Opinion
E070904
04-27-2020
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY JAMES MAYS, Defendant and Appellant.
Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. BLF1400082) OPINION APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos, Judge. Affirmed as modified with directions. Sharon G. Wrubel, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
In the early morning hours after drinking at the Horny Toad Saloon (the Horny Toad), defendant Timothy James Mays and his sister Ms. Mays gave Douglas Miker a ride home. Defendant drove. They first stopped at a nearby McDonald's and ordered food at the drive-thru. On the way to Miker's residence, defendant stopped in a dark and desolate area of Blythe so Miker could relieve himself on the side of road. As Miker was relieving himself with his back to the road, defendant walked up behind him, cocked a .380-caliber handgun, and pulled the trigger. The handgun misfired and, when a startled Miker turned around, defendant shot him in the head. Miker was found alive later that morning and taken to a local hospital. He was subsequently airlifted to a hospital in Phoenix, Arizona, where he died.
Defendant appeals from his state prison sentence of life without the possibility of parole (LWOP), plus 25 years to life, for his conviction for the special circumstance, first degree murder of Miker, and a true finding that he personally discharged a firearm and caused great bodily injury or death. Defendant claims the trial court made three evidentiary errors that deprived him of a fair trial: (1) the trial court violated his Sixth Amendment confrontation rights by permitting the prosecution to introduce the conditional examination testimony of the Arizona pathologist, who conducted Miker's postmortem, because the prosecution did not establish (a) the witness was unavailable and (b) that they had exercised due diligence in procuring the witness's presence at trial; (2) the trial court abused its discretion by permitting the prosecution to introduce into evidence a pair of sneakers discovered at defendant's residence because the sneakers were irrelevant and highly prejudicial, since they were ruled out by the prosecutor's own expert witness as having made shoe impressions near where Miker was found (and at the saloon defendant and Miker had visited before the shooting), and the court erred by permitting the prosecutor to argue defendant owned another pair of the same brand of sneakers that left the impressions; and (3) the trial court denied defendant the right to present a full defense by limiting his expert witness to testifying about general principles of false confession theory, but it precluded him from testifying that the police used coercive interrogation techniques during interviews of two key prosecution witnesses. Defendant argues that, even if the three evidentiary errors were not separately prejudicial, they were cumulatively so. Finally, defendant contends, and the People concede, the trial court erred by imposing an inapplicable parole revocation restitution fine.
Although we have serious reservations about the introduction of the out-of-state witnesses' conditional examination testimony, we conclude the error, if any, was harmless beyond a reasonable doubt. The out-of-state pathologist only testified about the cause of Miker's death, a fact not in dispute at trial. She did not opine about how close the shooter was to Miker or to any facts that were at issue at trial, such as the identity of the shooter. Depriving defendant of the opportunity to cross-examine the pathologist in front of a jury caused him no harm. Defendant's remaining claims of evidentiary error are unpersuasive, and we find no cumulative error either. We do agree, however, with defendant and the People that the trial court erred by imposing a parole revocation restitution fine since defendant was sentenced to LWOP, and we strike that fee. In addition, on the court's own motion, we modify the minimum restitution fine imposed on defendant to correctly reflect the amount applicable at the time of the offense instead of at the time of sentencing. As so modified, we affirm the judgment.
II.
PROCEDURAL BACKGROUND
By first amended information, the People charged defendant with first degree murder (Pen. Code, § 187, subd. (a)), and a special circumstance allegation that he killed Miker while lying in wait (Pen. Code, § 190.2, subd. (a)(15)). In addition, the People alleged defendant personally discharged a firearm and proximately caused great bodily harm or death (Pen. Code, §§ 12022.53, subd. (d), 1192.7, subd. (c)(8)), and he personally used a .380-caliber handgun (Pen. Code, §§ 12022.5, subd. (a), 1192.7, subd. (c)).
A jury found defendant guilty on the sole count of first degree murder, and found true the special circumstance allegation and the allegation that defendant personally discharged a firearm and caused great bodily injury or death. The trial court sentenced defendant to state prison for LWOP for the conviction of special circumstance first degree murder, plus a consecutive, indeterminate term of 25 years to life for discharging a firearm and causing great bodily injury or death. Relevant here, the trial court ordered defendant to pay a minimum $300 restitution fine and a minimum $300 parole revocation restitution fine but suspended imposition of the latter.
The allegation that defendant personally used a .380-caliber handgun related solely to the lesser included offense of voluntary manslaughter, so the jury made no finding as to it. Thereafter, the trial court granted the prosecutor's motion to dismiss the allegation in the interest of justice. (Pen. Code, § 1385.)
Before trial, the prosecution informed the trial court that it would not seek the death penalty.
Defendant timely appealed.
III.
FACTS
The judgment is presumed correct. (People v. Garza (2005) 35 Cal.4th 866, 881.) Therefore, pursuant to the normal rules on appeal, we must present the facts in the light most favorable to the judgment.
A. The People's Case.
1. Evening of April 3 and the early morning of April 4, 2014: the Horny Toad.
On the evening of April 3, 2014, Ms. Mays was at home in Blythe drinking alcohol when defendant, her younger brother, sent her a text message and asked if she wanted to go to the Horny Toad. Ms. Mays agreed, and they drove to the saloon in her Black Honda Fit. She was wearing black heels, black leggings, and a Misfits band T-shirt. Defendant was wearing "Chuck Taylors," i.e., Converse Chuck Taylor All Star shoes (Chuck Taylor). They arrived at around 10:00 or 10:30 p.m. and parked in the saloon's parking lot. The gas tank to Ms. Mays's Honda was almost empty. Ms. Mays was already feeling drunk because she had consumed six to eight drinks of alcohol and she was using about "an 8-ball of cocaine on a daily basis."
See Converse, Inc. v. Intern. Trade Com. (Fed. Cir. 2018) 909 F.3d 1110, 1113-1114.
Inside the bar, Ms. Mays asked defendant to go find her some drugs, and he left to get some. Ms. Mays "probably did some shots of Whiskey," socialized and mingled, and may have played some pool. She met Miker that night for only the second time and said hello, and she may have played pool with him. Ms. Mays had met Miker once before at the Horny Toad, but the first encounter did not go too well. She had said something to Miker about him giving her a dirty look, and she thought he was rude to her and not a nice guy. Ms. Mays learned later Miker had a lazy eye or something of that nature, and she felt terrible about it.
Defendant eventually returned with some cocaine for Ms. Mays. He and Miker were part of a group of people drinking shots at the bar. Although Ms. Mays did not remember anything out of the ordinary in her interaction with Miker that evening, she told defendant that Miker was a "dick." She also sent a text message to a man she was casually dating and told him Miker "was a fucking asshole" or "a fucking dick," and "He hates me. I'm trying to be nice." As she hung out at the bar longer, things "started getting foggy" for Ms. Mays. The atmosphere at the bar was fun, "a little rowdy," with a young crowd "drinking a little too much." Ms. Mays did not remember a fight or altercation occurring.
When asked what caused her to send those messages, Ms. Mays testified "it was a little fabricated" because she was "drunk," and when she "got a little tipsy" she might text things that "would come across a little bit maybe more severe than how [she] meant it." She did not remember if she had said something similar about Miker to defendant than night. When interviewed by police, Ms. Mays said Miker was a "douche bag" when he drank.
Around the same time that Ms. Mays and defendant arrived at the Horny Toad, Sean Rutledge and his friend Bobby Trevino entered Patty's Bar and Grill (Patty's) across the street. Sometime later, the two men walked to the Horny Toad. Rutledge saw Miker there, who he had met before. He also saw Ms. Mays, who he knew of from high school. Trevino told Rutledge that Ms. Mays was at the bar with defendant, and later Rutledge saw defendant there. It was almost last call and "[t]hings were just kind of winding down." As people were finishing their drinks before the saloon emptied out, Trevino was at the bar arguing with or having a loud conversation with a man wearing a cowboy hat. The argument fizzled out when Miker pulled Trevino aside and distracted him. Miker then left the bar with defendant and Ms. Mays.
