Opinion
D073895
11-13-2019
THE PEOPLE, Plaintiff and Respondent, v. PRENTICE TONELL GRANT, SR., Defendant and Appellant.
Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. FSB1504004) APPEAL from a judgment of the Superior Court of San Bernardino County, David Mazurek, Judge. Affirmed. Melissa Hill, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Allison V. Acosta and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Prentice Tonell Grant Sr., of first degree murder (Pen. Code, § 187, subd. (a), count 1); attempted murder (§§ 187, subd. (a) & 664, count 2); and possession of a firearm by a felon (§ 29800, subd. (a)(1), count 3). The jury found true in counts 1 and 2 that defendant personally and intentionally discharged a firearm, causing great bodily injury or death (§ 12022.53, subd. (d)); personally and intentionally discharged a firearm (id., subd. (c)); and personally used a firearm (id., subd. (b)).
All further statutory references are to the Penal Code unless noted otherwise.
The court found true defendant had two strike priors (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)); two prison priors (§ 667.5, subd. (b)); and two serious felony priors (§ 667, subd. (a)(1)). The court sentenced defendant to a total term of 182 years to life in state prison.
The amended information alleged defendant had six prison priors and three serious felony priors.
On appeal, defendant contends the court erred in admitting (1) the preliminary hearing testimony of victim I.R., after the court found him unavailable for purposes of Evidence Code sections 240, subdivision (a)(5), and 1291, subdivision (a)(2); (2) evidence that I.R.'s six-year-old child was inside the parked car when defendant began shooting at I.R., who was standing right next to it; and (3) evidence that a responding officer heard people screaming that a "black male" was firing a weapon at a crowd of people. Finally, defendant contends the case should be remanded for resentencing under amended section 1385 to allow the court to exercise its newfound discretion to dismiss one or more of his serious felony priors.
As we explain, we reject these contentions and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690.)
On November 20, 2015, I.R. waited by his car at about 12:00 p.m. while his girlfriend, A.M, who was defendant's stepdaughter, went upstairs for about a minute to the apartment occupied by defendant and his wife S., the mother of A.M. The apartment was located on Oxford Drive in Redlands. I.R. waited by his car because he was not welcome in the apartment, after he and defendant had argued days earlier. In the backseat of the car was I.R.'s six-year-old son.
As discussed post, I.R. was unavailable at trial. Over objection, his testimony from the preliminary hearing was read into evidence, after some redactions by the People. Because we conclude his testimony was properly admitted, as also discussed post, we include it in this summary. We reach the same conclusion, as discussed, with respect to the evidence that I.R.'s son was in the car.
As he waited outside the driver-side door for A.M., I.R. saw a man he later identified as defendant coming down the stairs. Defendant stared at I.R. as he approached. Without saying anything, defendant next "pulled out a big gun" from underneath his jean jacket and "started shooting." I.R. estimated defendant was about 30 feet away when he started firing at I.R.
I.R. described defendant's weapon as an "automatic assault rifle," but more "compact," with a "long clip" that gave the weapon a "T" shape. I.R. ducked behind his car's tire, trying to avoid being shot. I.R. estimated defendant fired the weapon at least 25 times. As defendant approached, I.R. realized he had to move away from the car because his son was inside and defendant was "shooting up the car." Before moving, I.R. sustained a gunshot wound to his left shoulder.
I.R. ran from the car, with defendant giving chase. When I.R. was about two or three cars away from his own, defendant shot him in the back, causing I.R. to fall to the ground. I.R. stated defendant shot him in the back at least two more times.
When the shooting began, I.R. saw A.M. leave the apartment and run towards him. After being shot in the back, I.R. saw A.M. approach and jump on defendant's back. At this point defendant and A.M. were right next to where I.R. was lying. I.R. estimated A.M. and defendant wrestled over the gun for about 30 seconds. As they wrestled over the gun, A.M. repeatedly screamed at defendant to "stop" and asked him "[w]hy" he was doing this to her boyfriend. Despite A.M.'s attempts to stop defendant, he continued firing his weapon at I.R.
Defendant at close range shot I.R. in the stomach "two or three times." Defendant next pointed the gun at I.R.'s head, in an effort to "finish [him] off." I.R. testified he "slapped the gun" away from his face as he screamed for help. Defendant, however, again pointed the gun at I.R.'s head, but from a different angle. Defendant pulled the trigger, but this time the gun just "click[ed]" and did not fire. I.R. testified he was unsure whether the gun was out of bullets or had jammed. Defendant then got into a white car and drove off.
I.R. managed to get to his feet, and stumble back to his car while he waited for medical assistance. Once at the hospital, I.R. underwent emergency surgery. I.R. spent about seven days in the hospital. In addition to being struck in the back, stomach and shoulder, I.R. sustained bullet wounds to both legs and his buttocks.
Days before the shooting, defendant and I.R. had argued. As summarized in detail post, during that argument I.R. challenged defendant to a fight, but claimed he had not threatened defendant, including with a weapon.
Witness K.W. testified he was living in the same apartment complex where the shooting occurred. Around 12:30 p.m., K.W. heard two men outside "talking kind of loudly," with one of the men telling the other, "I told you I was sorry, Man," or words to that effect. As K.W. looked out the window from his second-floor apartment toward the parking lot area, "shots [began] to ring out." K.W. estimated he was about 70 to 80 feet away from the shooter.
K.W. saw a man holding a weapon, firing in the direction of a parked car. K.W. identified the shooter as defendant, his neighbor. K.W. also saw others near the location of the shooting, including in the alleyway and a "young lady off to the left." K.W. saw defendant firing the weapon at another man (i.e., I.R.), whom K.W. also recognized from an earlier confrontation with defendant. K.W. did not see the other man holding any weapon.
Prior to the day of the shooting, as K.W. was parking his car at the apartment complex he heard defendant and the other man arguing "very, very" loudly. K.W. recalled defendant "adamant[ly]" telling the other man, "Don't come back to my house no more. Don't come here no more." On the day of the shooting, K.W. testified the other man (i.e., I.R.) was the one who K.W. heard apologize to defendant shortly before defendant began firing his weapon.
K.W. called 911 and remained on the line for the duration of the incident, which "felt like forever." The audio of the 911 call was played for the jury. K.W. testified he was a law enforcement specialist, had been a "special forces member" in the Air Force, and therefore had been around firearms since the age of 17. Although K.W. occasionally ducked for cover by crouching below his window, he witnessed most of the incident.
Because defendant continued to fire his weapon, K.W. advised dispatch that he had "secured [his] own weapon" and "was prepared to engage the active shooter because he hadn't stopped," as there were other people in harm's way. Dispatch advised K.W. to "stand down" and not engage the "active shooter." K.W. estimated defendant fired his weapon between seven to ten times, although K.W. was unsure of the exact number of shots fired. Other than the apology before the shooting began, K.W. did not hear any words being exchanged between defendant and the other man.
K.W., however, did hear a female (i.e., A.M.) yelling, "Oh my gosh," "Stop it," and "Don't do this." Based on the sound of the voice, it appeared the female was in distress. Out his window, K.W. saw this female standing next to defendant, pulling on his arm. Because of her proximity to defendant, K.W. decided not to "tak[e] a shot" at defendant, as it was "too risky." While on the line with dispatch, K.W. heard another female make a "really, really bad scream." K.W. testified this scream came from a different direction, and was not made by the woman tugging at defendant's arm. Because of his military training and the neighborhood where he grew up, K.W. stated it "was a scream a person makes when they've been shot and they know they're dying." K.W. further described the scream as "horrible."
