's trial. It seems clear defendant's attorney at the preliminary hearing was not aware of Gordon as a potential suspect in the case and therefore could not question Hendryx about Gordon.
Megan Burns replaced Harper as defense counsel on November 13, 2017. After informal discovery, on September 26, 2018, Burns filed a motion to compel discovery, and the court's notes for October 17, 2018, indicate the prosecutor was to provide the discovery that day or the next. On November 5, 2018, Burns filed a motion to compel disclosure of the identity of the confidential informant referred to in the OPD incident report describing the conversation with Clubb. The prosecutor sought in-camera review of the confidential informant's statement, stating the informant was known to and in danger from the third party implicated in the statement.The same day, November 14, 2018, the court signed an order directing that the information, statement, and identity of the declarant be provided to defense counsel and that defense counsel not disclose the material to defendant or any party not a member of the defense team. Material documenting the informant's statements and the April 2016 paintball incident, including police reports and an audio recording of Edelman's police interview, were provided to defense counsel on November 14, but Edelman's identity was not disclosed; the parties subsequently agreed the written order was incorrect and the court had not ordered disclosure of the informant's identity.On November 27, 2018, the trial judge ordered immediate disclosure of the witness's identity, stating that the informant should have been disclosed prior to the preliminary hearing and that another judge with whom he had discussed the issue said the failure to disclose violated Brady. The court subsequently made clear that it did not make an actual finding of a Brady violation.
What is not clear is that this inability to question Hendryx at the preliminary hearing denied him an opportunity for effective cross-examination so as to preclude admission of the testimony at trial.
Defendant contends he was deprived of the opportunity to cross-examine Hendryx as to his relationship with Gordon, Gordon's reported admissions, and the surveillance tapes. But there is very little indication in the record that Hendryx knew Gordon, and no indication they knew each other in more than a passing way. The most defendant can point to is Hendryx's trial testimony-later stricken when he refused to continue his testimony-that he "might have seen [Gordon]" or "probably seen [Gordon] around, " and that a phone number connected with Gordon had two contacts in August 2016 with a number that Hendryx called once in September, which the defense argued showed Hendryx and Gordon were "involved in the same circle."
Hendryx's full response when shown Gordon's photograph was, "I might have seen him. I don't know the name or face. I probably seen him around." Hendryx testified he was "not too sure" whether he had seen Gordon, did not know his name, and did not know where he "hangs out."
The record leaves no question that Hendryx, using his own car, drove the shooter to the gas station: His description of the events was corroborated by the surveillance video. The record also makes clear that Hendryx was aware there were surveillance cameras at the gas station and encouraged the police to look at the footage from them. In cross-examining Hendryx, defendant could not change these basic facts; he needed to raise a reasonable doubt as to whether Hendryx lied in identifying defendant as the person he drove to the gas station. The evidence that Edelman reported hearing Gordon say he shot Reboredo and that Gordon had previously assaulted and threatened Reboredo obviously provided a basis for the jury to form a reasonable doubt as to defendant's guilt-and was presented to the jury for this purpose-but this evidence could have provided fruitful areas for cross-examining Hendryx only if there was reason to believe Hendryx would know something about these matters. This linkage is missing. Without it, we are hard pressed to see how the late-disclosed information could have deprived the defense of an opportunity to effectively cross-examine Hendryx that resulted in prejudice at trial. Indeed, it would have been an unjustified windfall to defendant to exclude Hendryx's preliminary hearing testimony on the basis that he could not be cross-examined on matters as to which he could not be expected to have any knowledge.
In any event, it is clear beyond a reasonable doubt that any error in admitting Hendryx's preliminary hearing testimony without cross-examination about Gordon's reported involvement or the surveillance footage did not contribute to the verdict. In reaching this conclusion, we are mindful that" '[a]n assessment of harmlessness cannot include consideration of whether the witness's testimony would have been unchanged, or the jury's assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence.'" (Hull, supra, 31 Cal.App.5th at p. 1035, quoting Coy v. Iowa (1988) 487 U.S. 1012, 1021- 1022, italics in Hull.)
First, of course, defendant's trial counsel was aware of the potential to use the information about Gordon for a third-party culpability defense and did so. Putting aside questions debated by the parties as to whether the defense should have moved to compel disclosure sooner than it did, or the prosecution should have sought a protective order permitting disclosure sooner, trial counsel was able to subpoena the relevant witnesses and put before the jury Edelman's statements about what Gordon said, details of Gordon's assault on Reboredo and threat to "get" him, and evidence of Gordon's criminal record.
Second, the evidence against defendant was far stronger than he suggests. Defendant views Hendryx as the most critical witness against him because Hendryx was the only witness who claimed to have seen defendant at the scene of Reboredo's murder. But Zelake testified that defendant told him he killed Reboredo only a couple of hours after it happened and directed Zelake to report his van stolen that morning. Zelake's testimony was corroborated in that there would have been no other reason for him to report the van stolen at 7:00 a.m. that particular morning, after it had been found, when it had been missing for weeks. Also, Zelake testified that defendant told him he used a nine millimeter Glock 17, consistent with the evidence based on the casings found at the scene. Zelake was a credible witness, lacking the drug use and criminal conduct that undermined the trustworthiness of most of the witnesses in this case. His testimony about his close relationship with defendant and defendant's mother further enhanced his credibility.
As will be further discussed in connection with another of defendant's arguments on this appeal, defendant attempts to undermine Zelake's credibility based on his testimony on cross-examination at the preliminary hearing that he was threatened by law enforcement with being sent to jail, never seeing his wife and child, and losing his child if he did not testify. That testimony, however, was refuted by Zelake's testimony on redirect at the preliminary hearing, and even more thoroughly at trial, that no such threats were made. Additionally, Zelake's testimony at the preliminary hearing suggests potential for misunderstanding about the threats he initially acknowledged: His discussions with the police and prosecutor included matters such as the consequences of filing a false police report and perjury, Zelake's English was, by his description, "not good," and the transcript reflects that he paused a number of times before answering questions, which he testified was because he was trying to understand what the questions meant.
Butts also provided evidence that defendant admitted the shooting. Defendant claims Butts never actually said defendant admitted the murder- only that he committed acts consistent with murder-but this is not accurate. Butts testified that defendant did not "directly" state that he killed Reboredo and that he "assumed" what happened. But he also testified that he was truthful when he told the police that defendant "said well, I had to shoot him. . . . I told him I was going to shoot him. So I had to just shoot him. I promised him I would shoot him if he didn't bring back the van. He didn't bring back the van so I shot him."
Butts was a far less credible witness than Zelake, given his character and the many inconsistencies in his statements to the police and testimony. To name just a few of the inconsistencies, Butts repeatedly told the police the gun used in the homicide was a Beretta, then at trial said it was a Glock; he first said the real gun he hid in his room disappeared the same day he disposed of the replica, then said it disappeared some weeks later; he told the police he woke up to find the gun in the car with him, then said "really Hendryx handed it to him," and at trial said he did not remember how it got in the car; Millard denied Butts's account of her being with him when he disposed of the gun (although her credibility on this point could be questioned due to her memory problems and admission that she did not remember what happened in the summer of 2016); the police did not find the gun and explosives Butts said were in defendant's room or the items he said might be in the van at the warehouse. Nevertheless, Butts's basic story-that defendant shot Reboredo because he was angry about Reboredo having taken Zelake's van-was consistent with Zelake's. Moreover, as the prosecutor pointed out in argument to the jury, the fact that Butts volunteered he had information about an Oakland homicide is significant: He would hardly have raised the matter with the police if in fact he was the shooter, as the defense theorized.