Sometime between 1:30 and 2:00 a.m., on April 4, Rutledge told Trevino he was going to get his car and for Trevino to wait outside. As he walked out of the Horny Toad, Rutledge saw Ms. Mays and defendant drive out of the parking lot. The bartender of the Horny Toad also saw Ms. Mays and defendant leave. Rutledge walked back across the street to get his car that was parked behind Patty's, then drove back and parked in the Horny Toad's parking lot. As he sat in his car waiting for Trevino, Rutledge saw Ms. Mays and defendant return to the parking lot of the Horny Toad and park next to his car. Defendant was driving. The bartender also saw them return.
Miker exited the rear driver's side of Ms. Mays's car and went to urinate. Trevino walked out of the saloon with the bartender. The bartender overheard a conversation about going to McDonald's to get food, then got in her vehicle and drove away. Trevino walked over and started talking to Ms. Mays, who was seated in the passenger seat of her car. Defendant was in the driver's seat but got out of the vehicle and started indicating for everyone to get back in the car so they could leave. Defendant then drove off with Ms. Mays and Miker, who had come back from urinating.
2. Early morning of April 4: discovery of Miker.
Around 5:45 a.m., a woman was driving to work from her Blythe home and, after turning from Arrowhead onto 10th Avenue, she saw a man lying on his back on the shoulder of the road. There was no one else around and no other vehicles were on the roadway. The woman called her husband, turned around, and stopped to see who it was on the ground. From her vehicle she saw blood. She exited her vehicle and stayed near the hood, and from there she could see that the man's penis was exposed and the zipper to his shorts was undone.
The area near the intersection of Arrowhead and 10th is rural and desolate, with a single home nearby and agricultural fields. There is no lighting in the area and, at night, it is very dark. That area is a mile and a half or two miles from downtown Blythe, and a few miles further from the residential area of Blythe known as Mesa.
The woman's husband arrived about eight minutes later. He walked toward the man lying on the ground and saw he was still alive and there was a pool of blood under his head. The husband tried to speak with the man, but he could not reply and was spitting up blood. He believed the man had been urinating with his back to the road because his shorts were undone, his penis was exposed, and there were wet spots on the ground next to him. The husband asked his wife to call 911.
When sheriff's deputies arrived around 6:21 a.m., the husband pointed to the man and shell casing, which were lying on the ground. The deputies approached the man and radioed that it was safe for medical staff to enter the scene and provide treatment. The man was gasping, bodily fluids were coming out of his mouth, and there was a pool of blood to the left side of his head. His hands were at his side, his head was positioned closer to the road, and his feet away from the road. His shorts were unbuttoned and down past his hips, and his penis was slightly exposed. There was a wet spot on the ground near his feet that appeared to be fresh. From his identification, the officers learned the man was Miker. Emergency personnel transported Miker to a hospital in Blythe, but he was later flown to a hospital in Phoenix, Arizona, where he died.
3. Morning and day of April 4: defendant washes Ms. Mays's Honda, he makes incriminating statements to Justin Henninger, and news about the shooting spreads around town.
In April 2014, Justin Henninger (Justin) had been living in his uncle's (Mr. Henninger) Blythe home for about eight months. Justin had met defendant during a summer stay a year or two earlier, and they were part of a larger group of friends. Justin had met Ms. Mays a few times. He and defendant started hanging out again when Justin moved to Blythe, and they were best friends and saw each other almost every day. Justin was only 20 years old at the time of the shooting, and he was not at the Horny Toad on April 3 or 4.
On the morning of April 4, Mr. Henninger woke Justin up and told him defendant was knocking on the door. Justin looked out his window and saw defendant. Justin went and opened the door and asked defendant what he was doing there so early. Defendant said he needed to wash his sister's Black Honda and take a shower. Defendant had never asked to wash his sister's car there before, but Mr. Henninger and Justin had seen defendant drive the car a couple times. Justin told defendant to pull the car into the backyard where the hose was located, and said he would get him soap, towels, and a vacuum cleaner. He then went back to sleep. The backyard was not visible from the street in front of the house. Defendant seemed fine and acted normally when he first arrived.
Mr. Henninger testified somewhat differently about the car washing. He testified it was defendant who specifically asked to wash the car in the backyard, which Mr. Henninger thought was odd because the front yard was paved and sloped very well to the gutter yet the backyard was uneven and the grass was not fully grown, so there was a lot of bare dirt. After asking defendant questions, such as why he was there so early and why he wanted to wash the car, Mr. Henninger agreed to let defendant wash the car in the backyard. He gave Justin or defendant the key to the gate, and the two young men washed the car together. And Mr. Henninger testified it was defendant who asked for a vacuum cleaner to vacuum the interior of the car.
Justin woke up a little later and walked out to the backyard to smoke a cigarette. Defendant was finishing up and drying the car. Contrary to his uncle's testimony (see, ante, fn. 7), Justin testified he did not help defendant wash or dry the car. Justin noticed defendant "was hiding behind stuff when cars would go through the alley," and "if he heard a noise, he would jump." When he was finished with the car, defendant took a shower and changed his clothing. Justin did not recall what shoes defendant was wearing, but he testified defendant owned a pair of "black skater shoes" and a pair of Chuck Taylor shoes.
After defendant was finished showering, he had a conversation with Justin on the back patio. Justin asked, "what his problem was, why he was acting like that." Defendant asked Justin if he knew Miker, and when Justin replied "no," defendant said, "Oh, well, I shot him last night." Defendant said he had been at a bar and some "drama had happened." Miker then asked for a ride, and defendant told him, "Yeah, we've just got to stop off at my house and grab something real quick." Defendant told Justin he stopped at his house to get a .380-caliber handgun, then started to drive Miker home. On the way, Miker asked defendant to pull over so he could "pee." Defendant told Justin he stopped the car and Miker got out to urinate. Defendant told Justin, "he went to cock his gun and it misfired," scaring Miker. And when Miker turned around, "that's when he shot him" in the face. Defendant said he shot Miker "[b]ecause he was disrespecting [defendant's] sister at the bar, calling her all kinds of names." Defendant told Justin he thought Miker was still alive, but he was not sure.
Before defendant could say anything else, Justin said, "Time to go." Defendant asked for a ride because there was no gasoline in his sister's car. Justin checked, and the car did not have enough gasoline to go anywhere. He drove defendant to his home on the west side of Blythe in Mr. Henninger's vehicle. Defendant asked Justin to drive down 10th Avenue and to go to the hospital to see what was going on, but Justin did not do so. Justin did not see defendant again.
After dropping off defendant, Justin went home. He poured about a gallon of gasoline into the tank of Ms. Mays's car. The car got stuck in the dirt, and Mr. Henninger helped him get it out. He then drove the car to defendant's grandmother's house, where Ms. Mays lived. Justin left the keys in a planter then called defendant and told him he had dropped the car off.
Later that day, Mr. Henninger received 11 phone calls from defendant. He ignored the calls at first but eventually answered and told defendant to stop calling. Defendant asked to speak with Justin. Blythe is a small community and news about the shooting traveled fast. Mr. Henninger learned about the shooting online and from other people, and he spoke about it to Justin in passing. Justin said he and defendant had a conversation after washing the car, but he did not tell Mr. Henninger what defendant had said.
Ms. Mays did not remember anything that happened after she left the Horny Toad. When she woke up that morning, she saw that her car was not there. It was returned later that day. She assumed defendant had returned the car because he was the only other person allowed to drive it. The car was clean, which was unusual because Ms. Mays had previously given defendant a hard time about him borrowing the car and not returning it clean. Later that day, she spoke to defendant and asked why he had cleaned the car. Defendant said the car was dirty, "[h]e had things inside, and he needed to clean it."
The same day, Ms. Mays received a text message from a friend saying "a lot of people were alarmed" about something that happened the night before. She may have deleted from her phone text messages from defendant about the night before, to protect him.