Witness L.C. testified she was in her bedroom at about 12:30 p.m. on November 20 when she heard two "loud bangs" ring out, which she initially believed came from "fireworks." She realized it was not fireworks, however, when she heard a woman "screaming" " 'stop' over and over." L.C. ran to her balcony and saw in the next complex over a "girl yelling. There was a guy on the ground and then there was another guy shooting the guy on the ground." The guy on the ground was in a "grassy area."
L.C. described the shooter as an "African American" male with "short hair," which may have been in "braids." The man was wearing shorts and a T-shirt, was holding a black gun, and was shooting the man on the ground. Standing a few feet away from the shooter was the woman who was yelling. While on the balcony, L.C. saw and heard the man fire "at least five or six" more rounds at the man lying on the ground.
L.C. did not see the man on the ground holding a weapon. She also did not see the woman screaming holding any weapon. L.C. ran inside and grabbed her phone to call 911, then went back to the balcony and saw a white car leaving the scene. It was then L.C. heard a man downstairs yelling in Spanish. L.C. saw the man had "blood all on his hands and he was just, like, frantically yelling." L.C. went downstairs and contacted the man; she saw a woman lying on her stomach in the carport. As L.C. heard sirens approaching, she went back to her apartment.
Witness R.A. testified that he and his girlfriend Severa Santos, whom he dated for three years, were passing out flyers in Redlands on November 20, including at the apartment complex where the shooting occurred. While in the parking lot area, they heard yelling and then gunshots. R.A. ran toward a car as soon as the shots began, and threw himself on the ground, near a wall. R.A. believed Santos was right behind him. R.A. estimated about eight to ten shots were fired, although he could not be sure.
As R.A. slid around the car looking for Santos, he saw her behind a trash container. Santos next started running toward R.A. As she ran, R.A. saw her "throwing up blood." Santos then fell to the ground inside a carport. R.A. attended to Santos, tried to comfort her, and noticed she also was bleeding from a bullet hole on the right side of her body. R.A. attempted to call 911, but the line was busy.
R.A. testified that initially, neighbors, law enforcement, and paramedics went to the other parking lot where the shooting had occurred, as nobody realized that Santos had been injured. R.A. went and got help from an officer. When they returned to Santos, she was still breathing. Shortly thereafter, paramedics arrived and transported Santos to the hospital, where she died from the gunshot wound.
Josh Lucas of the Redlands Police Department was on duty on November 20 and was the first officer, or one of the first, to respond to the scene of the shooting, about three minutes after the call came in. Once on scene, Officer Lucas found a female (i.e., Santos) lying on her back in a carport, with significant blood loss. The victim was unresponsive. Officer Lucas requested medical aid for the victim.
As he was assisting the victim, several people ran up to Officer Lucas and screamed that a man "was currently still firing a weapon at people in the crowd in that general vicinity." Believing there might be an active shooter, Officer Lucas made contact with other witnesses, who directed him to an occupied black car parked in the lot. Officer Lucas found an individual seated in the driver's side of the car. Not knowing whether this individual was a suspect or victim, Officer Lucas drew his weapon and approached the individual, who, in response, raised his hands and repeatedly stated, "I'm shot." This individual, later identified as I.R., was bleeding from the chest area. Officer Lucas at some point contacted A.M., who was in the breezeway between the apartment duplexes.
Wayne Reid of the Redlands Police Department also was on patrol on November 20. He arrived at the apartment complex about eight minutes after the incident, and contacted a victim later identified as I.R. sitting in a black car. Also attending to the victim was Officer Lucas. Officer Reid testified the victim was "screaming" that he needed help, that his "girlfriend's stepdad did this to [him]," and that he was in "excruciating pain." Officer Reid lifted I.R.'s shirt and saw three "holes" in his abdomen. Officer Reid cut off I.R.'s shirt and applied pressure to the wounds, in an effort to stop or slow the bleeding.
Kyle Hanna, also of the Redlands Police Department, testified he was working for the multiple enforcement team on the day of the shooting. At about 6:00 p.m. that same day, another officer stopped a car being driven by defendant. Officer Hanna responded to the location and contacted defendant. Officer Hanna participated in the lawful search of defendant and his car, but found no weapons. At some point the officers received information regarding defendant's whereabouts shortly after the shooting. Officers searched an apartment and contacted an individual who lived in that apartment, but were unable to locate any weapon.
Robert Woods, a forensic specialist with the City of Redlands, helped detectives identify and collect evidence at the crime scene, a task he stated took about seven hours. Woods testified that he located 14 .380 caliber bullet casings, and four "slugs" or projectiles, in different locations at the scene. Woods attended the autopsy of Santos and also collected as evidence a bullet slug that was removed from her upper right chest.
Woods identified multiple bullet strikes to I.R.'s car, as well as to cars parked nearby. Woods also searched I.R.'s car. Although he found evidence of bullet strikes, Woods found no weapons or evidence of other ammunition inside the vehicle. Woods also participated in the lawful search of defendant's apartment. Further investigation showed all 14 fired cartridge cases, and all five slugs, had been fired by the same "unknown firearm."
Chief Medical Examiner Frank Sheridan of the San Bernardino County coroner division testified he conducted the autopsy of Santos. Dr. Sheridan opined that Santos died of a gunshot wound of the chest; that the bullet entered just below her clavicle, with a downward trajectory; that it punctured her right lung and went through the bone of her spine; and that it then lodged into the other side of her chest. Dr. Sheridan further opined that Santos died within a "matter of minutes" after being shot, as a result of "[e]xtensive internal bleeding from the right lung."
The record shows the defense presented evidence in an attempt to show defendant acted in self-defense when he repeatedly fired his weapon at I.R., and accidently shot and killed bystander Santos, which theory the defense also argued in closing. Such record evidence, to the extent relevant to the issues raised by defendant on appeal, will be discussed post in connection with such issues.
DISCUSSION
I
Admission of I.R.'s Preliminary Hearing Testimony
As noted, defendant claims the court erred in admitting under Evidence Code sections 240, subdivision (a)(5), and 1291, subdivision (a)(2), the preliminary hearing testimony of I.R., in alleged violation of defendant's Sixth and Fourteenth Amendment rights.
Evidence Code section 240 provides in relevant part: "(a) Except as otherwise provided in subdivision (b), 'unavailable as a witness' means that the declarant is any of the following: [¶] . . . [¶] (5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the court's process."
Evidence Code section 1291 provides in relevant part: "(a) Evidence of former testimony is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and: [¶] . . . [¶] (2) The 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 [or she] has at the hearing."
A. Additional Background
A few weeks after the November 2015 shooting, I.R. testified at defendant's preliminary hearing. After a series of continuances, trial was initially set for January 23, 2017; thereafter again continued multiple times; and finally set to commence on July 3, 2017. The July 3 trial date was further continued by stipulation to July 21, after a bench warrant was issued and held for S.'s appearance.
On July 20, the People filed a motion to continue the trial date for a few additional days because, among other reasons, they were attempting to locate and secure the testimony of A.M. and I.R. The court granted the People's request, and set motions for July 31.