Defendant was also linked to the murder by the evidence that a cell phone number identified as his activated a cell tower near the Chevron station at 3:55 a.m. on July 14, 2016, then "went dark." Defendant argues there was no proof the phone was actually his or that it was him using it, citing what his brief describes as the cell phone expert's testimony that the number was "provided by an individual as a number connected with" defendant. The quoted description is in fact defense counsel's statement clarifying that the defense was not stipulating it was defendant's phone. The phone number that activated the cell tower near the Chevron station was given to Cardoza as defendant's by Zelake, who located it in his own phone during his testimony at trial. According to the expert, if the cell phone had been at defendant's warehouse on East 12th Street, it would have had to bypass 20 towers to activate the one near the Chevron station.
Zelake provided Cardoza both defendant's "old" cell phone number and the "new" one defendant called Zelake from after the murder. The number that activated the tower near the Chevron station was the one Cardoza recorded in his incident report as the "old" phone number. Zelake had testified this number was the "new" one.
Against this evidence, defendant's attempts to establish a defense or create reasonable doubt were weak. His alibi defense depended upon a witness whose credibility was undermined by her relationship with defendant, inconsistencies in her account (including as to how much of the night she was in fact with defendant), and lapses of memory; the level of detail she related about the night of the murder was at odds with her inability to remember anything about dates a few days earlier, considering that she did not know at the time there was anything significant about the night of July 14, 2016. Her testimony that she knew defendant did not leave the warehouse that night because she had his keys was not particularly relevant given that if defendant was the person who shot Reboredo at the gas station, he went there as a passenger in Hendryx's car.
Defendant's attempt to portray Gordon as the actual shooter was also weak. Edelman's credibility was undermined by the inconsistencies in her police statements and testimony as to whether she herself heard Gordon or was told what he said by Martins, and the suggestion that she changed her story to portray herself as having heard Gordon directly because she would only be paid as an informant for firsthand information. Her report was completely contradicted by Martins, who denied even being at the gathering at Buddy's house (although Martins's credibility also could be questioned in light of her initial attempt to deny knowing Edelman and her obvious fear of testifying). Many of the details of Edelman's testimony were contradicted by her own prior statements or other evidence. For example, she testified that she spent time with Gordon "once" and did not remember telling the police she had known him a long time, but her statements to the police included that she had "met him a million times," had "many conversations" with him, and "smoked dope with him . . . hours on end." She did not remember selling Gordon a gun or telling the police she did this, but her police statement reflected her saying she sold him a brand new Glock 17 in 2012. Edelman overstated what the police paid her for information, testifying that it could be as little as $250 and sometimes thousands of dollars, while Clubb testified the most she was ever paid was $800 and the least was $50. Edelman also testified that she suffered memory problems due to a stroke in 2009 and a more recent incident.
The jury was aware that Gordon assaulted Reboredo and threatened to "get" him several months before the homicide, but also that Reboredo told the police he and Gordon had made amends, and Gordon was not prosecuted for the assault, thus undermining the defense's revenge theory. Defendant attempts to bolster the case for Gordon being the shooter by pointing out that Gordon and his friends had access to a black Jeep and a black Jeep was present at the Chevron station. Edelman told the detectives about a black Jeep at the Polaris Avenue house that anyone could use because the keys were always in it, saying she noticed around 11:00 p.m. the night Reboredo was shot that the Jeep was not where it had been outside the house. Edelman's discussion with the police, however, referenced a Jeep Cherokee, which Cardoza testified is a hard top vehicle; Cardoza described the Jeep in the surveillance footage, which has an open top, as looking like a Jeep Wrangler. Moreover, any implication that Gordon went to the gas station in the Jeep would be inconsistent with his being the shooter, as the video footage shows the apparent shooter getting out of Hendryx's car, as well as inconsistent with Gordon's cell phone having activated a tower near the Polaris Avenue house at 3:17 a.m., since Edelman noticed the Jeep was gone at 11:00 p.m. Defense counsel's argument at trial was that the Jeep's "job" was to get Reboredo to the gas station.
In the end, the defense argued Butts was the shooter, based partly on his knowledge of the details of the incident, but mostly on the surveillance video of the person running from the gas station, which defendant describes as depicting a person with "dark hair of ordinary length" like Butts's and unlike defendant's bald head. As earlier indicated, defendant's driver's license photograph, taken two weeks prior to the homicide, shows very closely cropped dark hair. The photograph of Butts in evidence shows significantly more hair, which is indeed more consistent with the video. The video is so blurry, however, that the dark head would also be consistent with a hat or other head covering.
The image in the video does not appear to be consistent with the "wig" or hairpiece found in defendant's warehouse, which appears to be several inches long.
Defendant argues that without Hendryx's testimony-and Cardoza's testimony regarding Hendryx's statements, which would not have been admissible if Hendryx's testimony had been excluded-the jury "most likely" would have had a reasonable doubt which of the two admissions (defendant's or Gordon's) was true and whether Butts was in fact the shooter, based on video. Any of the defense evidence could have created a reasonable doubt in a juror's mind as to whether defendant was in fact the person who shot Reboredo. The jury saw the video and heard defense counsel's argument that the person running looked like Butts. The jury was informed of Gordon's assault on Reboredo and threat to "get him," Edelman's claim that Gordon admitted killing Reboredo, and Gordon's arrests and convictions for drug and weapons offenses. The many inconsistencies in Butts's testimony and statements were demonstrated, and the defense argued that Zelake testified only because of threats by the police.
The unanimous guilty verdict shows the jury did not find any of this sufficient to create a reasonable doubt. We see no basis for concluding Hendryx's testimony made the critical difference. Hendryx was not an inherently credible witness. The jury was informed of his criminal history, which included significant drug and weapons offenses, as well as reckless evasion of the police, vehicle theft, and assault. Defendant argues the facts that the jury deliberated for two days where the only issue was identity, and asked to see a transcript of Hendryx's testimony, shows the case was close and Hendryx's testimony likely made a difference. But the jury asked to see a great deal of evidence-in addition to readback of Hendryx's testimony and transcripts and recordings of his police interviews, it asked for the transcript of Zelake's preliminary hearing testimony, the transcript of Butts's preliminary hearing testimony and recordings of his police interviews, the surveillance video, and defendant's driver's license. The jury was clearly attempting to weigh the evidence carefully, but that does not demonstrate Hendryx's testimony was its primary focus.
The court told the jury it would be given the driver's license and video; it could hear Hendryx's preliminary hearing testimony read or request specific portions to be read; it could ask to be read specific portions of Butts's and Zelake's preliminary hearing testimony; and the recordings of police interviews were not admissible.
We conclude defendant was not prejudiced by the admission of Hendryx's preliminary hearing testimony despite the prosecution's failure to provide the defense with Hendryx's criminal history and information about the confidential informant prior to the preliminary hearing.
Ineffective Assistance of Counsel
Defendant also argues his preliminary hearing testimony should not have been admitted because he was denied an opportunity for effective cross-examination due to his then-attorney's deficient representation. Defendant argues Harper failed to file motions for discovery of the informant's identity and Hendryx's criminal history (or any other discovery motion or other type of motion during the year he represented defendant); did not examine the surveillance video from the Chevron station; did not conduct any investigation until his request for investigative funds was granted 10 months after he was appointed, by which time former residents of the warehouse could not be located as potential alibi witnesses; and, by the time of trial, was under investigation by the Alameda County appointed counsel program (CAAP) for claiming compensation for hours he did not work in this and other cases.