4. Investigation.
Police discovered two sets of shoe impressions on the ground leading from the roadway to where Miker was found lying down. One set of impressions appeared to match the soles of Miker's DVS shoes. The second set appeared to be from a pair of Chuck Taylor shoes. Neither the woman who discovered Miker nor her husband were wearing Chuck Taylor shoes, and the soles of their shoes did not have similar patterns to the second set of shoe impressions, either. In the parking lot of the Horny Toad, police found shoe impressions from a pair of Chuck Taylor shoes, similar to the impressions found near Miker.
Police searched defendant's home and found a pair of Chuck Taylor shoes in his bedroom. The shoes were damaged and worn, and had a rip along the side. No other Chuck Taylor shoes were found in the home. A criminalist with the Department of Justice (DOJ) testified the size nine and a half shoes taken from defendant's home were "cut up all over the place," and some of the rubber sole was peeling off. The soles had "kind of a diamond-shaped pattern" on the heal, ball of the foot, and toe. The criminalist could not form an opinion as to the size of the shoes that left the impressions near where Miker was found or in the Horny Toad's parking lot because the ruler placed next to the impressions for photographing was curved. He concluded the shoes taken from defendant's home did not leave the shoe impressions.
Police discovered two spent shell casings near Miker. The casings were .380-caliber with the letters R and P stamped on it. They also found two unfired .380-caliber cartridges with projectiles still in them on the pavement west of where Miker was lying down. The live rounds had the same writing on them as the fired casings.
Police found tire impressions on the dirt shoulder near where Miker was found and in the parking lot of the Horny Toad. Ms. Mays gave written consent for a search of her Honda. The car was dusty but appeared to have been recently washed. The tire treads were similar to the tire impressions found near Miker and in the parking lot of the Horny Toad, and exemplars were taken of all four tires. The DOJ criminalist examined the tire exemplars and photographs of the tire impressions found at the Horny Toad and near Miker. He concluded the front tires to Ms. Mays's Honda did not leave the impressions, but the rear tires could have left them.
A forensic technician found what appeared to be blood on the passenger seat of Ms. Mays's Honda. The blood spot was collected, but it was not tested because the police already knew defendant, Ms. Mays, and Miker were in the car, and Miker could not have been shot inside the car.
At a McDonald's, which was about a five-minute drive from the Horny Toad, video footage was taken shortly after 2:00 a.m. on April 4. The footage showed a dark vehicle in the drive-thru with the same stickers as those found on Ms. Mays's car, and a person in the rear passenger seat paying for a meal. The video had an imprinted order list for order No. 60, which included a Big Mac with no cheese, other hamburgers, French fries, and an unsweetened iced tea. A McDonald's hamburger box found in the parking lot of the Horny Toad had a receipt attached to it for order No. 60, which was time-stamped at 2:05 a.m.
Ms. Mays also gave consent to search her cellular phone and phone records. A search of her phone showed she had called defendant twice in the morning and twice on the afternoon of April 4, 2014. The phone also had two missed calls from defendant that morning and one missed call from him in the afternoon.
The People introduced the conditional examination testimony of Dr. Wallis, an associate medical examiner in Maricopa County, Arizona, who testified she performed the postmortem on Miker. Dr. Wallis's external examination revealed a gunshot entrance wound to the right upper portion of Miker's head and an exit wound to the left portion of his head behind his ear. An internal examination revealed the wound path through the head and the parietal portion of the brain was front to back and slightly downward, which indicated Miker was in an "anatomic" or upright position when the bullet was fired. Dr. Wallis observed no burnt or unburnt gunpowder on Miker but, because any gunpowder may have been removed as Miker was treated in the hospital, she could not opine from the absence of gunpowder that the shot had been fired from a distance. Dr. Wallis opined the cause of death was a gunshot wound to the head.
The "anatomic position" is defined as "the erect position of the body with the face and gaze directed anteriorly (cranium aligned in orbitomeatal or Frankfort plane), the upper limbs at the side, and the palms of the hands directed anteriorly; terms of spatial relation such as posterior, anterior, lateral, and medial, are applied to the parts as they stand related to each other and to the axis of the body when in this position." (See <https://medical-dictionary.thefreedictionary.com/anatomic+position> [as of Apr. 27, 2020].)
The week after the shooting, Mr. Henninger returned to work and learned the police were looking for defendant as a suspect. The next morning, he called the sheriff's department and told them he had some information. The police came to Mr. Henninger's home and collected the vacuum cleaner that defendant had used. Three days later, police interviewed Mr. Henninger. He told them defendant had come over and asked to wash a car very soon after the shooting, and told them about the phone calls he had received from defendant later that morning.
Police found defendant nine days after the shooting. He was hiding in the backyard shed of someone else's home, lying in the fetal position under a pile of debris.
5. Testimony about Justin and Ms. Mays's interviews by the police.
After his conversation with defendant the morning defendant washed Ms. Mays's car, Justin started to hear about the shooting and people asked him where defendant was. Justin did not immediately talk to the police because he was afraid something might happen to him if he snitched on defendant. Justin was gone for three days after that. When he came back home, Mr. Henninger told him he had to speak to the police and took him to the station where he was interviewed. Justin testified he was less than truthful with the police at the beginning of his interview because he did not want them to think he had any part in the murder. But, he did not use the rumors he had heard about the shooting "to make up a story" about what defendant had told him.
On cross-examination, Henninger repeatedly testified his direct testimony was the truth, although it differed in some respects from his statement to the police and from his testimony at the preliminary examination. He did not want to talk to the police and, at first, repeatedly told them defendant had not told him anything about the shooting. Justin was a serious drug addict at the time, and the interrogation lasted several hours and prevented him from obtaining more drugs. He denied he had been experiencing hallucinations at that time. The police officers put pressure on Justin by saying he would be swept up in the case if he did not say something, and he would be the one to go down for the special circumstance murder and possibly face the death penalty.
But on redirect, Justin testified he did not lie to the police, did not lie during his preliminary examination testimony, and did not lie during direct examination. Although the police put pressure on him and told him anyone involved in the shooing could go down for a special circumstance murder, Justin did not lie to the police when he told them what defendant had said about the shooting. Justin testified his statement to the police, his preliminary examination testimony, and his direct testimony at trial were all consistent. The police did not feed him information about the shooting, such as the caliber of the weapon. And Justin said he was not forced to testify.
Ms. Mays was interviewed by the police for a total of about three hours, but she was kept at the police station for roughly 17 hours. While searching her Honda, police found cocaine in her car and told Ms. Mays she was no longer free to leave. Ms. Mays testified she "spent countless hours" and "well into the next morning" in an interrogation room as she was "hung over," "still kind of drugged out," and "would do anything and say anything" to get out of the situation she was in. Ms. Mays suffered from depression and bipolar disorder at the time, and that anxiety was "a really big problem" for her and she took medication for it. She had several anxiety attacks during the interview.
Officers spoke to Ms. Mays for a while, left her alone for long periods of time, and resumed questioning her with more pressure than before. The police told her "they could put me away." They also told Ms. Mays they had video evidence, including of her vomiting at the Horny Toad. At first, she told investigators she knew nothing about the shooting. But, after more and more pressure, being told she was lying, and being threatened that she could go away for the rest of her life, she asked the investigator, "If I tell you what you want to hear, are you going to let me go home?" Ms. Mays told them what they wanted to hear, although it was not the truth.
Ms. Mays testified she told the police she had asked defendant "if he shot [Miker]," and he replied, "Yes." And when the police asked Ms. Mays why it was that she thought defendant had shot Miker, she replied, "I know he did it." But she testified what she had told the police was untrue, and she only said those things because she wanted to get out of the interview as quickly as possible. When asked why she told the police defendant had left the bar to get a gun instead of saying he left to get her drugs, Ms. Mays testified "[t]hat was me lying," and that she was "trying to cover my own ass and get out of there as fast as I could." She did not recall going to McDonald's after leaving the Horny Toad, and she did not remember telling police they had gone through the McDonald's drive-thru or that they dropped Miker off at McDonald's.