The People on July 31 moved in limine to admit the prior testimony of I.R., after being unable to locate this witness. In support of its motion, the People argued that I.R. had appeared and testified at defendant's preliminary hearing; that the defense then had been given a "full opportunity to cross-examine" him; that "no objections [had been] sustained during the cross-examination and there [had been] no limitations put on the topics or subject matter" during his cross-examination; and that investigators had been searching for I.R. from December 21, 2016 until January 30, 2017, and again in mid-July until the end of July 2017, but had been unable to locate him, as he and A.M. were homeless.
Senior Investigator Chad Mayfield of the district attorney's office testified that he began looking for I.R. on July 14, at the request of the deputy district attorney assigned to the case; that he "exhaust[ed]" the various databases used to find a person's most current address; that he went to I.R.'s last known address and spoke to about eight or nine people in the apartment complex where I.R. and his family had lived; that Investigator Mayfield also was attempting to locate A.M., in an effort to find I.R.; that in so doing, Investigator Mayfield contacted defendant's wife, S., on or about July 19; that S. informed Investigator Mayfield that A.M. and I.R. were living "on the streets" and did not have a permanent residence; and that A.M. would occasionally drop in and see S. to let her know she was "okay."
On one occasion while looking for I.R. and/or A.M. at S.'s apartment, Investigator Mayfield met A.M.'s brother, who lived with S. Although "respectful," A.M.'s brother was uncooperative, as he refused to give Investigator Mayfield his name or provide any information about his sister, including her potential whereabouts, and instead merely retorted, "She's not here" as he went up the stairs and entered the apartment.
Investigator Mayfield testified he also contacted the Redlands Police Department for assistance in locating I.R. He met with Corporal Goff and learned there had been a "domestic violence" incident of some sort in early July 2017 involving I.R. and A.M.; that this incident was a local contact and did not appear in any official database; and that as a result of this incident, which took place in the common area of the apartment complex where S. lived, Investigator Mayfield returned to that same location on multiple occasions, as it appeared I.R. "show[ed] up [there] every now and again with [A.M.]."
Investigator Mayfield also attempted to locate I.R. and/or his family members at three different addresses in the City of Rialto. Finally, on July 25 Investigator Mayfield made telephone contact with I.R.'s sister, R., who lived in Rialto. R. stated that her brother did not have a telephone; that he "had been on the streets for a while"; that she did not have any way of "get[ting] ahold of him"; but that she would reach out to his "circle of friends" in an effort to locate him.
Investigator Mayfield also asked the Colton Police Department to check its "in-house contacts" to determine whether there had been any involving I.R. Detective Collins from that department disclosed that in late 2016, I.R. had been contacted near a large department store "panhandling," which Investigator Mayfield noted was consistent with the information he was receiving in July 2017. Based on this information, Investigator Mayfield drove to the area where the department store was located, and stopped in various nearby homeless "camps," but was unable to locate I.R.
Investigator Mayfield testified that both the Redlands and Colton Police Departments issued a "BOLO" or " 'be on the lookout' " for I.R. He further estimated he had investigated about eight different phone numbers for I.R.; had personally gone to over 10 different locations in an attempt to locate this witness; and had spent about 15 to 20 hours "actually out searching" for I.R., which did not include the many additional hours he had spent looking in various databases in an effort to locate this witness. Other than check the various databases, which he did frequently—including on the morning of the due diligence hearing, Investigator Mayfield testified he was "at a dead end with leads," noting a key problem in finding I.R. was his homelessness.
Investigator Steve Laing also testified at the due diligence hearing. Investigator Laing stated he began looking for I.R. in mid-December 2016, when he was asked by a deputy district attorney to find several witnesses in this case. Investigator Laing conducted a background search of I.R., looking up photographs, address history, telephone numbers, and any booking information. Investigator Laing then went to the last known address of I.R.'s family, and found another family had moved into the apartment "several months" earlier. He also spoke to S., who advised the family had moved. S. also was unable to provide any forwarding information regarding the family or I.R.
Investigator Laing testified he went to another address in Redlands belonging to I.R.'s relatives. After several attempts, Investigator Laing spoke to a person who lived at that address, who neither recognized a photograph of I.R. nor his name. Investigator Laing's efforts to locate I.R. at various other addresses, including in Rialto, were also unsuccessful. In certain instances the investigator made more than one visit to these addresses, attempting to obtain as much information as possible about I.R. and/or his family. Investigator Laing also followed up on various phone numbers at one point linked to I.R. In most cases, these numbers were either disconnected or a wrong number.
Investigator Laing also checked a jail system database "every two or three days," "hoping that he [i.e., I.R.] would be in custody and make [the investigator's] life easy." Investigator Laing continued to look for I.R. until January 30, 2017, when the case was reassigned to another investigator. During this roughly 40-day period, Investigator Laing estimated he spoke to about seven or eight different people. During each such contact he left a business card, but never received any follow-up calls or information about I.R. Investigator Laing estimated that he also went to the apartment complex where the shooting occurred about 14 times, the "majority" of those visits in an effort to locate I.R.; and that he spent "[s]everal working days," each day being about 10 hours if he was "lucky," trying to locate this specific witness.
Investigator Laing testified he searched multiple databases on the morning of the due diligence hearing, but was unable to find any new information on I.R. That same day, the investigator went back to the apartment complex where S. lived. She too was unable to provide any updated information regarding the whereabouts of her daughter or I.R.
1. The Court Finds the Prosecution Exercised Due Diligence
After hearing the testimony and the argument of counsel, the court found the prosecution had established by a preponderance of the evidence that it exercised due diligence in attempting to locate I.R. To support its decision, the court noted there "were about 40 days of efforts from December to December of last year to January of this year, that included about—approximately—safe estimate was twenty hours, including not only just running or looking for information in databases but actively pursuing addresses, speaking to witnesses, returning to speak to potential witnesses, and then ultimately again beginning in July, also the same efforts approximately fifteen to twenty hours including searching databases, going to multiple locations, requesting the assistance of other officers and other agencies, putting out BOLOs, or 'be on the look outs,' and the constant reviewing of databases and returning to locations as Investigator Laing testified to even this morning returning to the location.
"When witnesses are homeless, it makes it very difficult to find those people and gain their compliance. There have been several witnesses that have been served with subpoenas that have failed to show up in this case.
"The Court will take judicial notice of the number of continuances in the minutes and also the state of the—in this jurisdiction how cases get to court because we are so busy, it is not unusual for cases not to be assigned to a department for trial until closer to the date time runs. That's a function of the number of cases that we have and how busy we are. So the court does think that reasonable diligence has been exercised.
"[¶] . . . [¶]
"So given the totality of the circumstances in this case, the multiple attempts made to locate the witness over two different time periods and the nature and substance of the efforts made, which was more than just passively looking up numbers or addresses in the database, but did also include pounding the pavement, so to speak, and getting the cooperation of other enforcement agencies, the Court does find that due diligence has been exercised."
2. Defendant's Motion to Dismiss/Exclude I.R.'s Preliminary Hearing Testimony
a. Additional Background
A few days after the court found I.R. unavailable within the meaning of the Evidence Code, the defense moved to dismiss the case on due process grounds. The defense alleged it was deprived of a meaningful opportunity to confront and cross-examine I.R. at the preliminary hearing because the prosecution allegedly had failed to turn over exculpatory information as required by Brady v. Maryland (1963) 373 US. 83 (Brady) (sometimes Brady motion). Alternatively, defendant asked the court to exclude I.R.'s preliminary hearing testimony at trial.