Many of the asserted deficiencies in representation are documented in the record. For example, although it appears Harper did not receive the draft incident report referring to Gordon's reported admission and prior assault on Reboredo until March 2017, after the preliminary hearing, Harper continued to represent defendant until November 2017, and apparently did not file any motion to compel discovery or disclose the identity of the informant. Harper apparently did not review the surveillance footage from the gas station cameras: According to the declaration of trial counsel, the CD purporting to contain the surveillance footage, which she received when Harper provided to her the materials he had received from the district attorney's office, was blank. Thus it appears Harper either never looked at the CD or was aware the CD was blank, but did not inform the prosecutor or Burns.
Defendant asserts that Harper conducted no investigation for almost 10 months after being appointed to represent defendant, pointing to an August 25, 2017 email transmitting to his investigator "the approval" and "some of the initial OPD docs." At a Marsden hearing on October 20, 2017, one of defendant's specific complaints was that Harper failed to follow up on information defendant gave him about a potential alibi witness, with whom defendant said he was cleaning the dance floor at the warehouse the "entire evening," despite defendant having provided contact information for the person's employer. Harper told the court it had been hard to investigate the case partly because "witnesses who are living at this warehouse scattered to the wind" and went by nicknames and monikers. Appellate counsel represents that after the Ghost Ship warehouse fire on December 2, 2016 (two months after defendant's arrest and three weeks before the preliminary hearing), the owners of defendant's warehouse evicted all the tenants and the defense was unable to find most of them.
Harper was appointed to represent defendant on October 7, 2016.
Defendant also complained that counsel repeatedly promised to meet with him and send him case documents, including the video footage, but failed to follow up or to respond to defendant's and his mother's attempts to contact him; lied to defendant; and intentionally delayed the case despite defendant's repeated expression of his wish to stand on his speedy trial rights.
Depending when residents of the warehouse actually left, a point not established in the record, it might well have been difficult to locate potential alibi witnesses even if Harper had begun investigating immediately. The People's suggestion that defendant, as manager of the warehouse, would have had at least some knowledge of who the occupants were ignores the context of this residential situation, in which it appears common for individuals to know each other only by first names or street names and rent might be paid with services, as Butts testified was the case for him. On the other hand, according to defendant's testimony at the Marsden hearing, Harper failed to follow up even on a potential alibi witness who, although defendant knew only a first name, worked for an employer whose full name was provided to Harper.
We need not belabor the question whether Harper's representation was deficient. The trial court found the inadequacy "obvious" and the People make no effort to argue the contrary. But prejudice is a necessary element of ineffective assistance of counsel, and this is again where defendant's claim fails. As discussed above with respect to the Brady issues, the question at this point is whether Harper's deficient performance deprived defendant of an opportunity for effective cross-examination of Hendryx that was prejudicial at trial. We have already discussed our reasons for finding any error harmless with respect to the issues involving Hendryx's criminal history, Gordon, and the surveillance footage. (See People v. Wilson, supra, 36 Cal.4th 309, 347 ["defense counsel's ineffective assistance in the first trial . . . did not bear directly on his actual questioning of" witness whose prior testimony was admitted at second trial].) As to Harper's failure to investigate potential alibi witnesses and the conduct for which he was investigated by CAAP-billing for hours not worked in this and other cases- these matters are unrelated to Hendryx's testimony and, therefore, the opportunity for effective cross-examination of this witness.
II.
Defendant also contends the trial court erred in denying his motion for a mistrial when Hendryx refused to continue testifying at trial. He argues his chances of receiving a fair trial were irreparably damaged because he was unable to cross-examine Hendryx about Gordon's reported admission of killing Reboredo or about several facts stated in the trial testimony to which Hendryx did not testify at the preliminary hearing.
Hendryx testified on direct examination that he could not read and had trouble comprehending; he had his four children's birth years tattooed on his chest because he could not remember them. At the time of trial, a criminal case was pending against him for evading the police and possessing a firearm, although he denied being charged with assault with a weapon and denied that he was driving a stolen car. After his arrest, he spent three days in the hospital due to congestive heart failure and then was taken to OPD and placed in an interview room. When first told he had been arrested for homicide and evading the police, he thought someone had died in the vehicle chase, and it was "a little relief" when he was told the homicide had to do with something different that happened in West Oakland.
Hendryx testified that the officers said they "had me on video killing somebody" and were "fishing . . . like violate my rights," then "took me to go use the bathroom, whatever, and they was just like try to say it was [defendant]." The officers asked questions about defendant and Reboredo, showed Hendryx pictures of the gas station, and asked when he was there. He repeatedly told them to look at the surveillance video, that it would tell them everything.
Hendryx was aware defendant had been looking for a van and had taken defendant to a couple of places where Hendryx had seen Reboredo. On the night Reboredo was killed, Hendryx was driving to the gas station to get GHB from someone he had met at the warehouse on 12th Street. Defendant came with him, and on the way, it became apparent he was still looking for his van. Hendryx pulled into the gas station from the San Pablo side and drove around the pumps. He was driving one of the two Hondas he owned at the time, one of which was black and the other burgundy red; when the police showed him a photograph of a Mercedes wagon, Hendryx said this was not the car he was driving, it had to be one of the Hondas.
Hendryx testified that he and his wife took GHB as an "enhancement."
The person Hendryx was supposed to meet at the gas station was driving an open Jeep, which Hendryx saw pull into the gas station and stop by the driveway. He told the police it was whitish, but he did not pay attention to the color. There was a parked van, and defendant said," 'Let me see if that's my van'" and got out the front passenger door, the side closest to the van. Hendryx drove toward the Jeep. He heard two or three "fires of firecrackers or gunfire" and the Jeep sped off. Hendryx drove out onto 35th Street, then pulled over after four or five houses and waited, because he was not sure what was going on. He heard some more gunshots, then defendant got in the car, said something like," 'Motherfucker, shooting, '" and asked for a ride to see if Reboredo and the van were at the Port of Oakland. Hendryx wanted to go home because his wife needed the car in the morning, so he took defendant back to the warehouse.
Hendryx testified that the vehicle was a "Jeep or Toyota Land Cruiser," that "type" of vehicle.
Hendryx knew his police interview was being recorded. He acknowledged saying, "I don't want to have nothing to do with it in court or nothing," but did not remember saying he was scared. Asked whose safety he told the police he was scared for, he replied, "Probably my wife's. That's the only one I worry about, my wife." Asked whether he said he was scared for his family, Hendryx stated, "I always worry about my family." He acknowledged having told the police repeatedly that he was scared for his family, but testified, "not from nobody particular." He denied saying he wanted "nothing to do with it in court . . . [b]ecause the same shit that happened to [Reboredo] . . . will happen to me by the same person.' "
At this point, Hendryx interjected, "Judge, I just want to go to jail. . . . I said I want to plead the Fifth and I don't care." The court told the jury that Hendryx had a lawyer in court and had previously said he was going to "take the Fifth Amendment," the prosecutor had given him immunity, the court had explained to him that this meant nothing he said in court could be used against him in any case and told him he was compelled to answer all questions or go to jail if he did not, and Hendryx had agreed to answer all questions.
