Opinion
C078017
05-22-2017
THE PEOPLE, Plaintiff and Respondent, v. MARCUS LOGAN et al., Defendants and Appellants.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 12F05640)
Defendants Marcus Logan and Gabriel McAlister were convicted by jury of murdering Timothy Schweiss. The prosecution's theory was that Logan, McAlister, and another man, co-defendant Marlyn Stewart, lured Schweiss into an apartment complex to rob him; during the commission of that robbery, McAlister pulled out a handgun and shot Schweiss in the abdomen. Each defendant was charged with first-degree murder and attempted robbery. With respect to the murder count, it was alleged as a special circumstance that the murder was committed during an attempted robbery. With respect to each count, it was also alleged McAlister personally discharged a firearm causing death. Following a joint trial before a single jury, McAlister was convicted of first-degree murder, but the jury could not reach a unanimous verdict with respect to the attempted robbery count, the special circumstance allegation, or the firearm enhancement allegation. With respect to Logan, the jury acquitted him of first-degree murder, found him guilty of second-degree murder, and also failed to reach a unanimous verdict as to the attempted robbery count or special circumstance allegation. The trial court sentenced McAlister and Logan to state prison for 25 years to life and 15 years to life, respectively.
Stewart was acquitted of both the murder and the attempted robbery.
On appeal, (1) Logan and McAlister each challenge the sufficiency of the evidence to support their murder convictions. We conclude the evidence is sufficient to support these convictions. Defendants also raise a number of evidentiary claims. Beginning with those asserted by McAlister alone, he claims the trial court prejudicially erred and violated his constitutional rights by admitting into evidence (2) certain statements Logan made implicating McAlister in the murder, (3) certain statements a prosecution witness made concerning McAlister's friends and family making threats against her, and (4) various firearms, ammunition, and a camouflage vest recovered from the apartment in which McAlister stayed on the night of the murder. Turning to evidentiary claims in which both defendants have joined, they assert the trial court prejudicially erred and violated their constitutional rights by (5) admitting into evidence a 911 call in which the caller stated she witnessed a group of black males "rob" and then shoot a white male, and (6) excluding evidence Schweiss had cocaine in his system when he died. We conclude Logan's statements were either properly admitted or harmless error. The remainder of the challenged evidence was properly admitted.
Turning to claims of instructional error, both defendants contend the trial court prejudicially erred and violated their constitutional rights by (7) declining to provide the jury with voluntary manslaughter instructions, and (8) instructing the jury it did not need to unanimously agree as to which theory of murder applied in this case. Logan also claims (9) the trial court prejudicially erred and violated his constitutional rights by providing the jury with incorrect and misleading instructions on accomplice liability and by failing to clarify such liability in response to certain jury questions. We reject each of these claims as well.
Finally, two remaining contentions also fail, (10) one of prosecutorial misconduct raised by McAlister alone, and (11) one of cumulative prejudice raised by both defendants. We therefore affirm the judgments entered against each defendant.
We do, however, agree with McAlister's additional assertion his abstract of judgment must be corrected to remove reference to a sentence of "life with the possibility of parole" that was not imposed by the trial court. Logan's abstract of judgment contains the same error. We shall therefore order the trial court to correct both abstracts of judgment.
FACTS
The Murder
Schweiss was murdered in the parking lot of the Somerset Apartments in the Arden-Arcade area of Sacramento on August 21, 2012. That night, defendants Logan and McAlister and codefendant Stewart were hanging out at the complex. McAlister had spent the previous night in an upstairs apartment (apartment 26) toward the back of the complex. The apartment was leased to one of his friends, Robert Jordan. Jordan was living elsewhere with a girlfriend at the time, but stopped by his apartment the night of the murder to pick up some clothes and was still in the complex when the murder occurred. At some point, McAlister's girlfriend, Ashley Johnson, also came over to apartment 26. Several people lived in the apartment directly below Jordan's apartment (apartment 25), including Amanda Ford. Logan came over to that apartment sometime during the evening and also hung out in front of both apartments with a group of people, including McAlister and Stewart. Members of the group were drinking alcohol and playing dominos.
At about 10:30 p.m., McAlister left the complex and walked across the street with Logan to sell cocaine to someone who had contacted Johnson about making a purchase. When the two returned a short time later, Reginald Dunn was waiting in his car to be let through the gate to the parking lot. Dunn was not associated with anyone involved in this case, but had seen McAlister and Logan around the complex. As the gate opened, McAlister asked Dunn to drive him and Logan to the back of the complex. Dunn agreed. McAlister got into the front passenger seat, removing a handgun from his waistband and placing it in his lap as he sat down. Logan got into the back seat. Dunn then drove to the back of the complex and parked. McAlister and Logan got out and walked back to the group.
A few minutes later, at about 10:40 p.m., Angel Tewksbury came out of her apartment that was across from apartment 26. As she walked towards the parking lot, Stewart asked her to give someone directions to the complex and handed her a cell phone. Tewksbury complied, acknowledging during her testimony at trial she believed Stewart was setting up a marijuana sale. The person on the other end of the line was Schweiss. He was known to sell marijuana in the area. Tewksbury continued her walk to the parking lot while talking to him on the phone. Stewart, McAlister, Logan, and another man joined. Schweiss said he was at the mini mart across the street in a blue van and told Tewksbury to have Stewart come to him. Stewart, however, had walked over to the complex's laundry room. So Tewksbury told Schweiss: "Come in the apartments. He's not here. But he's in the apartments." Schweiss agreed, drove across the street, and pulled into the parking lot. As he parked, Tewksbury walked over to Stewart and returned the phone. McAlister asked where Schweiss was. Tewksbury answered, "right there in the car, the blue van." She then walked back to her apartment, where she heard two gunshots a couple minutes later.
Initially charged with murder along with McAlister, Logan, and Stewart, Tewksbury pleaded guilty to aiding and abetting in the sale of marijuana in exchange for her testimony.
Nikiya Burnett pulled into the parking lot during these intervening minutes. She initially thought "a fight or something was going on." As she described: "There was a big white guy standing behind a car or between two cars and there was some black guys facing him on the opposite sides of the car." She continued: "The white guy was saying leave me alone. He was saying, 'Help. Somebody help. I don't have anything. I gave you everything. Leave me alone. Help. Help.' " Burnett parked her car while the confrontation was still going on and went into her apartment, where she also heard two gunshots. While Burnett could not identify any of the men involved in the confrontation, she did notice one of the men had his hair in dreads, which is how Logan wore his hair. Brianna Menna witnessed both the confrontation and the shooting. While she did not testify at trial, her call to 911 was played for the jury. During the call, she reported: "They shot him. I think he [was] hit once or twice? He was hit once in his lower abdomen." She also reported, "they were robbing him" and "ran off" after the shooting. Both Menna and Burnett, who came out of her apartment after the shots were fired and also called 911, comforted Schweiss as he lay bleeding in the parking lot.
As previously mentioned, Jordan was also in the complex when Schweiss was shot. Hearing a "boom," Jordan turned to run in the opposite direction, but slipped and fell to the ground. He then got up and walked toward his brother's apartment, near apartment 26. As he did so, a number of people walked past him from the direction of the parking lot. McAlister was one of these people. Jordan asked McAlister what happened. McAlister responded: "We ain't playing." When Jordan asked what that meant, McAlister said: "I downed him." Jordan could see McAlister was armed with a handgun. However, despite being familiar with firearms, Jordan had "never seen one like that." A few seconds later, Logan also walked past Jordan from the same direction.
A couple minutes after the shooting, McAlister and Logan entered apartment 25. As mentioned, Ford lived in this apartment. She was playing dominos with the group outside when she heard the gunshots and quickly retreated into the apartment. Several people were already inside the apartment when McAlister and Logan arrived. Ford testified Logan sat quietly by himself in the living room with his head down while McAlister and another man, who went by the nickname "June," talked in the kitchen. McAlister was laughing about the shooting. He said he got "two zips of weed" and then, as he put it, "I turned around and was like pop, pop," using his hand to imitate firing a gun. According to Ford, McAlister "thought the whole thing was funny" and "had no remorse whatsoever for what happened." McAlister returned to apartment 26 about 15 minutes later; Logan spent the night in apartment 25. At some point that night, Logan also told Ford: "I'm gonna kill [McAlister] because he just killed that man for no reason," and "[McAlister] turned around and just shot him for no reason."
In the meantime, police and emergency medical personnel arrived at the complex. Schweiss was transported to the hospital, where he was pronounced dead. The cause of death was a single gunshot wound to the abdomen. The bullet traveled through the stomach and pancreas, damaged the aorta and other smaller blood vessels, and also caused a fracture to the spinal column, before lodging in the muscles of the back.
While Stewart is not an appellant in this case, we note he was in front of a different apartment complex across the street with Lasharita Mercado when emergency personnel arrived. Mercado placed a small amount of marijuana wrapped in cellophane between her breasts. Mercado knew Stewart to sell marijuana, having bought some from him about 10 minutes before the shooting. She had also seen Schweiss in the area selling marijuana.
Police Investigation
Homicide detectives arrived at the crime scene early the next morning. A live round of 7.62x39mm ammunition was found on the ground one parking space away from where Schweiss's van was parked. An expended cartridge of the same caliber and brand was found a short distance away, across the parking lot from the van. The van's passenger side sliding door was struck by the round that did not hit Schweiss. That bullet's jacket was recovered from inside the door panel. A comparison of the expended cartridge found in the parking lot with both the jacket recovered from the door panel and that recovered from Schweiss's back indicated both could have been fired from the same gun and were likely the same caliber as the expended cartridge. Inside the van was a duffel bag that had the strong odor of marijuana. Particles of the plant were found inside, but not a sellable amount. Also in the van, at the bottom of a trash can, was Schweiss's wallet containing around $100. The van further contained an expended simunition cartridge, non-lethal ammunition used by law enforcement agencies for training purposes. Part of a simunition round was also found on the ground near the van.
Further investigation, including review of video recorded by various surveillance cameras located around the apartment complex, indicated to detectives that persons of interest may be in apartments 25 and 26. These apartments were cleared by a SWAT unit after sunrise. McAlister and Johnson emerged from apartment 26. Logan, Ford, and several others, including seven children, emerged from apartment 25. Before exiting the latter apartment, Ford helped Logan cut off his dreads.
A subsequent search of apartment 26 uncovered a half-full box of ammunition of the same caliber and brand as the live round and expended cartridge recovered from the parking lot. The box was hidden inside the bottom of a chair. This particular type of ammunition is relatively rare in the United States, originating from the Soviet Union, and is fired by various Eastern Bloc submachine guns and service pistols, which would explain why Jordan had never seen a gun like the one McAlister was carrying immediately following the murder. Nothing of evidentiary value was found in apartment 25. However, Ford testified she found a bag containing the dreads she helped Logan remove and a bag of simunition rounds in the apartment sometime after the police conducted their search. She drove the items to another part of Sacramento and threw them in a creek.
Also in a chair, beneath the cushion, was a loaded .45 caliber handgun. However, this gun could not have fired the cartridge recovered from the parking lot.
The gun used to murder Schweiss was not recovered. Nor were the "two zips of weed" McAlister admitted taking from him. Logan also admitted during his police interview that was played for the jury during the prosecution's rebuttal case, he was present during the robbery. He acknowledged, "people wanted free weed" and "somebody" pulled a gun and demanded the product before Schweiss was killed.