In support of the Brady motion, defense counsel noted that shortly after the case was reassigned to her in August 2016, she requested all information concerning any priors of I.R. Defense counsel made a second request for this information in early November 2016. That same day, the prosecution provided this information to the defense.
The information showed I.R. had the following criminal history: (1) "2004: PC 664/459 2nd, San Bernardino County; Juvenile Petition filed"; (2) "2006: PC 422, Arrest only, San Bernardino County, no disposition"; (3) "2007: PC 211, Arrest only, San Bernardino County, no disposition"; (4) "2010: PC 490.1, Infraction (MVA1002238), conviction"; (5) "2011 PC 459 2nd, Misdemeanor (MVA1003810), conviction"; and (6) "2011: PC 350(a)(1), Misdemeanor (MVA1003821), conviction."
In the e-mail accompanying such information, the prosecution noted that it was not consenting to admissibility; that such information was being "provided as part of the People's obligation under Brady"; that its "system reveal[ed] no current cases on [I.R.] under varying permutations of spelling of his name"; and that it had "no information regarding any gang affiliation of [I.R.]."
Included in defendant's Brady motion was a five-page police report regarding I.R.'s July 2006 section 422 arrest for allegedly making a criminal threat. This report noted that on July 5, 2006, I.R. and several other males went to the victim's home, despite the fact the victim had a restraining order against I.R.; that the victim came to the door, heard I.R. demand he "come out and catch this fade," and in response went to the kitchen and "grabbed a knife" before confronting I.R. and the others outside; and that once outside, I.R. stated, "Yeah. Come on out and catch this fade. I'm going to kill you, nigga. Catch this fade."
The report further noted that the victim "was in fear for his life"; that as the victim stepped toward I.R., a second suspect "pulled out a chrome handgun, pointed the handgun directly at [the victim], and said, 'I don't think that you wanna do that,' at which time the victim stated he froze in his tracks"; and that the second suspect put the gun back into his waistband as the victim started backing away.
After being placed under arrest and waiving his Miranda rights, I.R. told police that he also had a restraining order against the victim and the victim's brother, stemming from a physical altercation between them about two years earlier; that I.R. lived just down the street from the victim; that the victim's younger brother had recently approached I.R. at a swap meet, which had led to a "physical altercation"; and that, because he was upset and agitated as a result, I.R. had gone to the victim's home. Others involved in the incident also were interviewed. They denied any weapon was drawn against the victim or hearing the victim being threatened in any way.
In further support of his Brady motion, defendant argued that self-defense was an issue in the instant case; that certain priors of I.R. were thus "extremely probative and very exculpatory as it goes to [I.R.'s] predisposition to use force and to make threats—[two] issues at the heart of the Defense"; that the section 422 report in particular substantiated a claim of self-defense in the instant case; and that, because the defense did not have this information at the preliminary hearing, it was deprived of an ability to conduct a "full and meaningful cross-examination and confrontation" of this witness.
b. The Court Denies Defendant's Brady Motion
The record shows the court summarized the contents of the Brady motion, including attached exhibits and the People's response thereto, cited myriad cases on the issue, and stated it had read the preliminary hearing testimony. The court found I.R.'s convictions for commercial burglary, passing fraudulent materials, petty theft, and his juvenile petition also for commercial burglary, each involved a crime of moral turpitude, and thus "might bear on the credibility of the witness."
The court, however, found there was no due process violation, ruling as follows: "[B]ased on what it has reviewed, [the court] doesn't think that the holding order would have been any different with respect to the evidence deduced at the preliminary hearing, even if [I.R.], the victim—one of the victims in this case would have been confronted with that information.
"The evidence seemed pretty clear at the preliminary hearing. The magistrate seemed to think that the evidence was pretty clear. The defense of self-defense was pursued at the preliminary hearing. However, there was no evidence that the victim was armed nor was there any evidence that any shots were fired by anyone other than the defendant. There were numerous, at least 14, shell casings that were fired, and it appears that the defendant was the only person with the weapon drawn, at least according to the preliminary hearing transcript.
"I know there were some words that potentially were exchanged, but the evidence seems to be that Mr. Grant went into a closet, went outside, left the position of relative safety, went outside, had words with [I.R.] and then shots were immediately fired, striking [I.R.] who was fleeing, and also striking a bystander.
"So even if there had been evidence adduced that [I.R.] had committed prior acts of violence, had threatened people in the past, one of the incidents involved him going to a person's house and asking them to come outside to 'catch a fade' and that he was gonna kill him. And the other one was a robbery where he punched somebody that he allegedly had hired to do some painting for him and took his wallet.
"Even if those acts had come in, it's the Court's opinion that the holding order wouldn't have been any different based upon the state of the evidence adduced at the preliminary hearing. So I don't think it's material, in that, it would make a difference to the holding order at that time."
The court next addressed whether the defense was denied an opportunity to cross-examine I.R. with "similar motives" as a result of not having this evidence at the preliminary hearing. The court noted it already had found the People had exercised reasonable diligence in an attempt to secure I.R. as a witness; that I.R. was therefore unavailable under the Evidence Code; and that the issue was whether it should exclude I.R.'s preliminary hearing testimony based on the lack of discovery of his priors.
After hearing argument from counsel and citing various cases dealing with the admission of preliminary hearing testimony when a witness is unavailable and additional information regarding that witness is disclosed after such testimony, the court found that the information regarding I.R.'s prior incidents did not deprive defendant of a meaningful opportunity to cross-examine I.R. at the preliminary hearing; that in accordance with case law, I.R.'s prior convictions would be known to the jury to allow it to consider the credibility of this witness; and that the defense could also seek to admit evidence of I.R.'s prior bad acts under former Evidence Code 1103.
Evidence Code section 1103 was amended effective January 1, 2019. (See Stats. 2018, ch. 423 (Sen. Bill No. 1494), § 21, eff. Jan. 1, 2019.) This amendment has no substantive bearing on the instant case.
B. Guiding Principles and Analysis
1. Unavailability
A criminal defendant has a constitutional right to confront prosecution witnesses, but the right is not absolute. (People v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer).) "An exception exists when a witness is unavailable and, at a previous court proceeding against the same defendant, has given testimony that was subject to cross-examination." (Ibid.) A witness who is absent from a trial is not constitutionally "unavailable" unless the prosecution has made a reasonable, " 'good faith effort' " to obtain the witness's presence at the trial. (People v. Herrera (2010) 49 Cal.4th 613, 622 (Herrera); Evid. Code, § 240, subd. (a)(5).)
Reasonable or " 'due diligence' is 'incapable of a mechanical definition,' but it 'connotes persevering application, untiring efforts in good earnest, [and] efforts of a substantial character.' " (Cromer, supra, 24 Cal.4th at p. 904.) Factors to be considered include the timeliness of the search, the importance of the witness's testimony, and whether leads to the witness's possible location were reasonably explored. (Ibid.) " 'Where the record reveals . . . that sustained and substantial good faith efforts were undertaken, the defendant's ability to suggest additional steps (usually, as here, with the benefit of hindsight) does not automatically render the prosecution's efforts "unreasonable." ' " (People v. Diaz (2002) 95 Cal.App.4th 695, 706 (Diaz).)
We review the trial court's resolution of disputed factual issues under the substantial evidence standard, and independently review "a trial court's determination that the prosecution's failed efforts to locate an absent witness are sufficient to justify an exception to the defendant's constitutionally guaranteed right of confrontation at trial." (Cromer, supra, 24 Cal.4th at p. 901.)