Ms. Mays testified she does not eat at McDonald's because she is a vegetarian.
B. Defense Case.
Dr. Leo, a professor of law and psychology at the University of San Francisco and a researcher in the fields of police interrogations and false confessions, was designated by the trial court as an expert witness on the subjects of police interrogations and psychological coercion. He testified there is a difference between police interviews and interrogations. "Interviewing is open-ended questioning" with the idea "to let the person you're interviewing do most of the talking." It is typically used for witnesses, victims, or potential suspects, and takes place early in the criminal investigation with the goal of obtaining "reliable information to develop the investigation."
Interrogations are more specialized, according to Dr. Leo, and typically take place later in the investigation and are "just for suspects." They are stressful by design. Instead of open-ended questions, interrogations involve "directed, accusatory questioning" with the goal of obtaining "a confession or an admission or statement from somebody the police [have] concluded is either involved in a crime or has knowledge of a crime." The goal of interrogation is not necessarily to get the truth but first and foremost to obtain an incriminating statement. Police officers are trained in conducting interviews and interrogations and, according to police manuals, officers proceed from interviews to interrogations after thoroughly investigating and concluding the interrogee has committed a crime. According to Dr. Leo, "At that point, you then apply the techniques of pressure and persuasion to move the suspect, who you assume is going to deny guilt, from denial to admission."
Dr. Leo testified interrogation involves accusing the suspect of committing a crime, accusing him or her of lying when they deny guilt, and attempting to neutralize and challenge the suspect's denials as illogical or inconsistent with real or made up evidence, such as saying there is video evidence of the crime that does not exist. Police use forms of interpersonal pressure during interrogations such as how they use their voice and how close they are when they speak to the suspect. They also utilize inducements or incentives, such as telling the suspect it will be in their best interest to stop denying guilt and make an admission. "They might be appeals to morality; they might be appeals to religion; they might be appeals to psychological well-being, if the suspect confesses as opposed to continue to deny; they might be appeals to the proceeding of the suspect's case in the criminal justice system and how certain people might be more responsive or favorable—prosecutors, judge, jury—or how the officer can help the suspect if the person stops denying and starts admitting."
The psychology of interrogation, according to Dr. Leo, is to convince the suspect they have been caught and no one will believe their denials. He described the psychology as "carrots and sticks" by telling the suspect it is futile to deny guilt and to incentivize them to admit guilt. One way to incentivize a suspect is to suggest scenarios in which the suspect will come out looking worse if they continue denying guilt, such as suggesting people will believe a homicide suspect acted with premeditation, he or she killed intentionally, and they are a cold-blooded monster. In contrast, the officer can suggest scenarios in which the suspect comes out looking more favorably if they admit guilt because people will believe he or she acted in self-defense, it was an accidental killing, or the killing was the result of an understandable mistake or provocation.
Dr. Leo testified use of certain psychologically coercive interrogation techniques is of concern because it creates a high risk of eliciting false or unreliable statements and can lead to "the erroneous outcome of a plea bargain or a conviction." Psychological coercion refers to the cumulative effect on a suspect of interrogation techniques used over a period of time, causing "the suspect to perceive they have no meaningful choice but to comply with the demands or requests of the investigator or investigators." The "idea [is] that they feel or come to feel forced to comply and make one agree to a statement." Dr. Leo testified certain individuals are more vulnerable to psychological coercion than others. There are "risk factors" that might result in an involuntary or false statement, such as personality traits and personality characteristics. Persons at greatest risk of making unreliable statements are juveniles, persons with low IQs or low cognitive functioning, and persons with mental illness.
But, most of the documented cases of false confessions Dr. Leo studied came from "mentally normal adults." People who are highly suggestible or highly compliant are also at great risk of making involuntary or unreliable statements or confessions. Persons with weak or more vulnerable personalities may give false or unreliable statements even if their interrogation is not coercive. Alcohol dependency or intoxication withdrawal can make a person more vulnerable and suggestible. Persons who are naïve, who have great trust in authority figures, who suffer from anxiety, and who have less confidence in their memories are also at greater risk of being suggestible and compliant during interrogations.
Lengthy interrogations over many hours, sleep deprivation, and confronting a suspect with false evidence also increase the risk of involuntary or unreliable statements. Dr. Leo also testified about the use of "minimization" and "maximization" techniques. In the former, an interrogator explicitly or implicitly "minimizes the blameworthiness the suspect will face and/or the consequences if they confess," and makes "promises of more lenient treatment in exchange for making a statement." In the latter, an interrogator suggests or threatens the suspect will face "more blame and harsher consequences if they continue to deny." Another area of concern with police interrogations is the possibility that officers may have "tunnel vision" and continue to push for an admission or confession to substantiate their theory of what happened and ignore evidence that is inconsistent with that theory. Interrogators may also increase pressure over time as they become frustrated when a suspect continues to deny guilt.
Although interrogation techniques are typically reserved for suspects, they can be used on witnesses as well. Dr. Leo testified the same risks and concerns that coercive interrogations of suspects could lead to unreliable or false statements apply to interrogations of witnesses. It is easier to convince a witness to incriminate another person than it is to convince them to falsely incriminate themselves.
On cross-examination, Dr. Leo testified that in cases of false confessions he would expect the suspect to recant at some point. He would also expect recantation in the case of a false statement from a witness. The interrogation techniques he described were not prohibited by law, they are standard, and they usually result in truthful confessions because false confessions are the exception. To determine whether a confession or statement is false, Dr. Leo would consider whether the information provided in the confession or statement was independently corroborated. If the information was corroborated, all things being equal, he would believe the statement or confession was likely truthful.
IV.
DISCUSSION
A. Any Error in Admission of Dr. Wallis's Conditional Examination Testimony Was Harmless Beyond a Reasonable Doubt.
Defendant contends his Sixth Amendment confrontation clause rights were violated when the trial court permitted the People to conduct a conditional examination of Dr. Wallis, and when it permitted the People to introduce Dr. Wallis's conditional examination testimony at trial. According to defendant, the prosecutor did not establish Dr. Wallis was unavailable to testify at trial and did not establish it had exercised due diligence to secure her attendance at trial. The People do not strenuously defend the trial court's ruling on the admission of Dr. Wallis's conditional examination testimony on the merits and, instead, contend we need not determine whether the prosecutor should have done more to secure Dr. Wallis's attendance at trial because the error, if any, was harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18. We agree with the People.
1. Additional background.
Leading up to trial, the People thrice requested and received out-of-state certificates under the Uniform Act to Secure the Attendance of Witnesses from without the State in Criminal Cases (the Act; Pen. Code, § 1334 et seq.), requesting the attendance of Dr. Wallis as a witness on December 1, 2015, September 19, 2016, and November 15, 2017. The trial date was continued numerous times. But, by March 2018, the parties agreed the last day for trial to commence (under defendant's most recent time waiver) was May 14, 2018.
The record on appeal contains a subpoena issued to Dr. Wallis in connection with the People's third application. The People's brief tends to indicate a subpoena was issued with each certificate.
On April 11, 2018, the People filed a fourth request under the Act for a certificate to compel the attendance of Dr. Wallis as a witness. As he did in his three prior applications, the prosecutor stated Dr. Wallis's testimony was relevant and material because she had performed the postmortem and listed the cause of death as a gunshot wound to the head. The district attorney requested Dr. Wallis be called as a witness on May 15. But, in a trial brief filed May 11, the People now requested permission to conditionally examine Dr. Wallis pursuant to Penal Code section 1336, subdivision (a), in lieu of presenting her live testimony at trial. The People stated Dr. Wallis was already under subpoena for May 15, she was "scheduled to fly in and out the same day," and she was unavailable for the foreseeable future after that date.