Logan and McAlister each presented a defense case. McAlister testified during his defense case. The prosecution then presented a case in rebuttal that included Logan's statement to police. We describe Logan's statement and McAlister's testimony in greater detail in the discussion portion of this opinion. Where relevant, other evidence presented during these portions of the trial will also be described in the discussion.
DISCUSSION
SUFFICIENCY OF THE EVIDENCE CLAIMS
I
Sufficiency of the Evidence
Logan and McAlister each challenge the sufficiency of the evidence to support their murder convictions. We conclude the evidence is more than sufficient to support these convictions.
A.
Legal Principles
"Murder is the unlawful killing of a human being . . . with malice aforethought." (Penal Code, § 187, subd. (a).) "Such malice may be express or implied." (§ 188.) Express malice "requires an intent to kill that is 'unlawful' because . . . '"there is no justification, excuse, or mitigation for the killing recognized by the law."' [Citation.] [¶] Malice is implied when an unlawful killing results from a willful act, the natural and probable consequences of which are dangerous to human life, performed with conscious disregard for that danger." (People v. Elmore (2014) 59 Cal.4th 121, 133.)
Undesignated statutory references are to the Penal Code.
Section 189 describes a number of unlawful killings that are statutorily defined as "murder of the first degree," including a "willful, deliberate, and premeditated killing" and a killing "committed in the perpetration of, or attempt to perpetrate, [certain listed felonies, including] robbery," and provides that "[a]ll other kinds of murders are of the second degree." The latter form of first degree murder, known as first degree felony murder, does not require malice aforethought. Instead, "the only criminal intent required is the specific intent to commit the particular felony." (People v. Dillon (1983) 34 Cal.3d 441, 475.)
"All persons concerned in the commission of a crime . . . whether they directly commit the act constituting the offense, or aid and abet in its commission . . . are principals in any crime so committed." (§ 31.) "If the defendant himself [or herself] commits the offense, he [or she] is guilty as a direct perpetrator. If he [or she] assists another, he [or she] is guilty as an aider and abettor." (People v. Perez (2005) 35 Cal.4th 1219, 1225.)
B.
McAlister's First Degree Murder Conviction
McAlister argues his first degree murder conviction must be reversed because there is insufficient evidence of premeditation and deliberation. He is mistaken.
We first note the prosecution primarily relied on a felony-murder theory of first degree murder. McAlister does not challenge the sufficiency of the evidence to support his conviction under this theory. Nor would such a challenge be successful. Thus, even if we were to agree with his assertion evidence of premeditation and deliberation is lacking, we would nevertheless be obliged to affirm because "a valid ground for the verdict remains," i.e., the felony-murder theory, at least "absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground." (People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
Acknowledging this to be the law, McAlister argues the jury's inability to agree as to the attempted robbery count and the special circumstance allegation indicates the jury did in fact rely on the alternative theory of premeditation and deliberation. Not necessarily. Even if the only theory of first degree murder was felony-murder and the jury acquitted McAlister of the attempted robbery count and found the special circumstance allegation not true, such a clear inconsistency in the verdicts would not require reversal of the first degree murder conviction. (See People v. Santamaria (1994) 8 Cal.4th 903, 911 ["if an acquittal of one count is factually irreconcilable with a conviction on another, . . . effect is given to both"].) The reason is simple: "The jury may have been convinced of guilt but arrived at an inconsistent acquittal . . . 'through mistake, compromise, or lenity . . . .' " (Ibid., quoting United States v. Powell (1984) 469 U.S. 57, 65 [83 L.Ed.2d 461, 469].) Here, the jury did not acquit McAlister of attempted robbery or find the special circumstance allegation not true. There was, however, at least one holdout with respect to this charge and allegation. But the same line of reasoning applies. Even the holdout or holdouts may well have been convinced of McAlister's guilt of first degree murder under a felony-murder theory but declined to vote to convict on the attempted robbery count or find the special circumstance allegation true through mistake, compromise, or lenity. Thus, we cannot say the jury's failure to agree on the attempted robbery count and special circumstance allegation affirmatively indicates it rejected the felony-murder theory and instead relied on the alternative theory of premeditation and deliberation.
In any event, even if we were to conclude McAlister is right about the theory the jury relied upon to convict him of first degree murder, this theory is also sufficiently supported by the evidence adduced against him. The jury was correctly instructed: "A defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately and with premeditation. [¶] The defendant acted willfully if he intended to kill. [¶] The defendant acted deliberately if he careful[ly] weighed the considerations for and against his choice and knowing the consequences decided to kill. [¶] The defendant acted with premeditation if he decided to kill before completing the act that caused death. [¶] The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. [¶] The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. [¶] A decision to kill . . . made rashly, impulsively or without careful consideration is not deliberate and premeditated. [¶] On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time."
"Review on appeal of the sufficiency of the evidence supporting the finding of premeditated and deliberate murder involves consideration of the evidence presented and all logical inferences from that evidence in light of the legal definition of premeditation and deliberation that was previously set forth. Settled principles of appellate review require us to review the entire record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—from which a reasonable trier of fact could find that the defendant premeditated and deliberated beyond a reasonable doubt. [Citations.] The standard of review is the same in cases such as this where the People rely primarily on circumstantial evidence. [Citation.] 'Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.' [Citation.]" (People v. Perez (1992) 2 Cal.4th 1117, 1124 (Perez).)
Defendant frames his argument regarding the sufficiency of the evidence of premeditation and deliberation in terms of the "guidelines" articulated by our Supreme Court in People v. Anderson (1968) 70 Cal.2d 15, 24-31 (Anderson) for use by appellate courts in assessing the sufficiency of such evidence. There, the court noted three types of evidence typically provide support to a murder conviction based on premeditation and deliberation, i.e., planning activity, motive, and manner of killing. "[T]o sustain a verdict of premeditated and deliberate murder, [Anderson] required (1) extremely strong evidence of planning, (2) evidence of motive in conjunction with evidence of planning or of a calculated manner of killing, or (3) evidence of all three indicia of premeditation and deliberation." (People v. Memro (1995) 11 Cal.4th 786, 863; see Anderson, supra, at p. 27.)
However, in Perez, supra, 2 Cal.4th 1117, our Supreme Court cautioned that "Anderson did not purport to establish an exhaustive list that would exclude all other types and combinations of evidence that could support a finding of premeditation." (Id. at p. 1125.) Since Perez, the court has cautioned on multiple occasions " '[u]nreflective reliance on Anderson[, supra, 70 Cal.2nd 15] for a definition of premeditation is inappropriate. The Anderson analysis was intended as a framework to assist reviewing courts in assessing whether the evidence supports an inference that the killing resulted from preexisting reflection and weighing of considerations. It did not refashion the elements of first degree murder or alter the substantive law of murder in any way.' [Citation.] In other words, the Anderson guidelines are descriptive, not normative. 'The Anderson factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive.' [Citation.]" (People v. Koontz (2002) 27 Cal.4th 1041, 1081; People v. Hovarter (2008) 44 Cal.4th 983, 1019.)
Here, the prosecution presented evidence of all three indicia of premeditation and deliberation described in Anderson. Beginning with planning, while it was Stewart who called Schweiss, and Tewksbury who told him to drive into the parking lot, the record supports a reasonable inference it was McAlister who wanted him there. Tewksbury was simply arranging what she believed to be a marijuana sale. And between Stewart and McAlister, it was the latter who asked where Schweiss was parked, while Stewart sat by himself next to the laundry room. Luring Schweiss into that parking lot, rather than meeting him across the street where McAlister had already conducted a drug sale earlier in the night, evidenced a plan to rob him of his marijuana, at the very least. Bringing a loaded firearm evidenced a preconceived design to kill should it be necessary to effectuate the robbery. (See People v. Watkins (2012) 55 Cal.4th 999, 1026 (Watkins) [bringing loaded handgun to an attempted robbery provided evidence of planning].) Turning to motive, as in Watkins, McAlister possessed a motive "to effectuate [the] robbery . . . by killing the victim-witness." (Id. at p. 1026.)
Finally, the manner of killing also indicated premeditation and deliberation. As McAlister himself admitted in Ford's apartment, he "turned around and was like pop, pop," using his hand to imitate firing a gun. The presence of a live round at the murder scene, in addition to the expended cartridge, also provided evidence both that the gun was loaded when McAlister pulled it on Schweiss and he manually racked the slide in order to ensure there was a round in the chamber. This is because, as the firearms expert testified, racking the slide with a live round already in the chamber ejects that live round and pulls a new round into the chamber from the magazine. After that round is fired, the gun automatically ejects the expended cartridge and pulls another round into the chamber. McAlister's act of manually ensuring the gun was loaded, followed by an admittedly nonchalant firing of two shots at the victim, one of which struck him in the abdomen, provided evidence McAlister made a cold and calculated decision to kill. (See Watkins, supra, 55 Cal.4th at p. 1026 [manner of killing evidenced premeditation and deliberation where "shot fired from a pistol with a heavy trigger pull, which hit the victim's elbow and abdomen"].)
We conclude the evidence is sufficient to support McAlister's first degree murder conviction.
C.
Logan's Second Degree Murder Conviction
Logan argues his second degree murder conviction must be reversed because "there is no substantial evidence that he aided and abetted a premeditated murder or that he aided and abetted any conduct that is legally sufficient to make him liable for second degree murder." We disagree.
We first note the jury was not instructed on the natural and probable consequences doctrine. Had the jury been so instructed, our affirmance of Logan's murder conviction would be more obvious. An aider and abettor "'is guilty of not only the intended crime [target offense] but also of any other crime the perpetrator actually commits [nontarget offense] that is a natural and probable consequence of the intended crime." (People v. Medina (2009) 46 Cal.4th 913, 920.) "Liability under the natural and probable consequences doctrine 'is measured by whether a reasonable person in the defendant's position would have or should have known that the charged offense was a reasonably foreseeable consequence of the act aided and abetted.' [Citation.]" (Ibid.) Logan does not argue the evidence is insufficient to support a reasonable conclusion he aided and abetted an attempted robbery. And we would have no problem concluding a reasonable person in Logan's position would have or should have known a murder was a reasonably foreseeable consequence of such a crime, particularly where both Schweiss and McAlister were drug dealers and the jury could reasonably have concluded Logan was aware McAlister brought a loaded handgun to the robbery. (See People v. Cummins (2005) 127 Cal.App.4th 667, 677 ["murder . . . can be a natural and probable consequence of robbery"].) However, we may not affirm based "on a theory neither advanced at trial nor factually determined by the jury." (People v. Moses (1990) 217 Cal.App.3d 1245, 1248.)
Instead, we must determine whether there is substantial evidence from which a reasonable jury could have concluded Logan committed murder either as a direct perpetrator or as an aider and abettor of that crime. We conclude there is. As we have already explained, substantial evidence supports a reasonable conclusion McAlister murdered Schweiss with premeditation and deliberation. Logan argues that in order to be guilty of murder as an aider and abettor, he must therefore have shared McAlister's intent to commit a premeditated murder. Not so.
"[A]ider and abettor liability requires proof in three distinct areas: (a) the direct perpetrator's actus reus—a crime committed by the direct perpetrator, (b) the aider and abettor's mens rea—knowledge of the direct perpetrator's unlawful intent and an intent to assist in achieving those unlawful ends, and (c) the aider and abettor's actus reus—conduct by the aider and abettor that in fact assists the achievement of the crime." (People v. Perez, supra, 35 Cal.4th at p. 1225.) " '[O]nce it is proved that "the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his [or her] own mens rea." That is, although joint participants in a crime are tied to a "single and common actus reus," "the individual mentes reae or levels of guilt of the joint participants are permitted to float free and are not tied to each other in any way. . . ." ' [Citation.]" (People v. McCoy (2001) 25 Cal.4th 1111, 1118-1119, internal italics omitted.)