Turning to the instant case, the record shows the prosecution undertook myriad " 'good-faith efforts' " to locate and produce I.R. as a witness. (See Herrera, supra, 49 Cal.4th at p. 622, quoting Ohio v. Roberts (1980) 448 U.S. 56, 74, disapproved on another ground as stated in Crawford v. Washington (2004) 541 U.S. 36, 60-68.) The record further shows locating this witness was even more difficult because he was "living on the streets."
As summarized ante, Investigator Laing started looking for I.R. in mid-December 2016, more than 30 days before trial was then slated to begin on January 23, 2017. Investigator Laing conducted computer searches of this witness, including address and telephone history, booking information, recent photographs, and the like. Investigator Laing then went to the last known address where I.R. and his family had lived, showed the occupants of that home pictures of I.R., but was unable to obtain any additional information regarding this witness.
The record further shows that Investigator Laing also contacted S., A.M.'s mother, who claimed to have no information about either individual, including their whereabouts; that during the course of the investigation, he went about 14 times to the apartment complex where the shooting took place, many of those in an effort to locate this witness; that he also went to other addresses in Redlands and Rialto attempting to locate I.R.'s relatives; and that these efforts also proved unfruitful.
Investigator Laing testified he continued to look for I.R. until January 30, 2017, or about a week after trial was then set to begin, when the case was reassigned to another investigator. During this roughly 40-day period, Investigator Laing estimated he spent several days, each day more than 10 hours per day, looking for I.R. This also included following up on various phone numbers at one time linked to I.R.; checking the Riverside County jail and its records; and contacting about seven or eight people, in which he left a business card asking them to call if they had any additional information about this witness.
The record shows the trial date in this case was repeatedly continued. As the trial date approached (before it was continued yet again) in July 2017, Investigator Mayfield was tasked with attempting to locate I.R. Investigator Mayfield testified he exhausted various databases used by law enforcement to locate a person and his or her address; that he also went to I.R.'s last known address and spoke to about eight or nine people in that apartment complex, none of whom could assist in providing any additional information on I.R.; that Investigator Mayfield also was attempting to locate A.M., as she was I.R.'s girlfriend; that Investigator Mayfield spoke with S. on or about July 19, who stated A.M. and I.R. were living on the streets and did not have a permanent address; that on another occasion while at the apartment complex, Investigator Mayfield contacted A.M.'s brother, who lived with S.; and that he refused to provide this investigator any information regarding the location of his sister or I.R.
Investigator Mayfield also contacted the Redlands and Colton Police Departments, both of which issued a BOLO or "be on the lookout" for I.R. He estimated he also tracked down eight different phone numbers at one time linked to I.R., and had personally gone to over 10 different locations to locate this witness. He estimated he spent about 15 to 20 hours "out searching" for I.R., which did not include the many additional hours he spent looking through databases or his other efforts to locate I.R.
Investigator Mayfield on July 25 was able to make contact with I.R.'s sister, R., who lived in Rialto. She, like S., confirmed that her brother was living on the streets; that he did not have a phone; and that she had no way of establishing contact with him.
Investigator Mayfield's efforts did not end there. He also went to the Colton Police Department to determine whether there had been any "in-house" contacts involving this witness that would not appear on a database search. A detective from this department informed Investigator Mayfield that I.R. had been "panhandling" near a large department store known to the investigator. Based on this information, Investigator Mayfield drove the area and looked for this witness, including in various homeless "camps" located nearby. After expending significant time and resources looking for I.R., Investigator Mayfield concluded he was at a "dead end with leads," as I.R.'s homelessness made locating him very difficult.
Finally, the record shows Investigator Laing conducted yet another search for I.R. on the day of the due diligence hearing (i.e., July 31, 2017), reviewing various databases and once again contacting S. at the apartment complex. As before, Investigator Laing was unable to locate I.R., or obtain any new leads regarding his potential whereabouts.
Based on the foregoing, we independently conclude that " 'leads were competently' " explored by the two investigators (see People v. Valencia (2008) 43 Cal.4th 268, 292 (Valencia)), and " ' " 'the search [for I.R.] was timely begun' " ' " (see ibid) in what amounted to a sustained, good-faith—albeit unsuccessful—effort by the prosecution to locate I.R. and obtain his presence at trial. We thus further conclude the court was justified in finding I.R. "unavailable" within the meaning of Evidence Code sections 240, subdivision (a)(5) and 1291, subdivision (a)(2). (See Cromer, supra, 24 Cal.4th at p. 904; see also People v. Andrade (2015) 238 Cal.App.4th 1274, 1294 [concluding the prosecution exercised reasonable diligence in attempting to locate a juvenile witness who disappeared after testifying at the preliminary hearing, including "making numerous calls to Jane Doe IV and her family; checking multiple statewide databases for Jane Doe IV and her family; [and] attempting to contact Jane Doe IV on social media Web sites"]; Diaz, supra, 95 Cal.App.4th at p. 706 [concluding the prosecution exercised due diligence in attempting to produce a witness who was unwilling to testify including by attempting to serve the witness with a subpoena, speaking to the witness's mother, going to the witness's schools, checking with local hospitals and the Department of Motor Vehicles, and checking databases to see if the witness had been arrested].)
2. Cross-Examination
Defendant also contends I.R.'s preliminary hearing testimony was inadmissible because the defense did not have access to this witness's prior arrest records, including for crimes that constituted moral turpitude.
Prior testimony is not made inadmissible by the hearsay rule if the declarant is unavailable to testify at trial and, at the time the unavailable witness gave testimony, the cross-examination was made " 'with an interest and motive similar' " to that of the prior proceeding. (People v. Harris (2005) 37 Cal.4th 310, 332, quoting Evid. Code, § 1291, subd. (a)(2).)
Preliminary hearings provide that opportunity. (People v. Carter (2005) 36 Cal.4th 1114, 1172-1173; People v. Gonzales (2012) 54 Cal.4th 1234, 1262 (Gonzales) [noting preliminary hearing testimony is deemed sufficiently reliable to satisfy the confrontation clause, regardless of whether subsequent circumstances bring into question the accuracy or completeness of the earlier testimony, where the defendant had an opportunity to cross-examine the witness]; see also Kentucky v. Stincer (1987) 482 U.S. 730, 739 [recognizing the "Confrontation Clause guarantees only 'an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish' "].)
Courts have held defendants were not deprived of the opportunity for meaningful cross-examination in a variety of circumstances, including when: (1) the new information was unimportant or did not go to the core of the testimony; (2) the defendant had reason to cross-examine the witness about the subject matter; (3) the defendant had other information he could use to impeach the witness; or (4) the defendant presented the new impeachment information at trial even though he could not directly cross-examine the unavailable witness about it. (See Gonzales, supra, 54 Cal.4th at pp. 1262-1263 [rejecting claim the defendant was deprived of a meaningful opportunity to cross-examine a witness—his eight-year-old son—because the defense did not have access to the child's therapy records until after the preliminary hearing, noting that the court agreed the defendant could admit those records at trial, that defense counsel, in any event, "thoroughly questioned the child about the differences between his preliminary hearing testimony and the earlier answers he gave to police," and that counsel had been free to explore the effects of the child's traumatic experience at the preliminary hearing]; Valencia, supra, 43 Cal.4th at pp. 294-295 [finding new impeachment information did not go to the core of the witness's testimony and the defense, in any event, presented the impeachment evidence at trial].)