Outside the presence of the jury, Hendryx said he would continue to refuse to answer further questions and the court remanded him to custody. Defense counsel moved for a mistrial, which was denied, and objected to admission of Hendryx's preliminary hearing testimony, arguing he was not effectively cross-examined at the preliminary hearing due to Brady violations and ineffective assistance of counsel. The court stated the preliminary testimony would be admitted if Hendryx maintained his refusal to testify, noting, "[t]here's a difference between turning over exculpatory evidence and failure to do so and what the remedy is. And there's materiality for the remedy. That train's left. . . . It's obviously ineffective assistance of counsel. That doesn't mean the remedy is dismissal especially where it's not the prosecution's fault." The court further stated for the record, "what was different from his [preliminary hearing] testimony, I don't think he expressed fear. . . . He did here. He also brought in how he has a wife and four kids, and he also-I don't know if it was feigned, it may have been ignorance or stupidity, but that was not apparent from the preliminary hearing transcript. I don't know if the jurors felt it was feigned, an act or not, but that's something that they already heard and it's hard to strike."
Hendryx's refusal to testify did not change, and the court granted the prosecutor's motion to find him unavailable and admit his preliminary hearing testimony. The court explained the situation to the jury and instructed that his direct testimony was stricken, "[s]o you're to disregard everything he said yesterday. I know that's not easy to do, but that's the law. You're not to consider anything that he said yesterday at all."
"A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial." (People v. Silva (2001) 25 Cal.4th 345, 372.) "A court should grant a mistrial motion based on a witness's statement if it judges the defendant has been prejudiced in a way that an admonition or instruction cannot cure. Because this is inherently a speculative matter, the trial court has considerable discretion in ruling on a mistrial motion." (People v. Rices (2017) 4 Cal.5th 49, 92.)
Defendant's claim that his chance of a fair trial was irreparably damaged by Hendryx's refusal to testify further at trial is based in large part upon his inability to cross-examine Hendryx about Gordon and the evidence that Gordon admitted killing Reboredo. As we have discussed, the jury heard evidence that Gordon was overheard admitting the killing, that Gordon had previously assaulted and threatened Reboredo, and that Gordon had a history of drug and weapons offenses. There was minimal evidence of any connection between Hendryx and Gordon. For the same reasons we found the inability to cross-examine Hendryx on these issues did not deprive defendant of an opportunity for effective cross-examination, or at worst was harmless beyond a reasonable doubt, the trial court's denial of the mistrial motion on this basis was not an abuse of discretion.
The remainder of defendant's argument is based on issues stated in Hendryx's later-stricken direct testimony that were not part of his preliminary hearing testimony. First, Hendryx testified at trial that as defendant got back into his car, Hendryx heard shots and defendant said, "Motherfucker, shooting." Defendant argues this testimony put him in "closer physical and temporal proximity to the shooting" than Hendryx's preliminary hearing testimony. At the preliminary hearing, Hendryx testified that he heard shots as defendant got back in the car, but did not mention defendant saying anything at that point. It is not at all clear to us that the jury would have drawn the inference of proximity that defendant suggests; Hendryx's preliminary hearing testimony that he thought defendant was being shot at conveys a similar sense of defendant being in the midst of the shooting. In any event, there is nothing so inherently prejudicial in the comment that the jury would have had trouble following the court's admonition to disregard it.
Of potentially more concern, as the trial court observed, Hendryx's preliminary hearing testimony did not mention the concern for the safety of his wife and children that he addressed in his trial testimony. The trial court acknowledged such testimony is "hard to strike." The implication that Hendryx was afraid to testify was somewhat weakened, however, by his insistence that he always worried about his family and was not scared because of anyone in particular. Moreover, Cardoza testified extensively about Hendryx's refusal to name the shooter while on camera in the interview room and expressions of fear that if he did, the person would kill him or his family, including a statement that Hendryx specifically denied-"I don't want nothing to do with it in court or nothing . . . [b]ecause the same shit that happened to him will happen to me by the same person." The jury was instructed that it could consider evidence of Hendryx's statements to Cardoza "in deciding whether to believe" Hendryx's preliminary hearing testimony. (CALCRIM No. 319.) Hendryx's testimony on direct was far less powerful evidence of fear than what the jury heard about his statements to the police.
Defendant next points to Hendryx's testimony on direct examination that he had four children and that he was hospitalized for congestive heart failure after his arrest in September 2016, which defendant sees as tending to draw sympathy toward Hendryx. The jury knew Hendryx had children from the multiple references in his police statement to concerns for their safety. And while Hendryx did not refer to "congestive heart failure" at the preliminary hearing, he did testify he was hospitalized after his arrest due to "heart problems," specifically "two messed up valves."
Finally, defendant notes Hendryx's trial testimony that he told defendant he would drive him to the Chevron station because Hendryx had previously seen Reboredo near there. Defendant argues this testimony supported the prosecution's theory that defendant was looking for Reboredo and there was no such testimony at the preliminary hearing. Hendryx testified at trial that he was aware defendant was having trouble finding a van he was looking for; asked if he had ever taken defendant to the homeless encampments to look for the van, Hendryx said he had taken defendant to "a couple of places where [Hendryx] had seen [Reboredo] in the crossings." On the night of the shooting, Hendryx was going to get GHB and defendant "went for the ride with me," and as they were driving, it became apparent defendant was still looking for the missing van. Hendryx's preliminary hearing testimony was that he and defendant "were looking for the guys who had GHB. And we also went looking for his work van that was borrowed and wasn't returned." We fail to perceive a meaningful distinction the jury could have drawn between these testimonies, much less anything prejudicial in the stricken trial testimony that an admonition could not cure.
Cardoza testified that Zelake said he believed Reboredo was staying at a homeless encampment near the scene of the homicide and had driven there with defendant looking for the van.
The trial court's determination that a mistrial was not warranted was well within its discretion.
III.
Defendant next argues the prosecutor committed misconduct by telling the jury in his opening statement that Hendryx told the police he was afraid of defendant and "you don't know what [he is] capable of." He maintains these statements were improper because there was no actual evidence to support them, they effectively made the prosecutor a witness and they amounted to vouching for Hendryx's courage and credibility.
In his opening statement, the prosecutor told the jury that when Hendryx was interviewed after his arrest, he initially said he did not know anything about the murder, then became more forthcoming, but refused to identify defendant in the interview room where he knew he was being recorded. The prosecutor stated, "He says look, you got to understand. I'm afraid of this person. You don't know what they're capable of. He refuses to say any more about I.D." The prosecutor went on to explain that Hendryx described the events to the police, referring to the person he was with as "Mr. X," and Hendryx identified defendant only after the police took him out of the interview room and surreptitiously recorded their conversation. After describing the testimony, the jury would hear from Zelake and Butts, the prosecutor returned to Hendryx, saying that when he met with Hendryx and his attorney the day before, Hendryx did not want to testify despite having been given immunity.
Defense counsel did not object to the remark about Hendryx's fear; she objected only later in the opening argument, after the prosecutor stated that when he met with Hendryx and Hendryx's attorney, "Hendryx's position is at that time 'I don't want to testify.'" At the ensuing discussion in chambers, the court stated its understanding that Hendryx was not going to testify and told the prosecutor, "You're saying what he's going to say, but he's not going to testify." The prosecutor responded, "I'm allowed to give a statement on what I expect. I still expect he's going to say something on Monday. I don't know. The last thing they said was we'll be in touch." Defense counsel argued that the court had previously ordered issues about Hendryx's testimony were to be dealt with outside the presence of the jury and the prosecutor's "inserting essentially his testimony in his opening statement" was improper and constituted misconduct. Both the court and defense counsel understood from prior discussions that Hendryx was likely to "take contempt" rather than testifying; the prosecutor stated, "I don't have that sense." The court warned the prosecutor, "Be careful from now on. I don't want anything about whether he's going to take the Fifth or not . . . ." Defense counsel moved for a mistrial, which the court denied "right now," saying it did not know what would happen and hoped Hendryx would in fact testify. The prosecutor stated, "I don't know that he's not going to testify. I have good faith that he will[, ] given he did it at the preliminary hearing."