At a hearing on pretrial motions conducted May 14, 2018, the prosecutor informed the trial court that, although the victim was shot in Blythe and transported to a local hospital, he was later airlifted to a Phoenix, Arizona, hospital where he died. Because the victim died in Phoenix, his postmortem was conducted by Dr. Wallis, a pathologist with the Maricopa County Medical Examiner's Office. The prosecutor said his office had coordinated with Dr. Wallis "as the case meandered through the system." When it became clear evidence would not be introduced until sometime after trial commenced, the prosecutor's staff contacted Dr. Wallis to secure a date for her attendance and were told by the doctor's representative that she was available May 14 and 15 but "not on any date in the next two weeks." Because Dr. Wallis was already scheduled to appear on May 15, the prosecutor arranged, at Dr. Wallis's request, for her to fly in and out of Palm Springs that same day so as "to not miss any work engagements within Maricopa County and the Phoenix area." The prosecutor argued that, because Dr. Wallis was an out-of-state witness and would be leaving the state after her testimony on May 15, she could be conditionally examined under Penal Code section 1336, subdivision (a). The prosecutor anticipated the conditional examination would take no more than one hour, and he would "likely read in [Dr. Wallis's] testimony to the jury so as to use any exhibits that might be used during her testimony."
Defendant objected, arguing "[t]he code does not allow for a conditional examination for the convenience of a witness, which is what this request is." Although Penal Code section 1336, subdivision (a), permits conditional examination of a witness who is about to leave the state, defendant argued applying that statute to Dr. Wallis was "a stretch . . . because this witness doesn't even reside in the state to begin with. She's simply coming in as to her chosen date to be available, . . . rather than she's here and she's about to leave the state or the country." Defendant argued conditional examination should be reserved for extreme and limited circumstances because it denies a defendant's constitutional right to confront and cross-examine witnesses and "to have a witness against him be viewed personally by a jury to look at their demeanor, how they answer questions, how they react to questions." In addition, defendant argued permitting the prosecutor to conditionally examine Dr. Wallis before the introduction of evidence would deny him the opportunity to recall Dr. Wallis and ask her follow-up questions considering other evidence that was introduced. Because Dr. Wallis was an out-of-state witness, defendant argued the People should have subpoenaed her under the Act to secure her testimony during trial. Moreover, defendant argued the People's request to conduct a conditional examination was made in a trial brief and was not supported by an affidavit, "so they don't fall in line with the code." Defendant reiterated that the situation facing the court was a matter of "a witness not wanting to" appear on a later date, and "that's not what a conditional exam is meant for nor should it be utilized for, because it's the defendant's rights that should trump the convenience of a witness."
When asked to address defendant's concerns about "how a person is going to react or respond to questions in front of the jury," and "if something does develop, will she be available then to address those issues as we go through the trial," the prosecutor responded, "None of that is contemplated by a conditional exam. Because if you do a conditional exam, you're left with the conditional exam." The prosecutor stated Dr. Wallis was "just unavailable due to whatever she has going on in Arizona. I assume her duties as a doctor make her unavailable for the next couple weeks." He argued, "it's not a question of convenience for her, it's a question of her being an out-of-state witness and being available on this date, which corresponds to her schedule. She's under subpoena for tomorrow because that was her date of availability."
When the trial court asked, "why can't she just be ordered here on a certain date and have her flown in for that date and flown back out," the prosecutor answered, "[w]ell, she's not available." Defendant again pointed out the prosecutor did not submit an affidavit in support of a conditional examination, and argued the only information provided in the People's trial brief about Dr. Wallis's unavailability on another date was "a vague reference of 'She's busy.'" The trial court asked the prosecutor to elaborate on Dr. Wallis's unavailability. "Was it just because "'I'm working?'" The prosecutor replied, "I assume it's her working schedule." But he also argued the court should not "be concerned with whether or not it's an inconvenience to her because she's out of state. . . . [¶] . . . If you're out of state, you're out of state. It doesn't matter why."
After additional argument, the trial court concluded Dr. Wallis was an out-of-state witness for purposes of Penal Code section 1335 and granted the People's request to conditionally examine her. The court indicated it was considering ordering Dr. Wallis to be subject to recall "if there's anything that arises and if the defense wishes to bring her back." Before Dr. Wallis testified, defendant objected for the record that the conditional examination violated his rights under the Fifth, Sixth, and Fourteenth Amendments. And before dismissing Dr. Wallis, the trial court informed her she was subject to recall.
When the prosecutor later sought to introduce Dr. Wallis's testimony during trial, defendant once again objected. Defendant argued the People did not exercise due diligence in securing Dr. Wallis's attendance during the trial and, consequently, admission of her conditional examination testimony would violate defendant's confrontation rights under the Sixth Amendment. The prosecutor responded he subpoenaed Dr. Wallis as an out-of-state witness for May 15 under the belief "we'd be in the middle of evidence at that time." When the trial was delayed, however, it became clear "that particular date was not going to be a date that we had the jury impaneled." Because Dr. Wallis had no other available dates in the month of May due to her position as a medical examiner, the prosecutor had requested permission to conditionally examine her. And when the trial court granted that request, the prosecutor believed Dr. Wallis's testimony "was coming in" and "we didn't do anything after the conditional exam to secure her presence." After additional argument, the trial court concluded the People acted in good faith and exercised due diligence by subpoenaing Dr. Wallis to appear on May 15, and the People had established Dr. Wallis was unavailable to testify during the trial. Therefore, the court overruled defendant's objection and Dr. Wallis's conditional examination testimony was read to the jury.
The prosecutor misspoke by saying he subpoenaed Wallis for May 7.
The jury was not sworn until May 23, and the People's first witness did not testify until May 29.
2. Analysis.
We are highly skeptical that the prosecutor satisfied his twin duty to demonstrate that Dr. Wallis was truly unavailable and to demonstrate the prosecutor had exercised constitutionally mandated due diligence to secure her presence at trial. (See, e.g., People v. Foy (2016) 245 Cal.App.4th 328, 338-339.) But, as the People contend, we need not reach those questions. '""Confrontation clause violations are subject to federal harmless-error analysis under Chapman v. California (1967) 386 U.S. 18, 24 . . . ." [Citation.] We ask whether it is clear beyond a reasonable doubt that a rational jury would have reached the same verdict absent the error.'" (People v. Livingston (2012) 53 Cal.4th 1145, 1159.)
"As the court explained [in Delaware v. Van Arsdall]: 'Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.'" (People v. Hernandez (2012) 53 Cal.4th 1095, 1108.) The five Van Arsdall factors are nonexclusive (Ortiz v. Yates (9th Cir. 2012) 704 F.3d 1026, 1039), and the government need not prevail on all five for a reviewing court to find the error was harmless beyond a reasonable doubt (see, e.g., U.S. v. Evans (5th Cir. 2018) 892 F.3d 692, 718 (Evans)).
Delaware v. Van Arsdall (1986) 475 U.S. 673 (Van Arsdall).
We have no trouble finding the error here, if any, was harmless beyond a reasonable doubt. "The first three Van Arsdall factors circle around a related set of questions. Was [Dr. Wallis's] testimony important? Unique? Non-Cumulative?" (Evans, supra, 892 F.3d at p. 717.) Dr. Wallis testified about her external and internal examination of Miker; about the entry and exit wounds she observed on Miker's head; about the wound path she observed through the skull and parietal portion of the Miker's brain; that the wound path meant Miker was in an anatomic or upright position when he was shot; and, finally, that the cause of Miker's death was a gunshot wound to the head.
Without a doubt, cause of death is an important issue and something the prosecution must prove beyond a reasonable doubt in every homicide case. But, in this case, the manner and cause of Miker's death was simply not contested. Although the prosecution introduced no other evidence of how Miker died, meaning Dr. Wallis's testimony was unique and noncumulative, her testimony was not germane to the real facts in dispute in this case: the identity of the shooter and whether Justin and Ms. Mays were coerced into falsely fingering defendant and telling the police that defendant had admitted the deed. Dr. Wallis expressly testified she could not opine whether the shooter was close to Miker when he or she pulled the trigger, and she was not asked and did not testify about facts that were truly at issue in this case. Therefore, the first three Van Arsdall factors favor a finding of harmless error.