The first area of proof, McAlister's actus reus, has been discussed in detail above. The evidence supports a reasonable conclusion he caused Schweiss to be lured into the apartment complex parking lot in order to rob him of marijuana, brought a loaded handgun to the robbery, and at some point before or during the commission of that crime made a cold and calculated decision to kill. Turning to Logan's mens rea and actus reus, we note that "[m]ere presence at the scene of a crime is not sufficient to constitute aiding and abetting, nor is the failure to take action to prevent a crime, although these are factors the jury may consider in assessing a defendant's criminal responsibility. [Citation.] Likewise, knowledge of another's criminal purpose is not sufficient for aiding and abetting; the defendant must also share that purpose or intend to commit, encourage, or facilitate the commission of the crime. [Citation.]" (People v. Nguyen (1993) 21 Cal.App.4th 518, 529-530.) Along with presence at the scene of the crime and failure to prevent it, "companionship" and "conduct before and after the offense," including "flight," are relevant to the jury's determination as to whether a defendant aided and abetted in the commission of the crime. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1094-1095 (Lynette G.).)
Here, there is no question Logan was present during the confrontation with Schweiss that Burnett described witnessing as she pulled into the parking lot that night. Indeed, Logan admitted as much during his interview with police. Substantial evidence supports a reasonable conclusion this confrontation was actually a robbery in progress, including Logan's own statement that "people wanted free weed." With respect to companionship, Logan was with McAlister during a drug deal that transpired across the street a matter of minutes before the robbery and murder of Schweiss. He was in Dunn's car with McAlister in the interim, during which McAlister removed his handgun from his waistband and placed it in his lap. Although Logan was seated in the back seat, his companionship with McAlister and the casual manner in which the latter carried the gun supports a reasonable inference Logan also knew McAlister was armed. Logan also admitted during his police interview he bought marijuana from Schweiss in the past. He called Schweiss "the weed man." From this, and the fact McAlister was a drug dealer who was armed with a handgun, the jury could have reasonably concluded Logan was aware, at the very least, of McAlister's intent to rob Schweiss of his marijuana and use the gun against him if necessary to effectuate the robbery. Moreover, Logan was not merely present during the robbery-murder. The surveillance video confirms he was one of the men involved in the confrontation with Schweiss. Then, after McAlister fired the fatal shots, he and Logan fled from the parking lot together and immediately went into Ford's apartment, where she overheard McAlister laughing about the shooting. Logan also cut off his dreads the following morning before being taken into custody, evidencing his consciousness of guilt by changing his physical appearance.
In sum, in addition to Logan's presence at the scene of the murder, the jury had ample evidence of his companionship with McAlister and his conduct before and after the murder, including his flight with McAlister to the same location after the murder, indicating he was a willing participant in McAlister's criminal activities that night and in the use of whatever level of force might be necessary to carry them out. Thus, at the very least, Schweiss's death "result[ed] from a willful act," i.e., McAlister's use of a handgun to effectuate a robbery, "the natural and probable consequences of which [was] dangerous to human life," and that act was "performed with conscious disregard for that danger." (People v. Elmore, supra, 59 Cal.4th at p. 133 [defining implied malice murder].) The evidence supports a reasonable conclusion Logan both intended to assist and did in fact assist McAlister in the commission of that murderous act.
While the jury was not instructed on the natural and probable consequences doctrine, it was instructed on the definition of implied malice murder.
Finally, Logan's reliance on Juan H. v. Allen (9th Cir. 2005) 408 F.3d 1262 (Juan H.) is misplaced. There, a minor was with his older brother when the latter committed a gang-related murder and attempted murder with a shotgun. After the shooting, the shooter ran to his car and drove away while the minor ran home to his family's trailer. The minor also provided a false alibi to police when subsequently questioned. (Id. at pp. 1267-1268.) After a juvenile court found the minor culpable of first degree murder and attempted murder as an aider and abettor, the Court of Appeal affirmed, and the federal district court denied the minor's petition for habeas corpus. (Id. at p. 1269.) The United States Court of Appeals for the Ninth Circuit reversed, holding the evidence was not sufficient to support "a conclusion that [the minor] knew that [his brother] planned to commit the first-degree murders of [the victims], and that [he] took some action intended to encourage or facilitate [his brother] in completing the killings." (Id. at p. 1279.) Rejecting the Court of Appeal's reliance on evidence of consciousness of guilt, the Ninth Circuit explained the record did not support a reasonable conclusion the minor left the murder scene in common flight with his brother rather than simply run home following the shooting; nor did the record support the conclusion false statements made during his police interrogation evidenced consciousness of guilt rather than a desire to protect his brother. (Id. at p. 1277.) The court further explained that while the shooter had a motive to murder the victims (his belief that they had shot at the family's home), the record contained little more than speculation to suggest the minor shared this motive. (Id. at pp. 1277-1278.) Finally, the court reasoned the minor's action of standing behind his brother during the altercation did not establish that he knew his brother would assault or murder the victims without provocation. (Id. at p. 1278.)
Here, Logan did not simply stand behind McAlister while the latter committed what could arguably be described as an unexpected murder. Instead, the evidence in this case supports the conclusion Schweiss was murdered during the commission of an armed robbery. Logan participated in that robbery. And unlike Juan H., supra, 408 F.3d 1262, Logan did flee the murder scene in common flight with McAlister. In that respect, this case is more like Lynette G., supra, 54 Cal.App.3d 1087, a robbery case in which the minor appellant "fled with the perpetrator and two others after the crime . . . and was still in their company shortly thereafter." (Id. at p. 1095.) There, the Court of Appeal held sufficient evidence supported aiding and abetting liability and explained the trier of fact could reasonably "have concluded that had [the minor's] flight been from fear of an unjustified charge of involvement, she also would have immediately disassociated herself from the other three girls." (Lynette G., supra, at p. 1095.) So too here. Logan's act of cutting off his dreads the following morning also evidenced his consciousness of guilt. Moreover, also unlike Juan H., Logan was not convicted of first degree murder and attempted murder. He was convicted of second degree murder. Accordingly, the evidence need only support a reasonable conclusion that he harbored implied malice. As we have already explained, such a conclusion is supported by the record in this case.
We conclude the evidence is sufficient to support Logan's second degree murder conviction.
CLAIMS OF EVIDENTIARY ERROR
II
Admission of Logan's Statements Implicating McAlister
McAlister contends the trial court prejudicially erred and violated his federal constitutional rights by admitting into evidence certain statements made by Logan implicating McAlister in the murder. As we explain, the challenged statements were either properly admitted or their admission harmless.
A.
Statements Made During Logan's Police Interview
McAlister argues the trial court violated the Aranda/Bruton rule, and thereby violated his right of cross-examination under the Sixth Amendment's confrontation clause, by admitting into evidence certain statements Logan made during his police interview, specifically that " 'they' or 'somebody' with him wanted free weed." He also claims the statements "should have been excluded as unduly prejudicial" under Evidence Code section 352 and their admission "denied [him] both due process and a fundamentally fair trial." With respect to the confrontation clause claim, we conclude Logan's statements were admitted in violation of the confrontation clause, but the error was harmless. This conclusion obviates the need to specifically address McAlister's second claim, which is also forfeited.
Bruton v. United States (1968) 391 U.S. 123 (Bruton); People v. Aranda (1965) 63 Cal.2d 518 (Aranda).
1. Additional Background
During Logan's police interview, after initially claiming he was inside Ford's apartment when the shooting occurred, Logan admitted he was in the parking lot and saw Schweiss "get shot." When the detective conducting the interview asked what happened, Logan said: "Other people wanted free weed, I guess, 'cause they didn't wanna pay for it." Logan also nodded in agreement when the detective said: "So somebody that was with you there, wanted - didn't wanna pay for it, so they were tryin' to rob the guy of the weed? Obviously somebody had a gun. Is that what happened? They tried to rob him for the weed? They pulled a gun out and said give me your weed?" Logan then said two men went into Schweiss's van to take the marijuana and denied being one of them. He never specifically implicated McAlister as a participant in the robbery.
This interview was admitted into evidence during the prosecution's case in rebuttal, after both Logan and McAlister put on their defense cases. McAlister testified during his defense case, providing an account of the murder that implicated a man he referred to as "Little Bro." According to McAlister, after he and Logan went across the street to make a cocaine sale and returned to the back of the complex in Dunn's car, Little Bro approached him and asked whether he had any more "powder" because a friend had sent someone over to the complex to make a purchase. McAlister said he did and walked over to the parking lot with Little Bro, a girl who was giving somebody directions over the phone, and "some other guy." Schweiss then pulled into the parking lot, got out of his van, and asked McAlister, "do you got it[?]" McAlister said he did and walked over to the van with Schweiss and Little Bro. On the way, Little Bro said Schweiss owed him money. When they got to the van, Schweiss and McAlister got inside to negotiate the sale while Little Bro, still outside the van, started "bickering" with Schweiss about being owed money. Schweiss and McAlister then got out of the van. As McAlister described: "Little Bro he kept arguing talking about you trying to buy some powder and you ain't pay me my money and Little Bro punched him." As Schweiss tried to get away, Little Bro pulled out a gun. McAlister said, "whoa, hold on," and told Schweiss to leave. Schweiss got in the van, but then "jumped right back out," at which point McAlister was "trying to like keep Little Bro away from him." Schweiss again got in the van and again got back out. This was when McAlister heard gunshots and ran back to apartment 26. McAlister neither confirmed nor denied Logan's presence in the parking lot during these events and said he lost track of Logan's movements after they returned to the complex in Dunn's car.
McAlister objected to the admission of Logan's police statement to rebut his trial testimony, arguing its admission would violate his right of confrontation under the Sixth Amendment to the United States Constitution. The trial court overruled the objection, agreeing with the prosecutor's argument Logan never implicated McAlister during the interview.
2. Analysis
McAlister renews his confrontation claim on appeal. We conclude a confrontation violation occurred, but was harmless.
"The confrontation clause of the Sixth Amendment to the federal Constitution, made applicable to the states through the Fourteenth Amendment, provides that '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him [or her].' The right of confrontation includes the right of cross-examination." (People v. Fletcher (1996) 13 Cal.4th 451, 455 (Fletcher).)
The Aranda/Bruton rule generally prohibits the admission, at a joint trial, of one defendant's out-of-court statement "that is 'powerfully incriminating' as to a second defendant when determining the latter's guilt." (Fletcher, supra, 13 Cal.4th at p. 455.) In Aranda, supra, 63 Cal.2d 518, our Supreme Court held that when the prosecution seeks to introduce an out-of-court statement of one defendant that implicates another defendant, "the trial court must adopt one of three procedures: (1) in a joint trial, effectively delete direct and indirect identifications of codefendants; (2) grant a severance of trials; or (3) if severance has been denied and effective deletion is not possible, exclude the statement. In the absence of a holding by the United States Supreme Court, the Aranda court declared these rules were not constitutionally compelled, but judicially declared to implement the provisions for joint and separate trials of . . . section 1098." (People v. Song (2004) 124 Cal.App.4th 973, 980-981, citing Aranda, supra, 63 Cal.2d at p. 530.)