Back with the jury, the prosecutor continued his opening statement with, "Mr. Hendryx is a witness. So when witnesses testify, if they express fear, then that's something you can consider as jurors." The prosecutor then told the jury Hendryx had refused to testify at the preliminary hearing without immunity and therefore was granted use immunity, explaining that Hendryx "didn't want to incriminate himself" and the immunity "meant even if he admitted to wrongdoing, he would not be prosecuted based on what his statements were. . . . He can be prosecuted independent from other evidence, but not based on what he said." The prosecutor went on to describe what Hendryx had said at the preliminary hearing and to the police.
Defendant complains that the trial court gave a "luke-warm curative instruction, saying that it is all right for a witness to express fear" that was insufficient to solve the problem. Defendant's brief provides no citation and our review of the reporter's transcript found no admonition from the court concerning the prosecutor's remarks, only the prosecutor's statement that the jury can consider a witness's expression of fear.
" 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. Berryman (1993) 6 Cal.4th 1048, 1072.)'" (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill), quoting People v. Samayoa, supra, 15 Cal.4th at p. 841.) Neither of the parties appears to recognize the applicability of this rule here. The objection at trial was to the prosecutor's comment regarding whether Hendryx would testify and this was the subject of the in-chambers discussion; counsel neither objected to the comment about Hendryx expressing fear nor mentioned it in arguing the prosecutor committed misconduct and requesting a mistrial.
The only mention of the comment about Hendryx's fear in chambers was by the court: Reiterating that issues about Hendryx refusing to testify were not supposed to be discussed in front of the jury, the court stated that defense counsel now wanted to be able to ask about the conversation "between the lawyer and the client in regards to what you were talking about. One reason could be, which you stated, that he's afraid. He wouldn't testify because he's afraid of the defendant. Another is that he's responsible somehow for the crime itself. . . ."
In any event, defendant's claim on appeal is unavailing.
" 'A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury.'" (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305, quoting People v. Morales (2001) 25 Cal.4th 34, 44.)
The essence of defendant's claim is that it was improper for the prosecutor to refer to Hendryx having said he was afraid of defendant because Hendryx did not in fact so testify. The People maintain there was no misconduct because the prosecutor was referring to evidence he expected to present and Cardoza testified that Hendryx made the statements to the police that the prosecutor described, including that defendant would kill Hendryx or his family, or have them killed, if he knew Hendryx identified him, and that the police would "never get me to go on the stand."
We are not convinced any misconduct occurred. The prosecutor's description of what he expected Hendryx to say was consistent with what Hendryx in fact said in his subsequently stricken direct testimony and what Cardoza testified was said in the witness's police interviews. Moreover,"' "[p]rosecutorial misconduct in an opening statement is not grounds for reversal of the judgment on appeal unless the misconduct was prejudicial or the conduct of the prosecutor so egregious as to deny the defendant a fair trial."' (People v. Wrest (1992) 3 Cal.4th 1088, 1109.)" (People v. Flores (2020) 9 Cal.5th 371, 405.) That is not the case here.
Remarks made to the jury must be viewed "in the context of the argument as a whole (People v. Dennis (1998) 17 Cal.4th 468, 522) and, to prevail," 'the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (People v. Dykes (2009) 46 Cal.4th 731, 771-772, quoting People v. Frye (1998) 18 Cal.4th 894, 970, overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Defendant's interpretation of the prosecutor's remarks stretches the meaning a reasonable juror would have attached to them. Defendant argues that "[b]y saying Hendryx was 'afraid' of [defendant], and by quoting Hendryx as saying, 'You have no idea what he is capable of'" the prosecutor effectively turned himself into a witness who was not subject to cross-examination, depriving defendant of his constitutional rights. But it is clear, read in context, that the prosecutor was discussing evidence of what Hendryx told the police after his arrest, not anything the prosecutor himself heard or observed.
Defendant argues that "the prosecutor's claim that Hendryx would be testifying before the jury, even though he was afraid of [defendant], made Hendryx look courageous," thereby amounting to improper vouching for Hendryx's courage and credibility." 'Improper vouching occurs when the prosecutor either (1) suggests that evidence not available to the jury supports the argument, or (2) invokes his or her personal prestige or depth of experience, or the prestige or reputation of the office, in support of the argument.'" (People v. Rodriguez (2020) 9 Cal.5th 474, 480, quoting People v. Anderson (2018) 5 Cal.5th 372, 415.)
As we have said, the fear of defendant that Hendryx expressed in his police interview was put in evidence through Cardoza's testimony.Moreover, contrary to defendant's characterization, the prosecutor did not say Hendryx would be testifying before the jury despite his fear of defendant. In fact, the prosecutor never said in his opening statement that Hendryx would be testifying. While the prosecutor told the jury it was "going to hear from" Zelake and Butts, and described what each "is going to tell you," with respect to Hendryx, the prosecutor only discussed what Hendryx said at the preliminary hearing. The prosecutor summed up this part of his opening statement: "Mr. Zelake, who will explain his relationship to the defendant. Mr. Butts, who will explain his relationship to the defendant, as well as his role after these events. He'll also explain why he did what he did and why he decided to change his ways and tell the truth. [¶] Mr. Hendryx, again, he testified at the preliminary hearing.
Defendant points out that Cardoza's testimony was hearsay, admissible only as a prior inconsistent statement (Evid. Code, § 1235) if Hendryx testified, and would not have been admissible if Hendryx's preliminary hearing testimony had been excluded. This point is of no moment, as we have upheld the admission of the preliminary hearing testimony.
The prosecutor told the jury Hendryx had said he did not want to testify, but tied this to Hendryx's concern about self-incrimination, not fear: "When he was told that he would be given immunity, like he was at the preliminary hearing, he said he still doesn't want to testify. . . . When it came time for Mr. Hendryx to testify at the preliminary hearing, he refused to testify without immunity. What that meant is he didn't want to incriminate himself and those words he used against him to prosecute himself later for his role in this case. So he was granted immunity, which meant even if he admitted to wrongdoing, he would not be prosecuted based on what his statements were."
In short, defendant's characterization of the prosecutor's opening statement invests it with meaning and significance exceeding what a reasonable juror would have drawn from it. Furthermore, the prosecutor's comments about Hendryx's fear, which were supported by Cardoza's testimony, were consistent with other evidence in the case. Zelake told the police defendant said he would kill him if he told anyone about the shooting, and when the officers asked if Zelake believed defendant, Zelake replied, "Like I told you, this guy's crazy. I mean look at him." Cardoza testified that Zelake said something to the effect that Cardoza "didn't understand what [defendant] was capable of" and repeatedly said he was scared for himself and his family if defendant found out he provided information to the police. Butts repeatedly asked the police if his name could be "kept out of this" so defendant would not find out Butts had given him up, because he was afraid of what could happen if the "streets" found out he "snitched." Butts testified that part of the reason he needed money to move was that it became known that he had snitched.