The fourth Van Arsdall factor also favors a finding of harmless error because defendant was permitted to fully cross-examine Dr. Wallis during the conditional examination, and the trial court ordered Dr. Wallis to be subject to recall if defendant believed additional evidence in the trial required further probing about the postmortem and about Dr. Wallis's conclusions. That defendant did not ask for Dr. Wallis's recall for live testimony in front of the jury tends to demonstrate defendant sufficiently examined Dr. Wallis during the conditional examination.
Finally, the fifth Van Arsdall factor also favors a finding of harmlessness. The prosecution's case for guilt, though largely circumstantial, was strong and compelling. The evidence and reasonable inferences the jury could have drawn from the evidence supported the prosecutor's theory that defendant shot Miker after a night of drinking at the Horny Toad because Miker had disrespected Ms. Mays. The physical evidence, such as the shoe and tire impressions and the .380-caliber shell casings and cartridges, as well as the witness testimony, corroborated Justin and Ms. Mays's statements to the police about defendant's incriminating statements. And the evidence tended to show defendant tried to cover himself by washing Ms. Mays's car and hiding when it became clear he was the prime suspect.
In sum, we conclude the error in admitting Dr. Wallis's conditional examination testimony, assuming it was error, was harmless beyond a reasonable doubt.
B. The Trial Court Properly Admitted Evidence of Shoes Discovered in Defendant's Home.
As he did at trial, defendant argues the Chuck Taylor shoes discovered in his bedroom were irrelevant and highly prejudicial evidence because the prosecutor's own expert excluded the shoes as having made the shoe impressions near Miker and at the Horny Toad, and introduction of the shoes permitted the jury to speculate that defendant must have owned another pair of Chuck Taylor shoes and was wearing them the night of April 3 and the early morning of April 4, 2014. He also contends the trial court erred by permitting the prosecutor to argue to the jury, at least by inference, that defendant must have owned another pair of Chuck Taylor shoes, and he wore them the morning of the shooting. Defendant argues the trial court abused its discretion as a matter of state evidence law and violated his federal constitutional rights to a fair trial. The People argue the trial court properly admitted the shoes and, if it did err, the error was harmless under state and federal law. We find no prejudicial error.
Defendant also argues that, to the extent he has forfeited his claim of federal constitutional error by failing to object to introduction of the shoes on that basis, his trial attorney rendered ineffective assistance of counsel (IAC). The People do not argue forfeiture, and we find none.
1. Additional Background.
At the hearing on defendant's motions in limine, defendant moved to exclude testimony from the DOJ expert about the Chuck Taylor shoes taken from defendant's home. According to defendant, although the shoes had the same pattern on the soles as the shoe impressions discovered in the parking lot of the Horny Toad and near Miker, testing conducted on the shoes eliminated them as having made the impressions. Therefore, defendant argued the shoes were irrelevant. In addition, defendant argued the shoes would lead the jury to speculate about who left the shoe impressions, and they should be excluded as more prejudicial than probative.
The prosecutor argued the shoes were "highly valuable circumstantial evidence as to who committed this offense." The prosecutor told the court Ms. Mays would testify (or be impeached with her prior inconsistent statement to the effect that) defendant wore Chuck Taylor shoes the night of the murder. Although the shoes taken from defendant's home were worn and torn, and they were excluded by the DOJ as having made the shoe impressions, the prosecutor argued the evidence was highly probative to proving identity. The prosecutor said he would argue to the jury defendant must have owned another pair of Chuck Taylor shoes that he wore the night of the murder, and that second pair left the impressions.
The court ruled the evidence was more probative than prejudicial and denied the motion to exclude the evidence.
During closing argument, the prosecutor argued to the jury, without objection, that it was not a coincidence shoe impressions from Chuck Taylor shoes were found in the parking lot of the Horny Toad and at the crime scene because Ms. Mays testified defendant was wearing Chuck Taylors. The prosecutor said the shoes found at defendant's home were unwearable and not a match for the impressions and told the jury those shoes could not have been the pair defendant was wearing the night of the murder. The prosecutor did not explicitly argue the jury should draw the inference that defendant owned a second pair of Chuck Taylor shoes that left the impressions, but that was the gist of his argument.
During deliberations, the jury requested to review the testimony about shoe impressions, and it was read back to them.
2. Applicable law
"No evidence is admissible except relevant evidence." (Evid. Code, § 350.) "Except as otherwise provided by statute, all relevant evidence is admissible." (Evid. Code, § 351.) "'Relevant evidence' means evidence . . . having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210, italics added.) In other words, evidence is relevant if it logically, naturally, and by reasonable inference tends to establish a material fact at issue such as identity, intent, or motive. (People v. Ghobrial (2018) 5 Cal.5th 250, 282.) Conversely, "evidence leading only to speculative inferences is irrelevant." (People v. Kraft (2000) 23 Cal.4th 978, 1035; accord, People v. Morrison (2004) 34 Cal.4th 698, 711.)
"The 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.) "'The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. "[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is 'prejudicial.' 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.'"'" (People v. Nguyen (2015) 61 Cal.4th 1015, 1035 (Nguyen).)
"'A trial court has "considerable discretion" in determining the relevance of evidence. [Citation.] Similarly, the court has broad discretion under Evidence Code section 352 to exclude even relevant evidence if it determines the probative value of the evidence is substantially outweighed by its possible prejudicial effects.'" (People v. Jones (2017) 3 Cal.5th 583, 609.) The trial court's decision to admit or exclude evidence is reviewed for abuse of discretion and will not be disturbed unless it is shown the court acted in an arbitrary, capricious, or absurd manner that resulted in a miscarriage of justice. (People v. Young (2019) 7 Cal.5th 905, 931; see Cal. Const., art. VI, § 13; Evid. Code, §§ 353-354.)
3. Analysis.
The trial court did not abuse its discretion by admitting into evidence the pair of Chuck Taylor shoes discovered in defendant's bedroom and by permitting the prosecutor to argue as he did. The shoes satisfied the threshold requirement of relevance because they had some tendency to prove the issue of identity of the shooter. Ms. Mays testified defendant was wearing Chuck Taylor shoes the night they went to the Horny Toad. She also testified everyone in her family wore Chuck Taylor shoes, and that both she and defendant owned that style of shoes at the time of the shooting. Justin also testified defendant owned such a pair. There is no dispute that shoe impressions made by Chuck Taylor shoes were discovered near Miker and in the parking lot of the Horny Toad, and there is no dispute the impressions in both locations matched each other. The shoes worn by Miker did not match the impressions and, clearly, neither did the high heels worn by Ms. Mays.
Without a doubt, the shoes discovered in defendant's bedroom did not leave the shoe impressions, and it was disputed at trial whether the torn and worn shoes were wearable and, therefore, were the same pair defendant wore to the Horny Toad. But it was reasonable for the prosecutor to ask the jury to draw the inference that defendant owned another pair of Chuck Taylor shoes that he wore to the Horny Toad and that left the impressions there and near Miker. And a reasonable jury could draw such an inference. The fact the jury asked for a reread of the testimony about the shoe impressions demonstrates it spent some time on this issue. True, a reasonable jury could draw the opposite conclusion, but evidence need not lead to only one inference to satisfy the threshold requirement of relevancy.
"'Prosecuting attorneys are allowed "a wide range of descriptive comment" and their "'"argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom."'"'" (People v. Jackson (2016) 1 Cal.5th 269, 349.)