The Aranda decision was abrogated in 1982 by the "Truth-in-Evidence" provision of Proposition 8 (Cal. Const., art. I, § 28, subd. (d)) "to the extent [that decision] requires the exclusion of evidence that need not be excluded under federal constitutional law." (Fletcher, supra, 13 Cal.4th at p. 465.)
Three years later, the United States Supreme Court decided Bruton, supra, 391 U.S. 123, holding the admission in a joint trial of an out-of-court statement made by one defendant that is "powerfully incriminating" as to another defendant violates the latter's right of cross-examination secured by the Sixth Amendment's confrontation clause even if the jury is instructed to consider the statement only against the defendant by whom the statement was made. (Id. at p. 137.) The high court explained: "[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented . . . where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial." (Id. at pp. 135-136.)
Thereafter, in Crawford v. Washington (2004) 541 U.S. 36 (Crawford), the United States Supreme Court held the confrontation clause (1) applies only to out-of-court statements that are "testimonial," i.e., offering "testimony" against a defendant (whether or not in a court proceeding), but (2) strictly requires the exclusion of such statements, despite any applicable hearsay exception, unless the declarant is unavailable and the defendant has had a prior opportunity for cross-examination (id. at pp. 51-54, 59), overruling Ohio v. Roberts (1980) 448 U.S. 56 that held hearsay evidence to be admissible if within a "'firmly rooted hearsay exception'" or bearing "'particularized guarantees of trustworthiness.'" (Crawford, supra, 541 U.S. at p. 60; see also Davis v. Washington (2006) 547 U.S. 813, 821 (Davis) [only "'testimonial statements' . . . cause the declarant to be a 'witness' within the meaning of the Confrontation Clause"].)
Thus, we must first determine whether Logan's police statement offered testimony against McAlister. The Attorney General argues it did not because it "was admitted for the nonhearsay purpose of rebutting defense evidence presented by both Logan and McAlister." However, as she acknowledges, the jury was not instructed to consider the statement solely for impeachment purposes. Nor was the jury instructed not to consider the statement as evidence against McAlister. Moreover, as against McAlister, Logan's police statement impeached his testimony precisely because it provided a contrary account of events, i.e., a murder arising out of the commission of a robbery as opposed to one arising out of a dispute between Little Bro and Schweiss over whether or not a debt was owed, and there is no reason to believe the jury did not consider Logan's account for its truth in addition to its tendency to impeach. Indeed, the more true the jury found Logan's account of events to be, the more it would impeach McAlister's contrary account.
Turning to Aranda/Bruton, the Attorney General argues "Logan's statement did not violate [that] rule because it did not implicate McAlister in the charged crimes." She relies on Richardson v. Marsh (1987) 481 U.S. 200 (Richardson), in which the United States Supreme Court held "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." (Id. at p. 211, italics added.) Unlike Bruton, where "the codefendant's confession 'expressly implicat[ed]' the defendant as his accomplice," in Richardson, "the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant's own testimony)." (Id. at p. 208.) The high court explained: "Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that 'the defendant helped me commit the crime' is more vivid than inferential incrimination, and hence more difficult to thrust out of mind. Moreover, with regard to such an explicit statement the only issue is . . . whether the jury can possibly be expected to forget it in assessing the defendant's guilt; whereas with regard to inferential incrimination the judge's instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget." (Ibid.)
Here, like Richardson, Logan's statements in the police interview did not directly implicate McAlister. They implicated "somebody" who pulled a gun, demanded Schweiss's marijuana, and then shot him. They also implicated two unnamed people who went into Schweiss's van to take the product. McAlister's own testimony, and other evidence presented during the trial, provided the inferential link connecting Logan's nonidentifying statements to the conclusion McAlister was actually the "somebody" to whom Logan was referring. Accordingly, had the jury been instructed not to consider Logan's statements as evidence against McAlister, the jury may well have been able to follow that instruction. But the jury was not so instructed. Richardson is therefore inapposite.
For the same reason, the Attorney General's reliance on Fletcher, supra, 13 Cal.4th 451 and People v. Burney (2009) 47 Cal.4th 203 (Burney) is also misplaced. In Fletcher, our Supreme Court held that where "a nontestifying codefendant's extrajudicial confession is edited by replacing all references to the [coparticipant defendant's] name with pronouns or similar neutral and nonidentifying terms," such "editing will be deemed insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession . . . ." (Fletcher, supra, at p. 456.) This is because, in such a situation, as in the standard Bruton situation, "the risk is unacceptably great that jurors would be unable to follow the trial court's instruction to disregard the confession in determining the [defendant's] guilt." (Id. at p. 457.) Similarly, in Burney, our Supreme Court described the rule as "when, despite redaction, a codefendant's statement obviously refers directly to the defendant and implicates him or her in the charged crimes, the Bruton rule applies and introduction of the statement at a joint trial violates the defendant's rights under the confrontation clause." (Burney, supra, at pp. 231-232.) There, too, the jury was instructed to consider the codefendant's statement against the speaker only, and not against the defendant. (Id. at p. 228.)
In both Burney and Fletcher, our Supreme Court concluded a Bruton violation occurred. (Burney, supra, at pp. 231-232; Fletcher, supra, at pp. 456-457.) Unlike those cases, the Attorney General argues, the "somebody" Logan referred to in his police statement did not obviously refer directly to McAlister and, therefore, reasonable jurors could have avoided drawing the inference McAlister was involved in the robbery-murder Logan described. Indeed, McAlister's testimony, which supplied one of the inferential links connecting him to Logan's statement, also supplied an alternative "somebody," i.e., Little Bro. Again, had the jury been instructed not to use Logan's statements as evidence against McAlister, we might agree his statements were not so powerfully incriminating the jury would not be able to follow that instruction. But none of the cases cited by the Attorney General stands for the proposition that an incriminating statement, even one that is only inferentially incriminating, may be properly admitted without a limiting instruction.
Because the jury was not instructed to consider Logan's statements against himself only, and not against McAlister, the question is not whether these statements were so powerfully incriminatory as to McAlister that the jury was unlikely to be able to follow the instruction. Instead, the question is simply the Crawford question of whether they offered testimony against McAlister. If so, exclusion was required by the confrontation clause unless Logan was unavailable and McAlister had a prior opportunity for cross-examination. (Crawford, supra, at pp. 51-54, 59.) Logan's decision not to testify made him unavailable. McAlister had no prior opportunity for cross-examination. And, as we have already explained, Logan's statements provided testimony against McAlister. Indeed, aside from arguing the statements were not offered for their truth, which we have rejected, the Attorney General properly concedes Logan's statements were testimonial in nature.
Citing People v. Reid (2012) 19 N.Y.3d 382, "and cases cited therein" (e.g., United States v. Holmes (8th Cir. 2010) 620 F.3d 836, 843-844; United States v. Lopez-Medina (10th Cir. 2010) 596 F.3d 716, 733; United States v. Cruz-Diaz (1st Cir. 2008) 550 F.3d 169, 178; United States v. Acosta (5th Cir. 2007) 475 F.3d 677, 683-684; but see United States v. Cromer (6th Cir. 2004) 389 F.3d 662, 679 ), the Attorney General also asserts, "McAlister opened the door" to the admission of Logan's police interview. This assertion is made without discussion of any of these cases or of the standard set forth therein for assessing whether or not a defendant has opened the door to the admission of otherwise inadmissible testimonial hearsay. We therefore consider the argument forfeited. In any event, because we conclude the confrontation violation was harmless, we need not decide whether we agree with New York's highest court, and some but not all of the federal circuits, that the door may be opened to a confrontation clause violation and whether or not such a door was opened in this case.
We must now determine whether the confrontation clause violation was prejudicial under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 . As our Supreme Court has explained, "if the properly admitted evidence is overwhelming and the incriminating extrajudicial statement is merely cumulative of other direct evidence, the error will be deemed harmless." (People v. Anderson (1987) 43 Cal.3d 1104, 1129, superseded by statute on another point as stated in People v. Mil (2012) 53 Cal.4th 400, 408-409.)
Here, direct evidence overwhelmingly placed McAlister at the scene of the murder, including his own testimony admitting he was there. There was also strong evidence, aside from Logan's police statements, that the murder occurred during the commission of a robbery. As we have already described, Burnett testified that during the confrontation she witnessed while pulling into the parking lot, Schweiss was saying: "Help. Somebody help. I don't have anything. I gave you everything. Leave me alone. Help. Help." These pleas make little sense unless the confrontation she witnessed was a robbery in progress. And while Logan's police statements do not specifically identify McAlister as the man who demanded marijuana from Schweiss and then shot him, McAlister's own statements establish his identity as that person. While joking about the shooting in Ford's apartment, McAlister said he got "two zips of weed" and then "turned around and was like pop, pop," using his hand to imitate firing a gun. McAlister also told Jordan, "I downed him," as McAlister retreated from the direction of the parking lot to Ford's apartment immediately following the shooting. Thus, McAlister's own statements were far more powerfully incriminating than Logan's inferentially incriminating statements. Moreover, as we describe below, Logan's statements to Ford, i.e., McAlister "just killed that man for no reason" and "just shot him for no reason," were properly admitted. These statements corroborated McAlister's statements in Ford's apartment and to Jordan on his way into that apartment. Finally, as more fully detailed during our discussion of the sufficiency of the evidence, circumstantial evidence also strongly established McAlister's identity as the shooter, including evidence he was armed with a handgun immediately before and after the shooting, Schweiss was shot with an uncommon caliber of ammunition, a box of such ammunition was found hidden in apartment 26, where McAlister stayed the night of the murder, this type of ammunition was fired by a limited number of Eastern Bloc handguns, and despite Jordan's familiarity with firearms, he had never seen a gun like the one he saw in McAlister's possession after the shooting.
In light of all of this evidence, we conclude the admission of Logan's police statements was harmless beyond a reasonable doubt.
McAlister also argues Logan's police statements "should have been excluded as unduly prejudicial" under Evidence Code section 352 and their admission "denied [him] both due process and a fundamentally fair trial." This argument is forfeited by McAlister's failure to object on this specific ground below. (Evid. Code, § 353.) Anticipating such a conclusion, McAlister claims his trial counsel rendered constitutionally deficient assistance by failing to so object. However, because a claim of ineffective assistance of counsel requires a showing of prejudice as an element of such a claim, our conclusion that admission of Logan's police statements was harmless beyond a reasonable doubt also disposes of this claim.
B.
Statements Logan Made to Ford
McAlister further argues the trial court prejudicially erred and violated his constitutional rights by admitting into evidence certain portions of Ford's statement to police, specifically those in which she said Logan told her: "I'm gonna kill [McAlister] because he just killed that man for no reason," and "[McAlister] turned around and just shot him for no reason." Acknowledging Logan's statements are not testimonial, and therefore their admission did not violate the confrontation clause (see Crawford, supra, 541 U.S. at p. 68 [where "nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law"]), McAlister argues they were improperly admitted under the hearsay exception for declarations against penal interest (Evid. Code § 1230) and their admission violated his rights to due process and a fundamentally fair trial. Not so.
The exception to the hearsay rule for declarations against penal interest provides: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, . . . so far subjected [the declarant] to the risk of . . . criminal liability . . . that a reasonable [person] in his [or her] position would not have made the statement unless he [or she] believed it to be true." (Evid. Code, § 1230.)