Defendant argues the prosecutor's opening statement was prejudicial for the same reasons discussed in People v. Centeno (2014) 60 Cal.4th 659, noting the Centano court's statement that "[a] jury may only decide the issue of guilt based on the evidence presented at trial" and conclusion that the error was prejudicial because the case "involved starkly conflicting evidence and required assessments of witness credibility," and the key witness's testimony was inconsistent. (Id. at pp. 679-670.) The error in Centeno was in closing argument: The prosecutor used a visual aid and hypothetical to illustrate the concept of reasonable doubt which the court described as having nothing to do with the case or evidence and "purporting to relate the exacting process of evaluating the case to answering a simple trivia question." (Id. at p. 671.)
The issue here is in no way similar. The challenged remark was in opening statement, describing what the prosecutor expected the evidence to show, and although the evidence did not in fact show Hendryx making the precise statement the prosecutor attributed to him, it was consistent with the prosecutor's description of Hendryx having expressed fear of defendant. Contrary to defendant's claim that the prosecutor's remark was tantamount to evidence defendant had committed other crimes, the prosecutor did not describe specific threats or other crimes; the fear the prosecutor described was a more generalized fear of what defendant was "capable of." In any event," '[e]vidence that a witness is afraid to testify or fears retaliation for testifying is relevant to the credibility of that witness and is therefore admissible.'" (People v. Mendoza (2011) 52 Cal.4th 1056, 1084, quoting People v. Burgener (2003) 29 Cal.4th 833, 869.)
Citing People v. Guerra (2006) 37 Cal.4th 1067, 1141-1142, defendant maintains that "a different rule applies, when the witness testifies he is afraid of the defendant, but when there is no evidence that the defendant, or any agent of the defendant, did anything to cause any such fear. Under such circumstances, the trial court should instruct the jury that the threats may not be attributed to the defendant." Guerra reiterated that evidence a witness is afraid to testify is relevant to credibility, as is evidence of the basis for the witness's fear. (Ibid.) In holding the trial court properly exercised its discretion in admitting the testimony at issue in that case-two witnesses who testified they feared retribution, only one of whom had personally received or heard of a threatGuerra noted that the trial court had instructed the jury it was entitled to consider the witnesses' hesitancy in responding to questions in evaluating their credibility and "further admonished the jurors that if they believed the statements were made, they must not attribute them to defendant." (Id. at p. 1142.) Guerra did not indicate admission of the evidence would have been an abuse of discretion absent that further admonition, and defendant here points to no authority imposing a sua sponte duty to give such an instruction. Moreover, the issue here is not admissibility of evidence, but a comment on expected evidence in opening argument, long before any such instruction would be given.
Our conclusion that there was no prejudicial prosecutorial misconduct in opening argument necessarily requires us to reject defendant's argument that the trial court erred in granting his motion for mistrial. Defendant relies upon People v. Thomas (1975) 47 Cal.App.3d 178, which held a mistrial motion should have been granted where the trial court discovered, after impaneling the jury, but before testimony began, that four jurors read a newspaper article reporting that a codefendant had pleaded guilty and been sentenced. Thomas held the trial court erred in denying the motion for mistrial because the "likelihood of prejudicial effect upon the minds of the few jurors who saw the article was obviously substantial" and the trial court's determination that eight jurors had not seen the article indicated it would not be difficult to select a new jury free of improper influence. (Id. at pp. 181-182.) Here, the remark defendant now challenges was not similarly improper or prejudicial.
IV.
Defendant contends both Harper, at the preliminary hearing, and Burns, at trial, rendered ineffective assistance of counsel by failing to move to exclude the portions of Zelake's testimony claiming defendant admitted shooting Reboredo on the grounds that threats by the police rendered his police statement and testimony involuntary.
On cross-examination at the preliminary hearing, Zelake was asked whether anyone from the district attorney's office or any law enforcement agency threatened him "with filing a suit against you for filing a false police report if you didn't come here today" and Zelake replied, "Yes." Asked if "they talk[ed] to you about taking your child away from you," Zelake responded, "[t]hey say I would go to child protective," and testified that he was told he would go to jail and never see his child and wife again if he did not come to testify and that he told defendant's mother he felt he had been threatened by the district attorney. Zelake also testified he was afraid he would be deported, but this was his personal fear and not something anyone told him.
On redirect, Zelake testified that the prosecutor did not tell him he would go to jail if he did not testify and never told him he was going to lose his wife and child. He stated that the prosecutor told him the judge might ask him about having filed a false police report and said the district attorney's office was going to drop these charges and not prosecute him; she also told him he was entitled to an attorney and asked if he wanted one, and Zelake declined. Zelake denied telling defendant's mother that the prosecutor was threatening him with jail time if he did not testify; asked why he had just told defense counsel the opposite, Zelake responded, "Because Sergeant Cardoza said . . . if I don't tell the truth . . . I'll be charged with false police report." Zelake also testified that Cardoza explained perjury to him, told him it was against the law to lie in court and said if he did not tell the truth, he would be charged with making a false police report, and that the prosecutor told him his one job in court was "[t]o tell the truth." When defense counsel asked, on recross, whether Zelake remembered him asking if the district attorney had "told you that you needed to come here today and state that [defendant] told you that he killed [Reboredo]" and Zelake replied, "Yeah, but they told me to tell the truth."
As previously described, Zelake testified at trial that prior to the preliminary hearing, no one from the prosecutor's office or police had threatened him with deportation or loss of his children. When defense counsel asked Zelake about his statements to the contrary at the preliminary hearing, Zelake testified that he did not remember and the court took judicial notice of the transcript. On redirect, Zelake confirmed that the transcript of his interview with Cardoza did not reflect any threats to deport him or take away his children and testified that he understood, because the prosecutor had explained, that it would be illegal for anyone from the district attorney's office to threaten him with deportation, and that no one was going to take his children or deport him if he did not testify.
Defendant relies primarily on Lynumn v. Illinois (1963) 372 U.S. 528, 534 (Lynumn), and People v. Trout (1960) 54 Cal.2d 576, 583-585 (Trout), to argue that threats such as the ones alleged here render a suspect's or witness's statements involuntary. He contends Harper rendered ineffective assistance of counsel by failing to move to strike and exclude the portions of Zelake's preliminary hearing testimony claiming that defendant admitted shooting Reboredo on the grounds that the testimony was involuntary due to threats by law enforcement. In defendant's view, there could not have been any valid reason not to do so, and the trial court would have been obliged to grant such a motion under Lynumn and Trout.
Lynumn, supra, 372 U.S. at page 534, held a confession made after the police told the suspect state financial aid for her young children would be cut off and the children taken from her if she did not cooperate was "not voluntary, but coerced." Trout, supra, 54 Cal.2d at pages 583-585, held a confession involuntary where "the reasonable conclusion to be drawn from the undisputed facts is that the police held Mrs. Trout in custody for the purpose of securing a confession from defendant." (People v. Cahill (1993) 5 Cal.4th 478, 509, overruled Trout's holding that admission of a coerced confession is reversible per se.)
Unlike the situations in Lynumn and Trout, where the coercion was essentially conceded, the accuracy of Zelake's initial testimony that he was threatened with loss of his children or never seeing them or his wife again was obviously undermined, if not directly contradicted, when Zelake himself also testified he was not threatened. Defendant argues that at the preliminary hearing, Zelake did not deny being threatened by the police. The prosecutor on redirect did not ask Zelake whether the police had threatened him, only whether she had done so. At trial, Zelake testified that he was not threatened by anyone from the police or the prosecutor's office.
This was not necessarily a considered decision that can be seen as supporting the inference that the police did threaten Zelake. Perkins testified at trial that she was "very shocked" by Zelake's testimony that he had been threatened, and her recollection, without having reviewed the transcript, was that Zelake retracted his statements and testified that no one had threatened him.