Moreover, the trial court did not abuse its discretion by concluding the shoes discovered in defendant's bedroom should not have been excluded under Evidence Code section 352. We should not be understood as concluding the shoes were highly relevant because the prosecutor's own expert testified the shoes did not leave the impressions. The prosecutor did not mislead the jury about this point during closing argument. Nonetheless, we cannot say the shoes were so marginally relevant that their admission caused defendant the type of prejudice contemplated by Evidence Code section 352. Was admission of the shoes damaging, meaning they tended to prove the prosecutor's case? Yes. But the shoes, by themselves, were not the type of evidence that would cause a jury to have an "emotional bias" against defendant. (Nguyen, supra, 61 Cal.4th at p. 1035.) Compared to the testimony about defendant's incriminating statements (for more about that, see post), the shoe evidence was mild.
And, even if we were to conclude the trial court should have excluded the shoes from evidence, we find no prejudice. Error in admitting evidence is harmless, and will not justify reversal of a conviction, unless it is reasonably probable defendant would have fared better absent the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) Even if the prosecution had been prohibited from introducing the shoes, it still introduced strong evidence that defendant wore Chuck Taylor shoes to the Horny Toad and that shoe impressions from Chuck Taylors were discovered in the parking lot and near Miker.
Defendant argues the shoe evidence was wildly speculative and prejudiced him because any number of people might have been wearing Chuck Taylor shoes at the Horny Toad, but the prosecution introduced other compelling physical and testimonial evidence from which the jury could reasonably conclude defendant was the shooter. Justin's testimony that defendant admitted he stopped at home to get a .380-caliber handgun and later shot Miker while his was relieving himself was corroborated by Miker's physical position on the ground, his partial state of undress and the wet spot near his feet, by the matching .380-caliber shell casings and cartridges found near Miker, and by the tire impressions found near Miker and at the Horny Toad that matched the rear tires of Ms. Mays's Honda. And, the testimony of witnesses who left the Horny Toad at the same time as defendant, Ms. Mays, and Miker, video evidence from the McDonald's drive-thru, and the McDonald's receipt discovered in the parking lot of the Horny Toad corroborated Justin's testimony that defendant said he gave Miker a ride from the saloon. On this record, we cannot conclude defendant would have received a better result if the shoes were excluded.
As defendant notes in his brief, by coincidence Rutledge was wearing a pair of black Converse shoes when he took the stand and testified, although Rutledge did not elaborate as to the model or style of Converse. But there was no testimony whatsoever that Rutledge, Trevino, the bartender, or anyone other than defendant was wearing Chuck Taylor shoes at the Horny Toad.
Because state law evidentiary errors generally do not rise to the level of federal constitutional error, we need not determine whether the error, if any, was harmless beyond a reasonable doubt. (People v. Samuels (2005) 36 Cal.4th 96, 114; People v. Benavides (2005) 35 Cal.4th 69, 91; see Estelle v. McGuire (1991) 502 U.S. 62, 70.)
C. The Trial Court Properly Limited Expert Testimony About Coercive Interrogation Techniques.
Defendant argues the trial court abused its discretion as a matter of state law when it limited Dr. Leo to testifying only about general principles about false confessions, and erred as a matter of federal constitutional law by denying defendant the right to present a full defense. Neither claim is well taken.
1. Additional facts.
In its trial brief, the People moved to preclude defendant from introducing Dr. Leo's testimony, contending (1) false confession theory was irrelevant to this case, it would confuse the jury, and it would invade the jury's exclusive role of determining witness credibility; (2) as a preliminary step to deciding whether Dr. Leo could testify, the trial court was required to conduct an Evidence Code section 402 hearing to determine whether there was any evidence the police used coercive tactics when they interviewed Ms. Mays and Justin; and (3) Dr. Leo was not a qualified expert to testify specifically about those witnesses' psychological responses to coercive interrogation because he was not a psychologist so, at most, he could generally testify about false confession theory.
In his motions in limine, defendant argued Dr. Leo was qualified to provide expert testimony because: he holds degrees of Masters of Arts (M.A.) in Sociology, Juris Doctor (J.D.), and a Doctor of Philosophy (Ph.D.) in jurisprudence and social policy; he has been qualified to testify nationwide as an expert witness in many criminal cases; and he has published extensively on the topics of police interrogations and coercive tactics. Defendant argued Dr. Leo would not testify that Justin's statements to police were false but would testify about general principles of psychology and interrogation that might lead to false and unreliable witness statements and address "the presence of these characteristics in the interrogation transcript and audio tape" to assist the jury in deciding whether Justin's statements were the product of coercion and suggestion. Defendant contended Dr. Leo's testimony was necessary to his defense, and exclusion of that testimony would violate his due process right to present a full defense. Defendant also moved in limine to strike entirely Ms. Mays and Justin's incriminating statements as having been obtained by the police through coercive interrogation.
At the hearing on Dr. Leo's proposed testimony about Justin's statement to police, the prosecutor argued the evidence was irrelevant and would confuse the jury because Justin would not deny he was coerced and would affirmatively testify his statements to police were true. The prosecutor anticipated Ms. Mays would deny the truth of her statements but argued Dr. Leo's testimony would still be irrelevant because the jury could figure out for itself whether she was telling the truth and did not need expert testimony to assist in that determination.
Defendant argued the credibility of Justin's statements was at issue because at first the police "treated him as a suspect or having some involvement" in the murder and made references to the death penalty, the interrogation lasted some time, and Dr. Leo's testimony would assist the jury in making a credibility finding. When the trial court pointed out Justin had never denied the truth of his statements, defense counsel replied, "He has every reason to lie if he is being considered by law enforcement and told that, that he is being thought of as being involved with my client or having some involvement with hiding evidence after." And counsel argued Justin had no incentive to testify at trial that he lied to police because he might be under renewed suspicion.
The court also pointed out that the published cases addressing admissibility of testimony about coercive interrogations mostly addressed confessions or inculpatory statements made by criminal defendants and not statements of third party witnesses. "[H]ow is Dr. Leo's testimony going to assist the jury with their fact-finding?" Defense counsel explained she would argue to the jury that Justin lied to police, and Dr. Leo's testimony would assist the jury in evaluating the circumstances of Justin's interrogation to determine whether it was coercive and might lead him to falsely implicate defendant. As for Ms. Mays, defense counsel argued the proposed testimony was still relevant because, although Ms. Mays's interrogation was "not as intense" as Justin's, she too was considered a suspect.
Ms. Mays testified under an immunity agreement with the prosecution.
The prosecutor responded Justin was never considered a suspect or treated like one during his interview. "They might have put pressure on him during the interview, but he wasn't a suspect, quote unquote." Ms. Mays was not a suspect in the murder either, but she was arrested for possession of cocaine when she consented to a search of her vehicle, which caused the police "to target their questioning." The prosecutor once again argued Dr. Leo's testimony was irrelevant and argued he could not testify to the ultimate fact that Justin lied to the police. The prosecutor also argued that, to the extent Dr. Leo's testimony had even a "modicum of relevance," the trial court should exclude it under Evidence Code section 352 because the testimony would unduly consume time at trial and would confuse the issues.
After hearing additional arguments, the trial court ruled Dr. Leo could testify generally about coercive interrogation techniques and statements but not "as to the ultimate issue as to whether that was a false statement or not." The court also granted the People's request for a hearing pursuant to Evidence Code section 402 "to see what exactly he's going to testify to."
At the hearing, Dr. Leo testified generally about false confession theory. He also testified he had reviewed the audio recordings and written transcripts of the interviews conducted of Ms. Mays and Justin. Dr. Leo testified he had observed the use of psychologically coercive interrogation techniques in Justin's interview. One technique that stood out for Dr. Leo was a discussion of the serious criminal consequences Justin might face, including the death penalty, "if he continued to deny the information that the investigator was seeking." The appeal to Justin's self-interest was an inducement and an example of the maximization/minimization technique. Dr. Leo opined the totality of the techniques used during Justin's interview had the potential to result in unreliable statements. With respect to Ms. Mays, Dr. Leo testified the police pressured her to say defendant was involved in the murder, but they did not use the same constant pressure or threats as they had with Justin. The police confronted Ms. Mays with video evidence and implicitly said her denials were lies. Although Dr. Leo testified Ms. Mays's interview was not psychologically coercive, she was vulnerable and gave in to pressure.