"The proponent of such evidence must show that the declarant is unavailable, that the declaration was against the declarant's penal interest when made and that the declaration was sufficiently reliable to warrant admission despite its hearsay character." (People v. Duarte (2000) 24 Cal.4th 603, 610-611 (Duarte).) Here, there is no dispute Logan was unavailable as a witness, having exercised his right not to testify. We must therefore determine whether or not the trial court abused its discretion in concluding Logan's statements to Ford were against his penal interest when made and sufficiently trustworthy to warrant admission. (People v. Brown (2003) 31 Cal.4th 518, 535-536 [applying abuse of discretion standard of review]; see also People v. Cortez (2016) 63 Cal.4th 101, 125, fn. 5.)
"There is no litmus test for the determination of whether a statement is trustworthy and falls within the declaration against interest exception. The trial court must look to the totality of the circumstances in which the statement was made, whether the declarant spoke from personal knowledge, the possible motivation of the declarant, what was actually said by the declarant and anything else relevant to the inquiry. [Citations.]" (People v. Greenberger (1997) 58 Cal.App.4th 298, 334 (Greenberger).) "Clearly the least reliable circumstance is one in which the declarant has been arrested and attempts to improve his [or her] situation with the police by deflecting criminal responsibility onto others. 'Once partners in crime recognize that the 'jig is up,' they tend to lose any identity of interest and immediately become antagonists, rather than accomplices.' [Citation.] However, the most reliable circumstance is one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures. [Citations.]" (Id. at p. 335.)
Similarly, " 'whether a statement is self-inculpatory or not can only be determined by viewing it in context.' [Citation.]" (Duarte, supra, 24 Cal.4th at p. 612.) While the exception for declarations against penal interest applies only to statements that are "specifically disserving of the declarant's penal interest," this does not mean "that a statement that incriminates the declarant and also inculpates [someone else] cannot be specifically disserving of the declarant's penal interest. Such a determination necessarily depends upon a careful analysis of what was said and the totality of the circumstances. [Citations.]" (Greenberger, supra, 58 Cal.App.4th at p. 335.)
In People v. Cervantes (2004) 118 Cal.App.4th 162 (Cervantes), three gang members assaulted and shot two men; one of the men died and the other sustained permanent injuries. (Id. at pp. 165-167.) During their joint trial, an out-of-court statement made by one of the defendants (Morales) to his friend (who was also a medical assistant) was admitted against his co-defendants (Cervantes and Martinez) under the hearsay exception for declarations against penal interest. The Court of Appeal rejected the claim of these co-defendants that the trial court erred in admitting the statements, explaining: "The evidence here showed Morales made the statement within 24 hours of the shooting to a lifelong friend from whom he sought medical treatment for injuries sustained in the commission of the offenses. Further, it is likely Morales wanted to have his wounds treated without going to the hospital. Regarding the content of the statement, Morales did attribute blame to Cervantes and Martinez but accepted for himself an active role in the crimes and described how he had directed the activities of Martinez. Thus, Morales's statement specifically was disserving of his penal interest because it subjected him to the risk of criminal liability to such an extent that a reasonable person in his position would not have made the statement unless he believed it to be true." (Id. at p. 175.)
While the Cervantes court incorrectly employed a de novo standard of review (118 Cal.App.4th 162), as stated in People v. Cortez, supra, 63 Cal.4th at page 125, footnote 5, because it upheld the trial court's decision under that heightened standard, the decision would also have been upheld under the more deferential abuse of discretion standard of review.
Here, too, Logan's statements were made to a friend in a noncoercive setting. And while the record does not reveal the duration or precise nature of Logan's friendship with Ford, we note Ford helped Logan cut off his dreads before he was taken into custody and later disposed of them along with the simunition rounds apparently taken during the robbery. Thus, just as Morales likely sought out medical treatment from his confidant to avoid having to go to the hospital, Logan likely sought out Ford's assistance in covering up his involvement in Schweiss's murder. Such a conversational setting "fosters uninhibited disclosures." (Greenberger, supra, 58 Cal.App.4th at p. 335.) Moreover, while the statement, "I'm gonna kill [McAlister] because he just killed that man for no reason," obviously places primary responsibility on McAlister, it simultaneously implies Logan's own involvement in the events giving rise to the murder, i.e., the robbery. This implication comes from the prefatory clause, "I'm gonna kill [McAlister] . . . ." If Logan was not complicit in the underlying robbery, it is unlikely he would have expressed a desire to "kill" McAlister for murdering Schweiss. In other words, McAlister's actions during the robbery impacted Logan only if Logan was McAlister's accomplice during that robbery. Like the court in Cervantes, supra, 118 Cal.App.4th 162, we conclude Logan's statements to Ford, made in the noncoercive setting of her apartment within a few hours of the murder, are inherently trustworthy and sufficiently subjected him to the risk of criminal liability to qualify as declarations against his penal interest.
McAlister's reliance on Duarte, supra, 24 Cal.4th 603 does not persuade us otherwise. That case involved statements made while in police custody, "the least reliable circumstance" a defendant's statements implicating a co-defendant could be made. (Greenberger, supra, 58 Cal.App.4th at p. 335.) As our Supreme Court stated in Duarte: "We have observed that the entire rationale underlying the against penal interest hearsay exception 'breaks down in a situation where a declarant in police custody seeks to exculpate himself [or herself] by implicating another suspect.' [Citation.]" (Duarte, supra, at p. 618.) Here, as we have already explained, Logan's statements to Ford occurred in "the most reliable circumstance," i.e., "one in which the conversation occurs between friends in a noncoercive setting that fosters uninhibited disclosures." (Greenberger, supra, at p. 335.)
We conclude the trial court did not abuse its discretion in admitting the challenged statements.
Again, McAlister attempts to bolster the argument he preserved for review with two he did not, i.e., admission of the evidence was also an abuse of discretion under Evidence Code section 352 and further violated his federal constitutional right to due process. Aside from being forfeited by McAlister's failure to object on these specific grounds in the trial court (Evid. Code, § 353), his three-sentence argument in support of these claims is wholly inadequate to constitute reasoned argument. The claims are therefore forfeited for that reason as well. (See In re Masoner (2009) 179 Cal.App.4th 1531, 1538-1539.) And because McAlister's trial counsel did not prevent appellate counsel from adequately briefing the issues on appeal, we decline his invitation to address these claims under the rubric of ineffective assistance of counsel. In other words, even had trial counsel adequately preserved the issues, they would still be forfeited by appellate counsel's failure to provide adequate briefing.
III
Admission of Evidence of Threats Made by McAlister's Friends and Family
McAlister also claims the trial court prejudicially erred and further violated his constitutional rights by admitting certain statements Ford made concerning McAlister's friends and family making threats. We disagree.
A.
Additional Background
During an interview with the district attorney's investigator, Ford said she was afraid of McAlister because "[h]is family, his brothers, his friends, [his girlfriend's] big brother, . . . they all came over there and was threatening people."
McAlister moved in limine to exclude any evidence of these threats, arguing Ford had "no basis to say" the threats were made by McAlister's friends and family because she "didn't know who they were." The prosecutor argued she was not offering the threats to prove Ford was in fact threatened by McAlister's friends and family, but instead to bolster her credibility by providing an explanation for why she may not have fully cooperated with law enforcement, i.e., her belief (whether true or not) McAlister's friends and family had made threats.
The trial court ruled: "To the extent that it's her belief that she was threatened by [McAlister's] family, it does seem to me that it's relevant to her state of mind and it is very probative. [¶] I don't think that the prejudicial effect of that outweighs [the] probative value of her being -- of the jury being able to consider that as -- as to her demeanor when she testifies or the quality of what it is that she's testifying to." The court also pointed out McAlister would be able to object on foundation grounds if the prosecutor failed to connect the threats by McAlister's friends and family, "in her mind anyway."
During Ford's testimony, in response to leading questions from the prosecutor, she admitted she was placed in a witness protection program because of statements she provided to law enforcement officers and she was "fearful that something was going to happen to [her]." Later in the direct examination, Ford said she was not concerned about being prosecuted for destroying evidence, but was more concerned about "protecting [her] family" from "being involved in the situation." The prosecutor followed up by eliciting testimony that she was granted immunity from prosecution for destroying evidence and asked whether there was anything else she was concerned about with respect to her testifying in this case. Ford answered: "No." The prosecutor then asked whether she had been threatened. Ford answered: "Not really threatened but I -- not verbally threatened like, no." The prosecutor followed up: "Wasn't there talk going around the apartment complex after this happened that whoever's talking too much is going to get killed?" Ford answered: "I mean, yeah. But that wasn't like directly said to me." She then admitted telling the district attorney's investigator these threats were part of the reason she did not want to provide a statement regarding what happened the night of the murder.
Later in the trial, the prosecution sought to impeach certain portions of Ford's testimony with prior inconsistent statements she made to the investigator. During a discussion regarding the admissibility of these statements, McAlister again objected to admission of the specific statement about threats she believed were made by his friends and family, arguing, "there is no foundation even in this statement for her drawing the conclusion it was his family that did it." Overruling the objection, the trial court explained: "It doesn't matter if it's his family. It matters from her point of view that she felt concern for her safety. [It h]as to do with her state of mind and the testimony. So it's admissible on that ground."
During the investigator's testimony, the prosecution played a recording of the interview, including the statement regarding threats and her fear of McAlister. On cross-examination, the investigator testified Ford stated she believed the people who made the threats were members of McAlister's family but did not actually know who they were. The trial court then provided the jury with the following limiting instruction: "So when the testimony you heard about [Ford] indicating that family members of [McAlister] had threatened her, that -- you cannot use that evidence against [McAlister] as evidence in any way of his guilt. That can only be used in assessing her state of mind as a witness in this case."
B.
Analysis
McAlister argues the challenged evidence should have been excluded as irrelevant and unduly prejudicial. We conclude the trial court did not abuse its discretion in admitting the evidence.
Evidence Code section 350 provides: "No evidence is admissible except relevant evidence." Evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) However, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) This provision "permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption," but also "requires that the danger of these evils substantially outweigh the probative value of the evidence." (People v. Lavergne (1971) 4 Cal.3d 735, 744; People v. Tran (2011) 51 Cal.4th 1040, 1047.)
Here, as the trial court properly ruled, the evidence was relevant to the issue of Ford's credibility as a witness. Under Evidence Code section 780, the "jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his [or her] testimony at the hearing . . . ." Ford's fear of McAlister based on her belief his friends and family were threatening people at the apartment complex provided her with a motive to minimize what she heard him say in her apartment following the murder, which she did during her testimony. This is precisely why her prior inconsistent statements concerning that conversation were admitted into evidence for their truth. In assessing whether Ford's testimony, her prior statements to the investigator, or neither, was credible, the jury was entitled to know of the potential existence of such a motive. Nor was the probative value of this evidence substantially outweighed by the danger of undue prejudice, especially in light of the limiting instruction directing the jury not to consider the claimed threats as evidence of McAlister's guilt, but only in assessing Ford's state of mind. Indeed, the threats only implicated McAlister if they were in fact made by his friends and family, and the investigator acknowledged Ford did not know for sure that was the case. Thus, we believe the jury would have been able to follow the instruction to use the evidence of Ford's fear of McAlister in assessing her credibility as a witness and disregard it as evidence of his guilt.