Moreover, as indicated earlier, there is reason to question how well Zelake understood everything discussed in his conversation with the prosecutor and Cardoza and exactly what he was being asked at the preliminary hearing when asked about being threatened by law enforcement. It is clear from Zelake's testimony that Cardoza and Perkins discussed several points with him-his testimony about defendant, the meaning of perjury and consequences of not telling the truth at trial, and Zelake's own liability for filing a false police report. Zelake testified that English was not his first language and his English was "not good," and that his pauses before answering some questions were due to his trying to understand what the questions meant. The potential for confusion and misunderstanding is apparent.
For example, one obvious inference that could be drawn from Zelake's testimony is that he was informed he could be prosecuted for filing a false police report, which could lead to his serving a jail term, but that he would not be prosecuted for this offense if he testified for the prosecution. In other words, some of the "threats" Zelake was questioned about could have related to consequences of Zelake declining to testify and foregoing the benefit offered to overcome his reluctance.
In these circumstances, we cannot accept defendant's assertion that the court would have been "obligated" to grant a motion to exclude Zelake's testimony at the preliminary hearing. Had such a motion been made immediately upon Zelake's testimony on cross-examination, undoubtedly it would not have been granted without an opportunity for redirect, and Zelake's redirect testimony, at the very least, raised serious question as to whether he had been threatened. Given Zelake's effective retraction of his testimony that he had been threatened in the manner he first indicated, we cannot conclude Harper's failure to move for exclusion of the testimony as involuntary fell below constitutional standards. And, in any case, we see no reasonable probability the court would have granted a motion to exclude the testimony as involuntary. (Strickland v. Washington (1984) 466 U.S. 668, 697 ["a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies"].)
We reach the same conclusion with regard to Burns's failure to move to exclude Zelake's testimony at trial. Defendant states that after Zelake testified at the preliminary hearing that threats by the police were the reason he claimed defendant had admitted killing Reboredo, Zelake "went sideways at trial, changed his testimony, and denied that the police had threatened to take his wife and child away." Defendant argues this trial testimony did not disprove his allegations of ineffective assistance of counsel because if counsel had moved before trial to exclude Zelake's preliminary hearing testimony as involuntary, there would have been no evidence to contradict Zelake's testimony that he was threatened by the police and the trial court would have been obligated to grant the motion.
Defendant's characterization of the situation ignores Zelake's testimony on redirect at the preliminary hearing, which at least undermined his direct testimony even if it did not directly contradict every aspect of the direct testimony. As we read the record, Zelake did not "go sideways" at trial; he gave testimony consistent with, but stronger than, his testimony on redirect at the preliminary hearing.
Defendant acknowledges that if Burns had moved to exclude Zelake's testimony, the prosecutor would probably have asked for an Evidence Code section 402 hearing, at which Zelake, deputy district attorneys, and officers might have testified. Defendant maintains, however, that because "it cannot be determined exactly what those witnesses would have said . . . there was no evidence on this point prior to trial, other than Zelake's [preliminary hearing] testimony that the police threatened him in that manner."
In our view, the testimony given at trial provides a strong indication of what witnesses would have said if examined on the matter before trial. At trial, Zelake testified unequivocally that no one threatened him before the preliminary hearing, the preliminary hearing prosecutor testified, as described above, that she did not threaten Zelake, and Cardoza testified he did not threaten Zelake. Cardoza also testified that he discussed the fact that filing a false police report was a crime in an "educational" rather than an accusatory manner. This subsequent testimony strongly suggests that a motion to exclude Zelake's testimony at the preliminary hearing would not have been successful.
Defendant points out that although Cardoza testified he did not threaten to take away Zelake's children in the interview on September 28, 2016, and any threats "of that nature" would have been captured on the recording, Cardoza acknowledged on cross-examination that he met with Zelake "several times" and had "some conversation that was chitchat outside of the official interview room." Defendant's suggestion that these unrecorded conversations could have been when the threats were made is, of course, completely speculative.
Even considering only Zelake's preliminary hearing testimony-taken as a whole-we cannot say Burns's failure to seek exclusion "fell below an objective standard of reasonableness." (Strickland v. Washington, supra, 466 U.S. at p. 688.) Counsel are not required to make futile motions. (People v. Frye, supra, 18 Cal.4th at p. 985, overruled on other grounds in People v. Doolin, supra, 45 Cal.4th at p. 421, fn. 22.) And, regardless, there is no reasonable probability the trial court would have granted a motion to exclude Zelake's incriminating statements as involuntary.
V.
Defendant also contends the trial court erred in failing to grant him a Marsden hearing prior to the preliminary hearing.
Defendant was charged by complaint filed on October 4, 2016, and arraigned the same day. Harper was appointed on October 7 and, after continuances, a plea hearing was set for December 9.
On November 28, 2016, the trial court received a letter from defendant addressed to Judge Delucchi, dated November 18 and postmarked November 22. The letter was stamped "Received Nov 28 2016." Handwritten notations in the top margin indicate the date of defendant's next hearing, "12-9-16, 9:00," his case number, and "Route to File - Scan," followed by "12/9/16." The letter states that Harper repeatedly denied defendant's requests to "proceed immediately to speedy trial," failed to provide defendant with the evidence that led to his arrest despite numerous requests, repeatedly ignored defendant and "use[d] deceptive tactics" to convince him "he has valid reason for acting in this manner," and asked the court to put the case on calendar immediately "as my due process rights are being violated."
The letter reads as follows:"My attorney has repeatedly denied my request to proceed immediately to speedy trial, which I've been requesting since my first appearance. He has deliberately deceived both myself and my family that he is acting on my behalf, when he is in fact not. I have asked numerous times for him to produce the evidence which led to my arrest, but he has not done so. Presumably this evidence is erronious, invalid or non-existant as he continues to deny me even a glimpse. He repeatidly ignores me and uses deceptive tactics in an attempt to convince me he has valid reason for acting in this manner then quickly shuffles me out the door. Upon no longer being rushed and pressured into bad decisions his arguements no longer make sense. When I attempt to contact him thru every means available to me he deliberatly ignores me."Thank you for your time. Please put case No. 16-CR-009191 on calander immediatly as my due process rights are being violated . . . ."
On December 9, 2016, defendant appeared with counsel before Judge Delucchi, entered pleas of not guilty to the charges, and denied the enhancement allegations and priors. Defendant did not waive time and the preliminary hearing was scheduled for December 20, 2016. No one referred to defendant's letter.
The preliminary hearing was held before Judge Clay on December 20, 2016, with Harper representing defendant and defendant was held to answer. Again the transcript reflects no reference to defendant's letter.
Over the next 10 months, defendant was in court with counsel on six additional hearing dates and waived presence for six others.
On October 17, 2017, defendant filed a Marsden motion, raising similar complaints to the ones mentioned in the letter (including failure to provide police reports and other case documents, lying about appointments, not answering calls and messages and, especially, thwarting defendant's stated desire for a speedy trial), as well as complaints that counsel falsely said the preliminary transcript was not available and failed to follow up on leads defendant gave him, including with respect to a potential alibi witness. After hearing from defendant and Harper at a hearing on October 20, the court denied the motion, but ordered that all discovery be provided to defendant right away and commented that counsel needed to make more visits and spend more time on explanations of the reasons for tactical decisions. On November 13, 2017, Burns substituted in as counsel.