Here, the record shows that defense counsel extensively cross-examined I.R. at the preliminary hearing. I.R. was questioned about his relationships with A.M., defendant, and S; whether he previously had "put hands on [A.M.]," angering defendant and S.; and whether he and defendant had argued a few days before the shooting, among other subject matters.
With regard to their argument, on questioning I.R. stated he had felt "disrespected" by defendant, believed defendant was an "A'hole" and "more," and as a result, a few days before the shooting had challenged defendant to a "fight." I.R., however, denied being told by S. and defendant to stay away from their apartment prior to the argument. He also denied telling defendant he owned a gun, denied ever owning a gun, and denied "threaten[ing]" defendant during the argument, stating he had "just challenged [defendant] to a fight." Thus, the record shows defense counsel asked I.R. a series of questions that were relevant to defendant's theory he acted in self-defense on the day of the shooting.
Defense counsel also asked I.R. a series of questions regarding the shooting, including the path defendant took as he approached I.R.; what, if anything, was said between the two men; where I.R. was located when the shooting began; where I.R. ran and fell to the ground after being shot; the location of defendant's get-away vehicle on the day of the shooting; and how I.R. was able to get back to his car and wait for medical personnel after being shot multiple times.
In addition, the record shows immediately after I.R.'s testimony was read to the jury, the court took judicial notice of "certain files" belonging to I.R., and advised the jury of I.R.'s prior convictions for the following offenses: "From 2010 he has a conviction for shoplifting. In 2011 he has a conviction for 459 second. That's commercial burglary. And in 2011 he has a conviction for a violation of Penal Code section 350(a)(1), manufacture or [sale] of a counterfeit mark." The court then instructed the jury that it could consider these convictions in "assessing the credibility" of I.R. Thus, while defendant did not have an opportunity at the preliminary hearing to ask I.R. about his prior convictions, the record shows the court admitted those priors and instructed the jury it could consider them in assessing this witness's credibility.
Based on the foregoing, on this record we independently conclude that defendant had a meaningful opportunity to cross-examine I.R. at the preliminary hearing, including on subject matters related to his theory of self-defense, as the defense sought to discredit this witness, and blamed him for instigating the shooting as a result of his allegedly "putting hands" on A.M., and threatening defendant just days before the incident. (See People v. Thomas (2011) 51 Cal.4th 449, 499, 503 [upholding the admission of prior testimony from an unavailable witness at a preliminary hearing held about 15 years before the pertinent criminal proceedings, despite the fact that testimony related to an entirely different criminal matter].)
3. Forfeiture/Harmless Error
Moreover, even if we found that the prosecution failed to exercise sufficient diligence in attempting to locate I.R. for trial, or that the defense had been deprived of a meaningful opportunity to cross-examine I.R. at the preliminary hearing, we nonetheless conclude that the alleged erroneous admission of I.R.'s preliminary hearing testimony does not compel reversal of this case.
Confrontation clause violations are subject to the test for prejudice found in Chapman v. California (1967) 386 U.S. 18 (Chapman). "We ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error." (People v. Loy (2011) 52 Cal.4th 46, 69-70.)
Turning to the instant case, the record shows I.R. testified at the preliminary hearing that defendant shot him after they had argued a few days earlier, when I.R. challenged defendant to a fight because he felt "disrespected," as discussed ante. Moreover, in closing counsel argued that I.R. was "unavailable" because he was "hiding"; that I.R. allegedly was "concerned that it was one of his bullets that hit Severa Santos"; and thus, that I.R. did not want to come into court because he was "afraid of the charges that [he could] face."
The record therefore shows I.R.'s unavailability, and a portion of his preliminary hearing testimony, not only did not prejudice defendant, but was used by the defense to support defendant's innocence, including defendant's theory that he shot I.R. in self-defense. For this reason alone, we conclude defendant on appeal forfeited this claim of error. (See People v. Romo (2016) 248 Cal.App.4th 682, 698 [rejecting claim court erred when it admitted expert testimony offered by the prosecution on the issue of whether the defendant knew he was in possession of drugs because the defendant's own expert offered similar testimony showing the defendant was aware of the presence of such drugs, noting "what is 'sauce for the goose is sauce for the gander' "].)
In any event, we further conclude this testimony was harmless error as it was cumulative to the trial testimony of other impartial witnesses.
As summarized ante, K.W. testified that shortly before the shooting began, he heard two men "talking kind of loudly," with one of the men, later identified as I.R., saying something to the effect that he was "sorry" to the other man, who K.W. recognized as defendant, his neighbor; that in the days leading up to the shooting, K.W. heard defendant and the other man loudly arguing, with defendant adamantly telling the other man not to "come here [i.e., the apartment] no more"; that K.W. had a birds-eye view of the shooting from his second-floor apartment, as he estimated he was only about 70 or 80 feet away from where defendant opened fire; that K.W. called 911, stayed on the line with dispatch as the shooting continued, and actually armed himself as defendant continued to discharge his weapon; that as defendant continued to fire his weapon, K.W. saw a female (i.e., A.M.) attempting to grab defendant's arm and repeatedly heard her yelling "stop"; and that at some point, K.W. heard another female make a "really bad scream."
As further summarized ante, L.C. testified she heard two loud bangs, then went to her balcony and saw a man matching the description of defendant firing at least five more shots at a man lying on the ground. L.C. also saw a women standing near defendant, and heard her repeatedly yelling to stop shooting the man on the ground. L.C. stated neither the man on the ground nor the woman standing near defendant had a weapon.
What's more, the record further shows that defendant was in his apartment with his wife S. when A.M. arrived; that defendant armed himself, left the safety of his apartment, went downstairs, and confronted I.R., who was waiting for A.M. by his parked car; that defendant then discharged his weapon at least 14 times, based on the number of .380 caliber bullet casings found in the area of the apartment complex; that defendant did so despite the fact I.R.s six-year-old son was in the car (as discussed post); that there were multiple bullet strikes to I.R.'s car, and other cars parked nearby; that no other weapons or ammunition were found at the scene, including in I.R.'s car or on his person; that I.R. sustained multiple gunshot wounds; and that the bullet retrieved from Santos's body, as well as other slugs found at the scene, all were fired from the same "unknown firearm."
Based on the foregoing, even if the court erred in admitting I.R.'s preliminary hearing testimony, we conclude any such error was harmless beyond a reasonable doubt. (See Chapman, supra, 386 U.S. at p. 24.)
4. Former Evidence Code Section 1103
a. Additional Background
Shortly after trial commenced and outside the presence of the jury, the court addressed the defense's request to admit under former Evidence Code 1103, subdivision (a)(1), the section 422 threat allegedly made by I.R. in July 2006 against his neighbor; and the 2007 incident in which I.R. hired an individual to do some work, and allegedly struck that individual and took his wallet.
Former Evidence Code section 1103 provided in relevant part: "(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is: [¶] (1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character. [¶] (2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1). [¶] (b) In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a)." (Italics added.)
The prosecution opposed the defense's request to admit either incident because no charges were filed against I.R.; the incidents occurred about eight or nine years before the shooting; and with respect to the 2006 incident, there was a "civil case that was going on at the time where there was a civil restraining order in place keeping the alleged victim in the report of the [section] 422 . . . away from I.R." The prosecution argued both incidents should be excluded under Evidence Code section 352.