Finally, "in the absence of any error under Evidence Code section 352, we also reject [McAlister's] various constitutional claims. The routine and proper application of state evidentiary law does not impinge on a defendant's due process rights." (People v. Riccardi (2012) 54 Cal.4th 758, 809, abrogated on another point by People v. Rangel (2016) 62 Cal.4th 1192.)
We conclude the trial court did not abuse its discretion in admitting the challenged evidence.
IV
Admission of Firearms and Related Evidence
McAlister further asserts the trial court prejudicially erred and violated his constitutional rights by admitting into evidence various firearms, ammunition, and a camouflage vest recovered from the apartment in which McAlister stayed on the night of the murder. He is mistaken.
A.
Additional Background
During the prosecution's rebuttal case, the jury heard testimony that the search of apartment 26 uncovered more firearms and related evidence than the box of 7.62x39mm ammunition and loaded .45-caliber handgun we mentioned in our factual recitation earlier in this opinion. Police also found six boxes of .22-caliber ammunition, a .22-caliber rifle, a camouflage vest, a loaded .44-caliber revolver, a loaded shotgun, shotgun ammunition, and a box of ammunition of an unspecified caliber.
McAlister moved in limine to exclude this evidence. The prosecutor acknowledged she did not believe the evidence was relevant, with the exception of the camouflage vest she characterized as a "bulletproof vest." Her theory of relevance with respect to the vest was that it was found in the same location as the box of 7.62x39mm ammunition, inside the bottom of a chair that she argued provided circumstantial support to "the inference that [McAlister] was not just going to buy or conduct a marijuana transaction." In response, McAlister's attorney argued the vest was "just as irrelevant as the rest of the stuff" because "there [is] no evidence from any witness that will support the argument that anybody was wearing a bulletproof vest during the commission of the crime." Logan's attorney then added Evidence Code section 352 as an additional ground for objection, arguing the vest had "minimal probative value . . . compared to the prejudicial effect" that he described as "pretty significant." The trial court ruled evidence of the camouflage vest would be excluded as not relevant, and even if relevant, "there is a lot of prejudice . . . and overall minimal probative value at this point."
During trial, after Jordan testified he saw McAlister with a semiautomatic handgun immediately after the shooting, it was McAlister who sought to admit evidence of the .45-caliber handgun found in apartment 26. The prosecutor objected, arguing that handgun did not match Jordan's description of the gun carried by McAlister. She also indicated that depending on the remainder of the testimony, she might seek to introduce the rest of the firearms and related evidence at a later point in the trial. The trial court allowed the requested testimony regarding the .45-caliber handgun found in Jordan's apartment. During McAlister's testimony, he claimed the .45-caliber handgun found in the apartment was the gun he was carrying the night of the murder and denied knowing anything about the 7.62x39mm ammunition also found therein. McAlister testified he "didn't know everything that was in there because . . . a lot of people come over there and hang out there," but nothing he saw in the apartment "was of concern" to him. He also claimed he allowed the man he referred to as Little Bro watch the apartment earlier in the day.
The prosecutor asked the trial court to "revisit [its] in limine ruling regarding the other firearms and ammunition found in apartment 26" during a break in McAlister's testimony. Based on the multitude of firearms and ammunition found in that apartment, the prosecutor argued McAlister's testimony was providing the jury with a false impression he did not know of their presence. McAlister's attorney objected on relevance and improper character evidence grounds.
The trial court overruled the objection, explaining: "I don't think it's character evidence at all. You've got a person who's up here testifying that, you know, he carried a .45 but he didn't know anything else about this other stuff. . . . [¶] And what he said up to this point is, my goodness, I mean he's saying that another man shot him and he's saying what really, you know, seems to strain credulity that he -- in this particular apartment complex the apartment doors are just wide opened [and] you can come and go as you please. [¶] But then something -- this other guy lives there [and] lets him come in. He had Little Bro watching over his stuff. Little Bro is who apparently is about to buy drugs from him. He's going to then -- he's going to let what really would be thousands of dollars worth of items in that -- in his apartment. Those guns even on the street are going to bring in a huge price; right. [¶] I mean every handgun there is going to be a lot of money, you know. [¶] And so he's going to let all that . . . just sitting out basically -- not exactly hidden away too carefully; right. We're talking about a closet. One in the backpack. [¶] It doesn't make any sense that he would just leave all that sitting there and let some guy he barely knows up there guarding his apartment. [¶] These have a street value that are far more than the . . . eight ball he's got of cocaine. It doesn't make any sense. And so I think it is fair. [¶] Yeah, it's prejudicial to him for sure because it's his apartment, but it's very probative now."
Before McAlister's testimony resumed, the trial court admonished the jury: "There's going to be some questioning now of [McAlister] about some other items that were inside apartment number 26, that is, various ammunition and guns. [¶] All right. This is being allowed in to -- for you to assess [McAlister's] credibility. It is not character evidence. It cannot be considered as such against him. [¶] And it cannot be considered against either [Stewart] or [Logan] for any purpose." The prosecutor then cross-examined McAlister regarding the various guns and ammunition found in the apartment and his decision to allow Little Bro to watch over these items. Thereafter, during the prosecution's rebuttal case, the jury heard more specific testimony concerning the guns, ammunition, and camouflage vest found in the apartment.
B.
Analysis
McAlister argues the firearm-related evidence, other than the .45-caliber handgun and 7.62x39mm ammunition, was irrelevant and improperly admitted under Evidence Code sections 1101 and 352. He further argues admission of this evidence violated his constitutional right to a fair trial. We disagree.
With certain exceptions, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (Evid. Code, § 1101, subd. (a).) Subdivision (b) of this section provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than his or her disposition to commit such an act." (Id., subd. (b).) Subdivision (c) further provides: "Nothing in this section affects the admissibility of evidence offered to support or attack the credibility of a witness." (Id., subd. (c).) At the same time, evidence of character traits "other than honesty or veracity, or their opposites, is inadmissible to attack or support the credibility of a witness." (Evid. Code, § 786.)
Thus, if the firearms and related evidence was offered, as McAlister suggests, to prove he was a "hard-core criminal," and therefore "the sort of guy who would shoot someone for no reason . . . or at least the sort of guy [who would become] involved in a robbery," his argument would have merit. However, this evidence was not admitted to prove McAlister's character, and the jury was so instructed. Instead, it was admitted to impeach his credibility as a witness and was relevant for that purpose because it tended to cast doubt on his testimony he allowed Little Bro, someone he barely knew, to watch over Jordan's apartment and nothing in the apartment was of concern to him. Accordingly, Evidence Code section 1101 was not violated by the admission of this evidence.
Turning to Evidence Code section 352, again, this provision "permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption," but "requires that the danger of these evils substantially outweigh the probative value of the evidence." (People v. Lavergne, supra, 4 Cal.3d at p. 744.) Here, while the challenged evidence admittedly had no probative value before McAlister testified, it became highly probative on the issue of his credibility once he did so. And because McAlister's defense relied heavily on his testimony, the evidence was undoubtedly damaging to his case. However, as our Supreme Court has explained: " 'The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." ' [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638.) The fact Jordan's apartment contained an assortment of firearms, ammunition, and a camouflage vest would not have evoked any more of an emotional bias against McAlister than his own testimony he was armed with a loaded .45-caliber handgun while selling cocaine in the neighborhood, and was far less damaging than Ford's testimony he was laughing while telling June he got "two zips of weed" and then "turned around and was like pop, pop," or his admission to Jordan he "downed him" because, as McAlister put it: "We ain't playing."
Nor did presentation of the challenged evidence consume an undue amount of time or create a danger of confusing the issues or misleading the jury. Indeed, allowing McAlister's testimony to go unimpeached would have been more misleading to the jury than allowing them a more complete picture of the apartment he claimed he allowed Little Bro to watch on the day of the murder.
Finally, for the same reason we rejected McAlister's due process argument with respect to his previous evidentiary challenge, we also reject it with respect to this one. "The routine and proper application of state evidentiary law does not impinge on a defendant's due process rights." (People v. Riccardi, supra, 54 Cal.4th at p. 809.)
We conclude the trial court did not abuse its discretion in admitting the challenged evidence.
V
Admission of Menna's 911 Call
Both defendants contend the trial court prejudicially erred and violated their constitutional rights by admitting into evidence Menna's 911 call, in which she stated she witnessed a group of black males "rob" a white male and then shoot him afterwards. Specifically, McAlister argues (1) admission of this statement violated his Sixth Amendment right of confrontation because it amounted to testimonial hearsay and he had no opportunity to cross-examine Menna, and (2) the statement should also have been excluded as "improper lay opinion or otherwise prejudicial or misleading under Evidence Code section 352." Logan joins in these arguments. We reject them.
A.
Confrontation Claim
As previously explained, in Crawford, supra, 541 U.S. 36, the United States Supreme Court held the confrontation clause (1) applies only to out-of-court statements that are "testimonial," i.e., offering "testimony" against a defendant, but (2) strictly requires the exclusion of such statements, despite any applicable hearsay exception, unless the declarant is unavailable and the defendant has had a prior opportunity for cross-examination. (Id. at pp. 51-54, 59.)
In Davis, supra, 547 U.S. 813, the high court applied Crawford to the context of a 911 call. Davis holds that, in that context, "statements elicited by law enforcement officials are not testimonial if the primary purpose in giving and receiving them is to deal with a contemporaneous emergency, rather than to produce evidence about past events for possible use at a criminal trial." (People v. Cage (2007) 40 Cal.4th 965, 984.) This is because, in such a situation, the statements are not "out-of-court analogs, in purpose and form, of the testimony given by witnesses at trial." (Ibid.) The primary purpose a 911 caller's statements are given and received "is to be determined 'objectively,' considering all the circumstances that might reasonably bear on the intent of the participants in the conversation." (Ibid.) However, as our colleagues at the Fourth Appellate District explained in People v. Gann (2011) 193 Cal.App.4th 994 (Gann), "a 911 call made during the course of an emergency situation is ordinarily made for the primary nontestimonial purpose of alerting the police about the situation and to provide information germane to dealing with the emergency." (Id. at p. 1008; see also People v. Banos (2009) 178 Cal.App.4th 483, 492-493 [911 statements not testimonial because primary purpose of declarant was "to gain police protection"]; People v. Brenn (2007) 152 Cal.App.4th 166, 176 [911 statements "not the functional equivalents of trial testimony"].)
Here, we also conclude Menna's statements to the 911 dispatcher were not testimonial under Crawford, supra, 541 U.S. 36. As in Gann, supra, 193 Cal.App.4th 944, "[t]he dispatcher was primarily concerned with what was happening at the moment, in order to obtain information that would assist responding officers in rendering aid to the victim[] and finding the escaping perpetrator[s]—not to secure a conviction in a court trial. The information given was not formal or structured. Because the statements that [Menna] made to the 911 operator were not testimonial in nature, they were not subject to the requirements of Crawford." (Gann at p. 1008.)
B.
State Law Claims
We now turn to the state law claims raised by defendants, i.e., improper lay opinion and Evidence Code section 352.
Evidence Code section 800 provides: "If a witness is not testifying as an expert, his [or her] testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his [or her] testimony." This provision "merely requires that [lay] witnesses express themselves at the lowest possible level of abstraction. [Citation.] Whenever feasible 'concluding' should be left to the jury; however, when the details observed . . . are 'too complex or too subtle' for concrete description by the witness, he [or she] may state his [or her] general impression." (People v. Hurlic (1971) 14 Cal.App.3d 122, 127; see also People v. Melton (1988) 44 Cal.3d 713, 744 [lay witness permitted to express an opinion based on his or her perception "where the concrete observations on which the opinion is based cannot otherwise be conveyed"].) In such a situation, the "impression" or "opinion" expressed is merely a shorthand way of conveying what was observed and does not amount to improper lay opinion.