Defendant argues his November 2016 letter effectively constituted a motion for substitution of counsel under Marsden and the trial court erred in failing to hold a hearing on his complaints. He emphasizes that no particular language is required to trigger the need for a Marsden hearing: "The semantics employed by a lay person in asserting a constitutional right should not be given undue weight in determining the protection to be accorded that right." (Marsden, supra, 2 Cal.3d at p. 124.) In People v. Mejia (2008) 159 Cal.App.4th 1081, 1086, for example, counsel informing the court that the defendant had instructed him to move for a new trial based in large part on counsel's conduct at trial was sufficient to require the court to elicit the defendant's reasons for believing he received inadequate representation. In People v. Eastman (2007) 146 Cal.App.4th 688, 691-692, a letter written by the defendant's mother stated that defense counsel and the prosecutor had threatened and intimidated witnesses and conspired to persuade the defendant to accept a plea bargain, and asked for a response "so [the defendant] will receive adequate defense and fair treatment." The court stated, "Although Eastman did not expressly ask to have his attorney replaced, the letter did request that Eastman receive an 'adequate defense' and his complaints set forth an arguable case that a fundamental breakdown had occurred in the attorney-client relationship that required replacement of counsel." (Id. at pp. 695-696.)
The People argue defendant's letter did not constitute a Marsden motion and, if it did, it was abandoned. While a" 'proper and formal legal motion'" is not necessarily required to trigger the trial court's duty under Marsden, there must be" 'at least some clear indication by the defendant that he wants a substitute attorney.'" (People v. Sanchez (2011) 53 Cal.4th 80, 87-88, quoting People v. Lucky (1988) 45 Cal.3d 259, 281, fn. 8.) The People argue defendant's pre-preliminary hearing letter was insufficient, as the relief it requested was to put the case on calendar immediately and it did not indicate defendant wanted a different attorney.
People v. Sanchez, supra, 53 Cal.4th at page 90, footnote 3, held that People v. Eastman, supra, 146 Cal.App.4th 688, and People v. Mejia, supra, 159 Cal.App.4th 1081, "incorrectly implied that a Marsden motion can be triggered with something less than a clear indication by a defendant, either personally or through current counsel, that the defendant 'wants a substitute attorney.' ([People v.] Lucky, supra, 45 Cal.3d at p. 281, fn. 8.)"
As to abandonment, when a trial court's failure to hold a hearing on a motion appears to have been inadvertent, the defendant's failure to object or bring the matter to the court's attention will result in forfeiture of the issue. (People v. Jones (2012) 210 Cal.App.4th 355, 361-362 [Marsden motion]; People v. Braxton (2004) 34 Cal.4th 798, 814 [new trial motion].) In Jones, the defendant filed a Marsden motion and the trial court set a date for hearing, but after multiple continuances of both the motion and the trial date, both prosecutor and defense counsel announced they were ready for trial. The defendant was present in court on numerous occasions in between (including when the court asked, before calling in the jury panel, whether any issues remained unresolved) and did not say anything about the Marsden motion, and therefore was found to have abandoned it. (Jones, at pp. 360-362.) By contrast, People v. Armijo (2017) 10 Cal.App.5th 1171 found prejudicial Marsden error where the court failed to hold a hearing on the defendant's clear request for replacement counsel in a letter to the court and the defendant entered a negotiated plea about two months later. (Armijo, at pp. 1176-1177.) Among other things, Armijo rejected the argument that the defendant abandoned his Marsden request by failing to assert it at a pretrial conference held five days after he sent the letter, but several days before the letter was stamped received by the court. (Armijo, at p. 1182.) In the present case, as stated above, defendant was in court with counsel on eight occasions, including arraignment and the preliminary hearing, and waived presence at six other hearings, but did not raise any question about his November 2016 letter.
We need not resolve the parties' opposing views as to whether defendant's letter should have been construed as a Marsden request and, if so, whether defendant abandoned it by failing to press the court for a hearing. Any Marsden error prior to the preliminary hearing would require reversal of defendant's conviction now only if the asserted inadequate representation by Harper prejudiced defendant at trial. We conclude, beyond a reasonable doubt, it did not.
For the most part, defendant's prejudice arguments in this context are the same as the ones we have previously addressed. Defendant argues a Marsden hearing would have revealed Harper did not provide competent representation because he failed to show defendant the evidence against him, used deceptive tactics in answering defendant's questions and ignored defendant, as stated in defendant's letter; did not conduct discovery prior to the preliminary hearing, including moving for disclosure of Brady material; did not do the research necessary to learn that Zelake's testimony should have been excluded; billed CAAP for work he did not do; failed to view the surveillance footage; and failed to follow up on defendant's suggestions regarding potential alibi witnesses. He argues the failure to hold a Marsden hearing prior to the preliminary hearing was prejudicial because Harper failed to properly cross-examine Hendryx at the preliminary hearing and Hendryx's preliminary hearing testimony was admitted at trial, and because Harper failed to move to exclude Zelake's preliminary hearing testimony as involuntary. In the preceding sections of this opinion, we have concluded, beyond a reasonable doubt, that defendant was not prejudiced by the admission of Hendryx's preliminary hearing testimony without cross- examination on the issues defendant identifies, and that there was no error in failing to move for exclusion of Zelake's testimony.
The only additional basis defendant suggests for finding any Marsden error prejudicial at trial is that if a Marsden hearing had been held, even if the motion was denied, it would have "informed and educated" Harper as to the work he needed to do before the preliminary hearing. This contention is entirely speculative and based on hindsight. The issues identified in defendant's November 2016 letter were Harper's refusal to advance defendant's stated desire for a speedy trial, failure to give defendant "the evidence which led to [his] arrest," deceit regarding the reasons for his actions, and ignoring of defendant's attempts to contact him. None of these complaints implicate the matters that defendant now relies upon in challenging his conviction. The police incident report referring to Gordon's admission and assault on Reboredo was provided to Harper as part of some 600 pages of discovery a few months after the preliminary hearing; there is no reason to believe anything said at a hearing on the complaints stated in defendant's November 2016 letter would have alerted Harper to the existence of this information. The issue with Zelake's testimony, of course, did not arise until the preliminary hearing. Defendant's letter did not complain about Harper failing to follow up on investigative leads; this issue was first mentioned in connection with defendant's October 2017 Marsden motion.
VI.
Finally, defendant contends that even if the errors he complains of were not individually prejudicial, their cumulative prejudice requires reversal. (Hill, supra, 17 Cal.4th at p. 844 ["a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error"], overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) This is not a case like Hill, in which pervasive errors, including "constant and outrageous misconduct" by the prosecutor, as well as several significant errors by the court, "created a negative synergistic effect, rendering the degree of overall unfairness to defendant more than that flowing from the sum of the individual errors" and depriving him of a fair trial. (Hill, at p. 847; see also, People v. Holt (1984) 37 Cal.3d 436, 459 [multiple separate erroneous evidentiary rulings, each undermining defendant's credibility, and improper reference to penalty by prosecutor].) The combination of deficient representation and at least one Brady violation, if not two, prior to the preliminary hearing is clearly unfortunate, and many of the issues defendant raises on this appeal might have been avoided if the trial court had treated defendant's 2016 letter as a Marsden motion and granted it. But, for the reasons we have explained, these problems did not result in an unfair trial. Although defendant disagrees, the prosecution's case was very strong, in large part because Zelake was a highly credible witness and Butts's account, notwithstanding its inconsistencies, was fundamentally consistent with Zelake's. Defendant has shown no basis for reversal.
DISPOSITION
The petition for writ of habeas corpus filed on May 19, 2021 (In re Patrick Dempsey, A162664) is denied.
We concur: Stewart, J. Miller, J.