The court noted that I.R. was only 19 years old when he allegedly threatened his neighbor in July 2006, but was about 28 years old at the time of the shooting. As such, the court found the "age gap" and the maturity "differences" as a result "may not make that [July 2006] incident reflective of a person's character at a later time." The court also suggested that, because no charges were filed in connection with this incident, it had the potential to consume an undue amount of time and confuse the jury.
Nonetheless, the court ruled the July 2006 incident was sufficiently similar to the incident between I.R. and defendant just days before the November 2015 shooting, when I.R. challenged defendant to a fight. As such, the court found the 2006 incident "reflect[ed] on the victim's character which is relevant to an issue in this case, material to an issue in this case. It's character for violence, not just violence, but being the aggressor and perpetrating violence." The court reached a similar conclusion with respect to the 2007 incident.
The court, however, noted that "what goes hand in hand with [its rulings with regard to I.R. was] there's an incident of Mr. Grant perpetrating violence on Ms. Grant [in 2004]. That, I think in accordance with [former Evidence Code section] 1103, if the defense chooses to pursue those two prior incidences, the prosecution wants to pursue that." After additional argument, the court confirmed that the People could move to admit defendant's 2004 alleged incident of violence against his wife S. only if the defense first put on the evidence of I.R.'s prior acts of alleged violence from 2006 and 2007. The record shows defendant chose not to admit the uncharged 2006 and 2007 incidents of I.R., thus precluding the prosecution from seeking to admit his 2004 domestic violence against S.
Defendant in the instant case contends the court abused its discretion when it ruled his 2004 domestic violence incident would be admissible if he chose to admit the 2006 and 2007 incidents of violence by I.R. Specifically, defendant contends that, because crimes of domestic violence involve a particular type of victim, such as a spouse, cohabitant, or a former spouse or cohabitant, and because I.R. was not such a victim and defendant, in any event, was not then facing a charge of domestic violence, the court should have upheld defense counsel's objection to the admission of this other crimes evidence under Evidence Code section 352.
b. Guiding Principles and Analysis
"Evidence that a defendant committed crimes other than those for which he [or she] is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive, intent, preparation or identity. [Citations.] The trial court judge has the discretion to admit such evidence after weighing the probative value against the prejudicial effect. [Citation.] When reviewing the admission of evidence of other offenses, a court must consider: (1) the materiality of the fact to be proved or disproved, (2) the probative value of the other crime evidence to prove or disprove the fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is relevant. [Citation.] Because this type of evidence can be so damaging, '[i]f the connection between the uncharged offense and the ultimate fact in dispute is not clear, the evidence should be excluded.' [Citation.]" (People v. Daniels (1991) 52 Cal.3d 815, 856.) We "review a trial court's decision to admit or exclude evidence 'for abuse of discretion, and [the ruling] will not be disturbed unless there is a showing that the trial court acted in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice.' [Citation.]" (People v. Powell (2018) 5 Cal.5th 921, 951.)
Turning to the instant case, we need not decide whether the court erred in overruling defendant's objection to the potential admission of his 2004 domestic violence against S. because we conclude there was no reasonable probability the jury would have reached a different verdict had it been informed of the uncharged 2006 and 2007 incidents of violence by I.R. (See People v. Gonzalez (2018) 5 Cal.5th 186, 200, fn. 4 [noting under the standard of People v. Watson (1956) 46 Cal.2d 818 (Watson), an "error is harmless unless there is a reasonable probability of a different result absent the error"]; People v. Brooks (2017) 3 Cal.5th 1, 52 [concluding any error in excluding evidence of the victim's prior felony conviction was harmless under Watson "because there is no reasonable probability that a more favorable result would have occurred had the prior conviction evidence been admitted"].)
As noted ante, there was substantial evidence other than I.R.'s testimony to support defendant's guilt, including from K.W., who—from his second-floor apartment—saw defendant shoot I.R. multiple times, and who heard Santos cry out after being struck by a bullet, all of which is summarized in detail ante; and from L.C., who also witnessed the shooting from her balcony.
Moreover, Officer Reid testified that, as he provided aid to I.R. to stop or slow his bleeding from the multiple gunshot wounds, I.R. screamed that his "girlfriend's stepdad did this to him." As also summarized ante, the record shows that no weapons were found on I.R.'s person or in his car; that other than the 14 .380 cartridges and the five slugs (including the one removed from the chest cavity of Santos during the autopsy), no other ammunition was found at the crime scene, where law enforcement worked for at least seven hours; that I.R. and defendant had argued loudly just days before the shooting; and that I.R. had prior convictions for crimes involving moral turpitude that were admitted into evidence.
But that's not all. The record also shows that S. testified for the defense that I.R. had allegedly made it known to her and defendant prior to the day of the shooting that he owned a gun, as he would "aggressively pat[] his pockets saying he's got that thing" when in the company of S. and defendant; and that I.R. made such comments "every time" he came to the apartment. Regarding the argument just days before the shooting, S. testified I.R. came to the apartment, despite being told not to do so, and allegedly threatened to kill defendant when defendant asked him to leave.
S. testified on the day of the shooting she heard "voices" outside then several gunshots, some of which she described as "small ones like pops" and others that were louder as if they came from a "bigger gun maybe." After going outside, S. heard I.R. "hollering" and saw her daughter and defendant arguing, then saw defendant leave. After defendant left, S. testified she heard I.R. "yelling Call 911. Get the gun, [A.M.] Get the gun." S. next saw A.M. go over toward I.R., bend down, and then leave, only to return a few minutes later to console I.R. When asked if she saw I.R. with a gun on the day of the shooting, S. testified she saw I.R. "bend down behind the car," and saw "fire coming from behind the car," but did not actually see I.R. fire a weapon. S. described the "smaller pop" noises as coming from I.R.'s weapon.
A neighbor of defendant's called by the defense testified she also heard two different sounds in what she described as a "shootout" in the parking lot, including a "small sound," which she surmised came from a "smaller caliber gun," and a louder sound from a "larger gun."
Thus, this was not a case where the only evidence before the jury was two conflicting versions of the same violent incident, one by the victim and one by defendant, where evidence of the victim's alleged reputation for or history of violence may have made a difference, particularly given that neither the victim nor defendant had led a crime-free life; that the two incidents involving I.R. took place about seven or eight years before the shooting; and that defendant put on evidence showing, and argued in closing, he shot I.R. in self-defense, which theory the jury rejected.
Because evidence of defendant's guilt was strong and did not depend on the cumulative testimony of I.R., and because defendant in any event presented a defense that was rejected by the jury, we conclude there was no reasonable probability that evidence of the 2006 and 2007 instances of alleged violent conduct by I.R. would have made any difference in the outcome of the trial. (See People v. Holloway (2004) 33 Cal.4th 96, 128-129 [applying the Watson standard in finding the admission of the defendant's statement that he potentially could hurt others when intoxicated was harmless given other compelling evidence pointing to the defendant's guilt, including a false alibi and his later admission to being present at the scene]; see also People v. McNeal (2009) 46 Cal.4th 1183, 1203 [concluding that "[b]ecause the trial court merely rejected some evidence concerning a defense, and did not preclude defendant from presenting a defense, any error is one of state law and is properly reviewed under . . . Watson"].)
II
Other Evidentiary Rulings
A. The Presence of I.R.'s Six-Year-Old Son at the Scene of the Shooting
Defendant next contends the court abused its discretion and thus prejudicially erred when it overruled defendant's objection to I.R.'s (preliminary hearing) testimony that his six-year-old son was in the car when the shooting began. We find this contention unavailing.