For example, in People v. Smith (2015) 61 Cal.4th 18 (Smith), a murder case in which a torture special circumstance allegation was found to be true, the trial court admitted into evidence the following out-of-court statement made by the defendant's sister and coparticipant in the crime: "That was before . . . my brother started torturing her." (Id. at p. 49.) Agreeing with the lower court's assessment that "no improper opinion testimony [was] offered" because the sister "use[d] the word ['torturing'] in a purely descriptive sense to explain what [she] saw," our Supreme Court explained the sister's statement "did not include an opinion about defendant's commission of a special circumstance. It was simply part of her narrative. A witness who uses the word 'torture' in describing a sequence of events is no more testifying 'in the form of an opinion' (Evid. Code, § 800) than a witness describing a 'robbery.' " (Smith, supra, at p. 49, citing People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76-77 [one of the defendants testified and answered in the affirmative to various questions containing the word "robbery"; no improper opinion was elicited].)
Here, Menna used the word "rob" to describe what she witnessed to the 911 operator. She was not providing her opinion a robbery, in the legal sense of the word, had in fact been committed. Defendants' assertion of improper lay opinion therefore fails. Nor did her use of the word create a danger of misleading the jury or unduly prejudicing defendants within the meaning of Evidence Code section 352. And, once again, "routine and proper application of state evidentiary law does not impinge on a defendant's due process rights." (People v. Riccardi, supra, 54 Cal.4th at p. 809.)
We conclude the trial court did not abuse its discretion in admitting the challenged evidence.
VI
Exclusion of Evidence of Cocaine in Schweiss's System
Defendants also claim the trial court prejudicially erred and further violated their constitutional rights by excluding evidence of a toxicology report showing Schweiss had a small amount of a cocaine metabolite in his system when he died. The evidence was offered to corroborate McAlister's testimony that Schweiss came to the apartment complex to purchase cocaine from him. It was excluded by the trial court as not relevant and, even if relevant, its marginal probative value was substantially outweighed by the danger of undue prejudice and confusing the issues. Exclusion of the evidence was not an abuse of discretion.
As previously explained, only relevant evidence is admissible (Evid. Code, § 350), i.e., evidence that has a "tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) And, "[e]xcept as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) Defendants argue the evidence of cocaine metabolite in Schweiss's system "was relevant circumstantial evidence he could be a customer seeking to buy this drug, not just a seller of marijuana," a fact that was of consequence to the jury's determination of defendants' guilt because it tended to "corroborate [McAlister's] third-party culpability defense" and "raise reasonable doubt [either defendant] was involved in a marijuana-robbery/transaction of any kind." (Italics added.)
Because Logan joins in McAlister's arguments on this issue, we edit arguments contained in McAlister's opening brief only to the extent necessary to include Logan's joinder therein.
Assuming the proffered evidence was marginally relevant for these purposes, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) Here, the proffered evidence merely established cocaine was a drug Schweiss consumed at least once recently enough for the metabolite to have remained in his system, and therefore he might have wanted to purchase more of the substance. Then again, he might not have. Thus, while the proffered evidence was consistent with McAlister's account of events, it did not actually corroborate his testimony in any way. Moreover, McAlister's own framing of the argument (in which Logan joins) acknowledges even if Schweiss was a cocaine customer, he was also a marijuana seller. We have no reason to believe it would not have been just as easy to set up a marijuana robbery by luring Schweiss into the parking lot with the promise of selling him cocaine as with the promise of buying marijuana. The probative value of the proffered evidence was therefore marginal at best. At the same time, Evidence Code section 352's statutory counterweights do not weigh heavily in the other direction either. However, given the extremely low probative value of the evidence, we believe even a small danger of undue prejudice or confusing the issues would be sufficient in this case to substantially outweigh the probative value. And here, there is a small risk the jury would have confused or conflated the subsidiary point of why Schweiss came to the parking lot with the principal issue of whether a robbery occurred once he got there.
Finally, while Evidence Code section 352 "must yield to a defendant's due process right to a fair trial and to the right to present all relevant evidence of significant probative value to his or her defense" (People v. Cunningham (2001) 25 Cal.4th 926, 998-999), "excluding defense evidence on a minor or subsidiary point does not impair an accused's due process right to present a defense." (People v. Fudge (1994) 7 Cal.4th 1075, 1103; People v. Sedillo (2015) 235 Cal.App.4th 1037, 1063-1064.) As we have explained, the evidence of cocaine metabolite in Schweiss's system the night of the murder did not possess significant probative value. Thus, defendants' due process rights were not violated.
We conclude the trial court did not abuse its discretion in excluding the toxicology report.
CLAIMS OF INSTRUCTIONAL ERROR
VII
Absence of Voluntary Manslaughter Instructions
Defendants claim the trial court prejudicially erred and violated their constitutional rights by declining to provide the jury with instructions on heat of passion voluntary manslaughter. They are mistaken.
In a criminal case, the trial court "must instruct on lesser included offenses, even in the absence of a request, whenever there is substantial evidence raising a question as to whether all of the elements of the charged offense are present. [Citations.] 'Substantial evidence is evidence sufficient to "deserve consideration by the jury," that is, evidence that a reasonable jury could find persuasive.' [Citation.]" (People v. Lewis (2001) 25 Cal.4th 610, 645; People v. Souza (2012) 54 Cal.4th 90, 114.) "On appeal, we review independently whether the trial court erred in failing to instruct on a lesser included offense." (People v. Booker (2011) 51 Cal.4th 141, 181.)
Whereas murder is the unlawful killing of a human being with malice (§ 187, subd. (a)), "[m]anslaughter is the unlawful killing of a human being without malice." (§ 192.) "A defendant commits voluntary manslaughter when a homicide that is committed either with intent to kill or with conscious disregard for life—and therefore would normally constitute murder—is nevertheless reduced or mitigated to manslaughter." (People v. Bryant (2013) 56 Cal.4th 959, 968.) "Two factors may preclude the formation of malice and reduce murder to voluntary manslaughter: heat of passion and unreasonable self-defense." (People v. Elmore (2014) 59 Cal.4th 121, 133.)
The mitigating factor distinguishing the "heat of passion" form of voluntary manslaughter from murder is provocation. (People v. Avila (2009) 46 Cal.4th 680, 705.) "Provocation has this effect because of the words of section 192 itself, which specify that an unlawful killing that lacks malice because committed 'upon a sudden quarrel or heat of passion' is voluntary manslaughter." (People v. Rios (2000) 23 Cal.4th 450, 461.) "The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. [Citations.] 'Heat of passion arises when "at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment." ' [Citation.]" (People v. Lee (1999) 20 Cal.4th 47, 59.)
Defendants base their assertion that heat of passion voluntary manslaughter instructions were required on evidence the confrontation in the parking lot included several participants and Schweiss, who was apparently struck in the nose at one point, also threw a punch at one of his assailants before he was shot. McAlister describes the confrontation as "a clouded and at times crowded melee." Logan calls it "a large and chaotic commotion and fight." We first note these descriptions are at odds with McAlister's own testimony (self-serving though it may have been) that the confrontation was between Little Bro and Schweiss, and he tried to help Schweiss escape. But McAlister's testimony, if believed, would have exonerated him completely (and Logan too, since there was no evidence Logan aided and abetted the murder McAlister claimed Little Bro committed), and therefore cannot serve as the basis for voluntary manslaughter instructions.
Other than McAlister's testimony, there is no evidentiary support for a conclusion the confrontation witnessed by Burnett and Menna, and caught on surveillance video, was anything other than a robbery. An unlawful killing that occurs during commission of such a crime is not voluntary manslaughter. This is so even if the victim throws a punch in resistance. " '[P]redictable conduct by a resisting victim' of a felony cannot 'constitute the kind of provocation sufficient to reduce a murder charge to voluntary manslaughter. . . .' [Citation.]" (People v. Balderas (1985) 41 Cal.3d 144, 197.) Moreover, even if the evidence supported a conclusion this was not a robbery, it was at the very least a one-sided confrontation initiated by defendants, and the same result would obtain. "[P]rovocation cannot be based on events for which the defendant is culpably responsible." (People v. Oropeza (2007) 151 Cal.App.4th 73, 83.) " 'If the defendant causes the victim to commit an act which the defendant could claim provoked him [or her], he [or she] cannot kill the victim and claim that he [or she] was provoked. In such case, he [or she] is deemed to have acted with malice and would be guilty of murder.' [Citation.]" (People v. Johnston (2003) 113 Cal.App.4th 1299, 1312.)
The trial court did not err in declining to provide the jury with voluntary manslaughter instructions.
VIII
Instruction Regarding Unanimity as to the Theory of Murder
Defendants also contend the trial court prejudicially erred and violated their constitutional rights by instructing the jury it need not unanimously agree as to which theory of murder applied in this case. Not so.
The jury was instructed, pursuant to CALCRIM No. 521, defendants were each charged with first degree murder under two theories, i.e., (1) premeditated murder and (2) felony murder. The instruction continued: "You may not find any defendant guilty of first degree murder unless all of you agree that the People have proved that the defendant committed murder. But all of you do not need to agree on the same theory." (Italics added.) This was an accurate statement of the law, and defendants do not claim otherwise. As our Supreme Court has repeatedly explained: "Premeditated murder and felony murder are not distinct crimes; rather, they are alternative theories of liability, and jurors need not unanimously agree on a particular theory of liability in order to reach a unanimous verdict." (People v. Sattiewhite (2014) 59 Cal.4th 446, 479; People v. Benavides (2005) 35 Cal.4th 69, 101.)
After this instruction was given, the jury was further instructed with former CALCRIM No. 548 (Aug. 2014 Supp.) that informed the jury: "The defendants have been prosecuted for murder under two theories: (1) malice aforethought, and (2) felony murder. [¶] Each theory of murder has different elements, and I have instructed you on both. [¶] You may not find a defendant guilty of murder unless you all agree that the People have proved that the defendant committed murder under at least one of these theories. You do not all need to agree on the same theory." (Italics added.) The jury was not instructed with a bracketed portion of CALCRIM No. 548 (added in the February 2016 edition of the instruction) that would have added, "but you must unanimously agree whether the murder is in the first or second degree." (CALCRIM No. 548, Feb. 2016 ed.) We first note this bracketed portion was not included in the instruction at the time of trial. However, as defendants correctly observe, the jury was required to unanimously agree as to the degree of murder and should have been so instructed.
Nevertheless, we conclude the jury would have understood this to be a requirement from the instruction that followed immediately thereafter, CALCRIM No. 640, regarding their deliberations and completion of the verdict forms when first degree murder is charged and verdict forms for second degree murder are also provided. Pursuant to this instruction, the jury was instructed: "You may consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty or not guilty of second degree murder only if all of you have found a defendant not guilty of first degree murder. [¶] As with all of the charges in this case, to return a verdict of guilty or not guilty on a count, you must all agree on that decision." The instruction then more specifically informed the jury regarding how to fill out the verdict forms. We conclude the jury would have understood from this instruction that it was required to unanimously agree as to the degree of murder. " 'A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant. [Citations.]' [Citation.] 'We credit jurors with intelligence and common sense [citation] and do not assume that these virtues will abandon them when presented with a court's instructions. [Citations.]' [Citation.] ' "[T]he correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction." [Citations.]' [Citation.]" (People v. Sanchez (2013) 221 Cal.App.4th 1012, 1024.)