The record shows after discussing several evidentiary issues outside the presence of the jury, defense counsel in passing asked the court to exclude any reference to the six-year-old being in the car, stating such evidence lacked any probative value and was, in any event, unduly prejudicial. The court overruled the objection, finding the presence of the child at the crime scene was relevant. We agree.
Indeed as summarized ante, I.R. testified that after being shot in the shoulder while ducking behind the tire of his car, he decided he had to leave that area because his son was in the car and defendant was firing multiple shots in their direction, as later confirmed by the number of bullet strikes to the vehicle. As a result, I.R. started running away, only to be shot several more times by defendant, causing I.R. to fall in a grassy area, where defendant continued to fire at I.R. from close range.
Thus, the record shows the brief statement by I.R. regarding why he left the relative security of his car and ran into open space clearly was relevant in this case, and was not unduly prejudicial given the statement was fleeting, the child did not testify, and the child was uninjured in the shooting. We thus conclude the court did not abuse its discretion in overruling defendant's objection to this evidence. (See People v. Cole (2004) 33 Cal.4th 1158, 1195 (Cole) [stating "[w]e review for abuse of discretion a trial court's rulings on relevance and admission or exclusion of evidence under Evidence Code sections 1101 and 352].)
We further conclude even if the admission of such evidence was error, it was not prejudicial, as it was "not reasonably probable that a result more favorable to [defendant] would have been reached absent the error. (See Watson, supra, 46 Cal.2d at p. 836; see also People v. Marks (2003) 31 Cal.4th 197, 226-227 (Marks) [rejecting the " 'harmless beyond a reasonable doubt' " standard of Chapman, supra, 386 U.S. at p. 24, and instead reviewing the "application of ordinary rules of evidence like Evidence Code section 352 . . . under the 'reasonable probability' standard of Watson"].)
B. Admission of Statement that a "Black Adult Male" Was Shooting at People
Defendant also contends the court erred in admitting over a hearsay objection the statement by Officer Lucas, whose testimony is summarized ante, that as he was administering aid to Santos, "[s]everal people were screaming at [him] and saying that a Black male adult was currently still firing a weapon in the crowd in that general vicinity." We also find this contention unavailing.
We initially conclude the fleeting statement was admissible as a spontaneous statement, which is an exception to the hearsay rule. (See Evid. Code, § 1240 [providing: "Evidence of a statement is not made inadmissible by the hearsay rule if the statement: [¶] (a) Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and [¶] (b) Was made spontaneously while the declarant was under the stress of excitement caused by such perception."].)
Here, the record shows Officer Lucas was the first, or one of the first, officers to arrive on scene, roughly three minutes after the call of shots fired was reported. When he arrived, he came upon Santos, who was bleeding and unresponsive. It was then, during the heat of the moment, that someone made the statement about an active shooter being in the area. In addition, the record shows defendant had just fired at least 14 rounds in the parking lot of his apartment complex, where others were present, as K.W. noted, including defendant's own stepdaughter.
Such evidence supports the tacit finding of the trial court that others in the vicinity of the shooting would be acting under "nervous excitement" in notifying officers arriving on scene about the shooting and its victims. (See Evid. Code, § 1240; People v. Poggi (1988) 45 Cal.3d 306, 318 [noting among others the requirement to admit evidence under the spontaneous statement exception to the hearsay rule is that " 'there must be some occurrence startling enough to produce this nervous excitement and render the utterance spontaneous and unreflecting' "].) We thus conclude the court did not abuse its discretion in admitting this statement. (See Cole, supra, 33 Cal.4th at p. 1195.)
In light of our decision, we deem it unnecessary to address the People's alternate contention that the statement was admissible for the nonhearsay purpose of explaining the actions of Officer Lucas after the statement was made.
We further conclude even if the admission of this fleeting statement was error, it was not prejudicial, as the evidence of defendant's guilt was strong, as summarized ante, inasmuch as there was no dispute defendant fired at least 14 shots from his weapon, hitting I.R. multiple times and killing Santos, all of which was witnessed by multiple individuals, as also summarized ante, and which was not result of self-defense, as found by the jury. (See Marks, supra, 31 Cal.4th at pp. 226-227.)
Defendant also contends that the cumulative effect of the court's evidentiary rulings that we have addressed unduly prejudiced him. Because "[w]e have either rejected on the merits defendant's claims of error or have found any assumed errors to be nonprejudicial" (People v. Sapp (2003) 31 Cal.4th 240, 316), we must reject defendant's claim of prejudicial cumulative effect.
III
Remand for Resentencing Is Not Appropriate
Finally, defendant contends he is entitled to remand for resentencing pursuant to Senate Bill No. 1393, which amended sections 667, subdivision (a) and 1385, to allow a trial court to strike enhancements for serious felony priors. Defendant's sentence in this case included five-year terms for each of his prior serious felony convictions.
Effective January 1, 2019, sections 667, subdivision (a), and 1385, subdivision (b), allow a trial court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Under the prior version of section 667, subdivision (a), the court was required to impose a five-year consecutive term for prior serious felony convictions and had no discretion to strike any prior conviction of a serious felony for purposes of enhancement of a sentence. (Garcia, at p. 971.) The People concede, and we agree, that the amendment applies to defendant as his case is not final. (See Id. at pp. 972-973 [Sen. Bill No. 1393 applies retroactively to all cases not yet final on the effective date.].)
The People, however, contend—and we also agree—remand is unnecessary in this case because during defendant's sentencing the court, in denying both defendant's Romero motion to strike one or more of his strike priors and his request to strike the firearm enhancements, clearly indicated as follows that it would not do so based on defendant's lengthy criminal history and the seriousness of the offenses in the instant case: "So the Court is going to deny the request to the invitation to strike strikes. And it is based upon the defendant's record, which dates back to juvenile adjudication all the way back in 1975. And it appears that Mr. Grant has spent far more time in prison or in custody of some sort than he has spent out.
"His prior convictions take up one, two, three—almost four full pages of the probation report. There are convictions for burglary, terms in prison, robbery, terms in prison. The most recent conviction from 2008 was a violation of . . . Section 220 subdivision (b), assault with intent to commit rape and he was convicted of, according to the probation report, a violation of Health and Safety Code Section 11352(a) and did ten years in prison.
"So in light of the circumstances in this case, where Mr. Grant fired multiple, multiple, shots at the intended victim and struck and killed an innocent bystander and in light of the time that he has spent in prison, looking at the particulars of his background, character and his prospects, the Court cannot deem him outside the scheme—the spirt of the three-strikes law scheme and so I'm not going to—I'm not going to do that. [¶] That—and for the same reasons, I'm not going to strike the firearm enhancements, either."
Based on the foregoing, we conclude there is a "clear indication" in the record that even if the court had such discretion to strike one or more of defendant's serious felony priors and reduce his sentence, it would not have done so given defendant's lengthy criminal history and the egregious nature of the offenses committed in the instant case, which led to the killing of an innocent bystander. (See People v. McDaniels (2018) 22 Cal.App.5th 420, 427 [recognizing that the "egregiousness of a defendant's crimes, a defendant's criminal history, and the court's sentencing options and rulings may prompt the court to express its intent to impose the maximum sentence permitted," and that "[w]hen such an expression is reflected in the appellate record, a remand would be an idle act because the record contains a clear indication that the court will not exercise its discretion in the defendant's favor"].)
DISPOSITION
The judgment is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. IRION, J.