Here, based on all the instructions, the jury would have known to determine with respect to each defendant whether that defendant committed murder (either malice murder or felony murder), and if they unanimously agreed defendant committed murder (without a unanimity requirement as to the theory), they would then determine whether the murder was first degree murder (either premeditated murder or felony murder), and if they unanimously agreed the murder was of the first degree (again without a unanimity requirement as to the theory), they would not reach second degree murder, and only if they unanimously agreed the defendant was not guilty of first degree murder would they reach second degree murder and be required to unanimously agree as to whether the defendant was guilty of that lesser crime. This is all the unanimity that was required.
Nevertheless, defendants argue this case involves more than multiple theories supporting liability for murder, relying on cases holding unanimity is required where there are multiple criminal acts that could have constituted the charged offense. (See People v. Dellinger (1984) 163 Cal.App.3d 284, 300-302 [dispute over which act or acts caused the victim's death]; People v. Madden (1981) 116 Cal.App.3d 212, 215-219 [several sexual acts could have constituted the charged sexual offense].) These cases are inapposite. Here, there is no dispute over how Schweiss was murdered. He was shot in the abdomen. Nor were there several discrete criminal acts that could have constituted the charged murder. There was only one. The dispute in this case was over who pulled the trigger, whether the murder occurred during the commission of a robbery, and whether the defendant who did not pull the trigger nevertheless aided and abetted in the commission of that robbery or in the murder that resulted therefrom.
As our Supreme Court explained in People v. Jenkins (2000) 22 Cal.4th 900: " 'It is settled that as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of murder as that offense is defined by [the] statute, it need not decide unanimously by which theory he [or she] is guilty. [Citations.] More specifically, the jury need not decide unanimously whether defendant was guilty as the aider and abettor or as the direct perpetrator. . . . [¶] . . . [¶] Not only is there no unanimity requirement as to the theory of guilt, the individual jurors themselves need not choose among the theories, so long as each is convinced of guilt. Sometimes, . . . the jury simply cannot decide beyond a reasonable doubt exactly who did what. There may be a reasonable doubt that the defendant was the direct perpetrator, and a similar doubt that he [or she] was the aider and abettor, but no such doubt that he [or she] was one or the other.' [Citations.] Defendant contends that different facts would support aiding and abetting liability and liability as a direct perpetrator, but, as we have explained, the jury need not unanimously agree 'on the precise factual details of how a killing under one or the other theory occurred in order to convict defendant of first degree murder.' [Citation.] Naturally, in order to return a guilty verdict, the jury must agree unanimously that each element of the charged crime has been proved, but the factors that establish aiding and abetting liability are not included as elements of the crime of murder. [Citation.]" (Id. at pp. 1024-1025.) The same reasoning applies here.
Nor are we persuaded by defendants' reliance on People v. Sanchez, supra, 221 Cal.App.4th 1012, a case in which the different theories of liability for murder supported "different degrees of murder" and the trial court provided the jury with a response to a jury question that "undermined the notion of unanimity as to degree." (Id. at p. 1025.) As the court explained: "There is no way to determine, on the record presented, whether the jury followed the instruction during deliberations stating unanimity was not required, or the earlier instruction pursuant to CALCRIM No. 640, which set forth a different approach to the verdict forms on both degrees of murder." (Ibid.) Here, both theories of liability relied on by the prosecution at trial supported first degree murder. Nor did the trial court undermine CALCRIM No. 640 during the jury's deliberations, but instead highlighted the need for unanimity as to degree by referring the jury to this instruction in response to jury questions regarding whether they could find either defendant guilty of second degree murder even if they could not agree as to first degree murder.
We conclude the challenged instruction was properly given.
IX
Logan's Remaining Instructional Error Claims
Logan raises two additional and related claims of instructional error: the trial court prejudicially erred and violated his constitutional rights by (a) providing the jury with incorrect and misleading instructions on accomplice liability, and (b) failing to clarify such liability in response to certain jury questions. We address and reject each of these claims below.
McAlister purports to join in these claims, but does not offer any argument as to how they would apply to him. We therefore treat the claims as forfeited as to McAlister. (See People v. Bryant (2014) 60 Cal.4th 335, 363.)
A.
Aiding and Abetting Instructions
Logan argues the aiding and abetting instructions "led the jury to believe it could convict [him] of aiding and abetting McAlister in committing murder based on an implied malice theory." While true, as we have already explained in detail during our discussion of the sufficiency of the evidence, such a belief is in accord with the law. To briefly summarize, " 'once it is proved that "the principal has caused an actus reus, the liability of each of the secondary parties should be assessed according to his [or her] own mens rea." That is, although joint participants in a crime are tied to a "single and common actus reus," "the individual mentes reae or levels of guilt of the joint participants are permitted to float free and are not tied to each other in any way. . . ." ' [Citation.]" (People v. McCoy, supra, 25 Cal.4th at pp. 1118-1119, internal italics omitted.) Thus, regardless of whether McAlister committed a premeditated first degree murder, if the jury was not convinced Logan shared the requisite mens rea for first degree murder, or even that Logan intended to kill Schweiss, they could nevertheless find him guilty of second degree murder as an aider and abettor if he intended to and did in fact assist McAlister in performing "a willful act, the natural and probable consequences of which [were] dangerous to human life" and also "conscious[ly] disregard[ed] . . . that danger." (People v. Elmore, supra, 59 Cal.4th at p. 133). In other words, and contrary to Logan's argument on appeal, he need not have harbored an express intent to kill to be convicted of second degree murder as an aider and abettor.
We conclude the pattern jury instructions given to the jury in this case properly defined the elements of aiding and abetting liability. Logan's claim of instructional error therefore fails and his constitutional rights were not violated.
B.
Response to Jury Questions
Logan also argues the trial court should have clarified "the intent necessary to find the non-shooter guilty as an aider and abettor" in response to certain jury questions. While his briefing does not clearly state which questions should have elicited such a clarification, we note the jury did ask whether "someone who did not shoot the victim [can] be found guilty of 2nd degree murder," to which the trial court answered: "It is up to the jury to decide what the facts are, but under the law of aiding and abetting, a defendant who did not personally shoot the victim can be found guilty of second degree murder." Logan's trial counsel agreed this was an accurate response. As indicated previously in this opinion, other jury questions asked what to do if the jury could not agree as to first degree murder, in response to which the trial court properly referred the jury to CALCRIM No. 640 and also briefly summarized the procedure under that instruction. No objection was made to any of these responses. Nor did Logan's trial counsel specifically ask the trial court to clarify the aiding and abetting instructions in response to any jury question. His appellate argument that the trial court erred in failing to provide such clarification is therefore forfeited. (See People v. Dykes (2009) 46 Cal.4th 731, 802 [where trial court responds to jury question was "a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal"].)
Anticipating such a conclusion, Logan argues his trial counsel provided constitutionally deficient assistance by failing to request the clarification. However, because the aiding and abetting instructions were accurate statements of the law, as we have already explained, and because the "clarification" Logan now argues should have been provided would have misled the jury into believing it had to find he possessed an explicit intent to kill in order to be convicted of second degree murder as an aider and abettor, the trial court would have properly declined to provide such a response. For this reason, Logan was not prejudiced and his claim of ineffective assistance of counsel therefore fails.
REMAINING CONTENTIONS
XI
Prosecutorial Misconduct
Nor does McAlister's claim of prosecutorial misconduct have merit.
As previously mentioned, Jordan testified that when he saw McAlister walking from the direction of the parking lot immediately after the shooting, McAlister said, "We ain't playing," and, "I downed him." During her closing argument to the jury, after describing Schweiss's injuries, the prosecutor stated: "He got downed all right. Just like McAlister said he did." During a break, McAlister moved for a mistrial arguing the prosecutor engaged in misconduct by arguing McAlister said he "downed" Schweiss. Acknowledging Jordan testified McAlister made such a statement to him, McAlister's trial counsel argued Jordan "got it confused in court" and previously told the district attorney's investigator it was his brother who had told him McAlister made the "I downed him" statement. The trial court denied the mistrial motion, explaining: "I don't find there's any prosecutorial misconduct. She was simply repeating what a witness stated here from the witness stand as I recall it." The prosecutor then continued her closing argument, arguing McAlister's admission to Jordan proved beyond a reasonable doubt he was guilty of first degree murder.
"Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such '"unfairness as to make the resulting conviction a denial of due process."' [Citation.] By contrast, our state law requires reversal when a prosecutor uses 'deceptive or reprehensible methods to persuade either the court or the jury' [citation] and '"it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct"' [citation]. To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and ask the trial court to admonish the jury to disregard the prosecutor's improper remarks or conduct, unless an admonition would not have cured the harm." (People v. Davis (2009) 46 Cal.4th 539, 612; People v. Gamache (2010) 48 Cal.4th 347, 370-371.) "A claim will not be deemed forfeited due to the failure to object and to request an admonition only when 'an objection would have been futile or an admonition ineffective.' [Citation.]" (People v. Thomas (2012) 54 Cal.4th 908, 937.)
Here, McAlister's claim of prosecutorial misconduct is arguably forfeited by his failure to object when the claimed misconduct occurred, rather than during a break in the prosecutor's argument, and by his failure to ask the trial court to instruct the jury to disregard the remarks claimed to constitute the misconduct. However, even assuming the issue is preserved by the belated objection, and requesting a curative admonition was rendered futile by the trial court's ruling that no prosecutorial misconduct occurred, we agree with the trial court's assessment. The prosecutor simply repeated to the jury what Jordan said under oath on the witness stand. While McAlister could have impeached this testimony with a prior inconsistent statement made to the investigator, the jury was entitled to credit Jordan's testimony, and the prosecutor was entitled to remind the jury what that testimony was during her closing argument. Unlike the cases cited by McAlister in his briefing on appeal (e.g., United States v. Blueford (9th Cir. 2002) 312 F.3d 962, 968 ["improper for the government to propound inferences that it knows to be false, or has very strong reason to doubt"]; In re Sakarias (2005) 35 Cal.4th 140, 155-156 ["fundamental fairness did not permit the People, without a good faith justification, to attribute to two defendants, in separate trials, a criminal act only one defendant could have committed"]), the fact Jordan may have made a prior statement that was inconsistent with his trial testimony did not mean the prosecutor either knew or had strong reason to believe his trial testimony was false.
For the same reasons, we further reject McAlister's related argument the trial court should have granted his motion for mistrial based on this asserted prosecutorial misconduct.
XII
Cumulative Prejudice
Finally, both defendants contend the cumulative effect of the foregoing assertions of error requires reversal of their convictions. We have rejected each of Logan's claims of error. We have also concluded the only meritorious claim of error raised by McAlister, i.e., the confrontation violation arising from the admission of Logan's police statements, was harmless beyond a reasonable doubt. Thus, there is no prejudice to cumulate.
DISPOSITION
The judgments are affirmed. The trial court is directed to correct the abstracts of judgment to delete references to a sentence of "life with the possibility of parole" on Count One, as such a sentence was not imposed on either defendant, and to forward a certified copy of the corrected abstracts of judgment to the Department of Corrections and Rehabilitation.
/s/_________
HOCH, J. We concur: /s/_________
BLEASE, Acting P. J. /s/_________
DUARTE, J.