The trial court denied defendant's motion to suppress Ms. Mays and Justin's statements, and ruled Dr. Leo could testify generally about coercive interrogation techniques but could not testify specifically to examples of those techniques he observed were used during Ms. Mays and Justin's interviews.
Defendant does not challenge the merits of that order on appeal.
During closing argument, defense counsel argued Ms. Mays implicated defendant because she had everything to lose and had been held by police for 17 hours and questioned for three hours. Counsel argued Ms. Mays told the police what they wanted to hear so she could be released because she had been using cocaine daily and had mental health issues, and the police made "sure she knew if she didn't say it was him, it was her." Counsel did not address Justin's interrogation during closing argument.
2. Applicable law.
"Evidence Code section 801 'qualifies a matter as the proper subject for expert testimony if it is "sufficiently beyond common experience that the opinion of an expert would assist the trier of fact." That is not to say, however, that the jury need be wholly ignorant of the subject matter of the expert opinion in order for it to be admissible. [Citation.] Rather, expert opinion testimony "'will be excluded only when it would add nothing at all to the jury's common fund of information, i.e., when "the subject of inquiry is one of such common knowledge that [people] of ordinary education could reach a conclusion as intelligently as the witness."'"'" (People v. Dalton (2019) 7 Cal.5th 166, 236-237.)
"'The trial court has broad discretion in deciding whether to admit or exclude expert testimony [citation], and its decision as to whether expert testimony meets the standard for admissibility is subject to review for abuse of discretion.'" (People v. Jones (2013) 57 Cal.4th 899, 946.) Likewise, we review for abuse of discretion a trial court's ruling excluding proposed expert testimony under Evidence Code section 352. (People v. Linton (2013) 56 Cal.4th 1146, 1181 (Linton).)
Expert testimony about coerced and false confessions, or coerced and false witness statements, is only admissible if there is some evidence the police used coercive interrogation tactics to elicit the statement. For example, the defendant in People v. Son (2000) 79 Cal.App.4th 224 made statements to a third party and to the police that incriminated him in a murder. But, at trial, the defendant denied his guilt and testified he had falsely confessed to the police because his interrogator had promised he would be incarcerated for no more than one year. (Id. at pp. 228-229, 240.) After testifying, the defendant tried to admit the testimony of a sociologist who would testify about false confessions and would specifically address tactics used during the defendant's interrogation that wore him down and led to his confession. (Id. at pp. 240-241.) The appellate court affirmed a complete exclusion of the testimony because "there was no evidence that police engaged in tactics wearing down Son into making false admissions," so the proposed expert testimony was irrelevant and would not assist the jury in deciding whether the confession was false. (Id. at p. 241; accord, Linton, supra, 56 Cal.4th at pp. 1181-1183 [trial court did not abuse discretion by precluding expert testimony about coerced confessions, under Evid. Code, § 352, because there was "a dearth of evidence indicating a false admission or confession," and the proffered expert testimony was highly speculative and "had, at most, minimal probative value, which was substantially outweighed by its likely undue consumption of time."].)
And, even if there is evidence that coercive interrogation tactics were used to elicit the confession or witness statement, the trial court may exclude entirely or limit the scope of expert testimony about coerced and false confessions depending on whether the testimony will be of assistance to the jury in deciding whether the confession or statement was reliable. In People v. Page (1991) 2 Cal.App.4th 161 (Page), the defendant admitted to police that he murdered his girlfriend but later recanted. (Id. at pp. 170-176.) At trial, the defendant testified about his interrogation and that the details of his confession "were developed with the officers' help." (Id. at p. 178.) He introduced the testimony of a professor of psychology (the same Dr. Leo who testified in the current case) about factors that might lead a person to give an inaccurate statement during interrogation, but the trial court prohibited the professor from relating those principles to the defendant's statement and from opining on the reliability of the confession. (Id. at pp. 179, 183-184.)
On appeal, the defendant in Page argued the limitation on expert testimony about false confessions violated his federal constitutional rights to present a complete defense. (Page, supra, 2 Cal.App.4th at p. 184.) He relied primarily on Crane v. Kentucky (1986) 476 U.S. 683 (Crane), which held a state trial court violated the constitution by prohibiting a defendant, on relevancy grounds, from introducing testimony about the physical and psychological environment in which the defendant confessed to police to prove the confession was unreliable. (Id. at pp. 684, 690-691.) The high court concluded evidence about how the confession was obtained was relevant to the credibility and voluntariness of the confession. (Id. at p. 688.) Even if the trial court finds the confession was voluntary, evidence of how a confession was obtained "will often be germane to [the confession's] probative weight, a matter that is exclusively for the jury to assess." (Ibid.) Therefore, where a prosecution is based on the defendant's confession or incriminating statements, the defendant must be permitted to introduce evidence of the circumstances under which the confession or statements were secured. (Id. at p. 689.) However, the high court was careful to limit its holding: a blanket exclusion of evidence of how a confession was obtained violates a defendant's right to present a full defense, but trial courts retain "'wide latitude' to exclude evidence that is 'repetitive . . . , only marginally relevant' or poses an undue risk of 'harassment, prejudice, [or] confusion of the issues.'" (Id. at pp. 689-690.)
The Court of Appeal in Page distinguished Crane. "Here, the trial court permitted Page and the prosecutor to thoroughly explore the physical and psychological environment in which the confession was obtained. Among other things, the jury learned that: Page was questioned by two police sergeants, both of whom were thoroughly cross-examined on the method of interrogation; the police lied to Page to extract his confession; the officers made him feel guilty; Page took and failed a polygraph exam; and Page had only recently learned of [the victim's] death. The jury also knew Page's educational level and physical condition. With respect to the physical circumstances of the interrogation, the jury knew the size and layout of the interrogation room (through testimony and pictures), how long the interrogation sessions lasted, when Page ate, when he drank water, and used the restroom or the telephone. In short, the defense and prosecution painted a detailed picture of the physical and psychological circumstances of the interrogation." (Page, supra, 2 Cal.App.4th at pp. 185-186.)
In addition, the court noted the defendant himself testified and presented his own version of how the interrogation was conducted and how he was led to confess, and the trial court permitted the defendant's expert to testify generally about psychological factors that might cause a person to falsely confess. (Page, supra, 2 Cal.App.4th at p. 186.) "In short, the restriction on [expert] testimony is a far cry from the 'blanket exclusion' of evidence the Supreme Court faced in Crane. Unlike Crane, Page was not 'stripped of the power to describe to the jury the circumstances that prompted his confession.' (Crane, supra, 476 U.S. at p. 689 . . . .) In the present case, that power was, at most, marginally curtailed." (Page, at p. 186.) "The restrictions imposed by the court merely affected the way the defense could link the theories presented by the expert to the evidence introduced at trial. It did not prevent it from making that connection." (Id. at p. 187.)
Page also rejected the defendant's argument that the trial court erred as a matter of state law by limiting the expert's testimony. Trial courts have wide discretion to admit or exclude expert testimony. (Page, supra, 2 Cal.App.4th at p. 187.) Analogizing the case before it to People v. McDonald (1984) 37 Cal.3d 351 (overruled on a different ground in People v. Mendoza (2000) 23 Cal.4th 896, 914), the court found no error. In McDonald, the California Supreme Court held a trial court abused its discretion by excluding all expert testimony about psychological factors that bear on the accuracy of eyewitness identifications. But, it strongly suggested the trial court could have limited such testimony to general principles. (Id. at pp. 370-371.) The Page court found "nothing in McDonald or the Evidence Code required the court to permit [the expert] to discuss the particular evidence in this case or to give his opinion regarding the overall reliability of the confession." (Page, at p. 188.)
Moreover, the Page court noted, "as Page himself admits, an expert witness may so thoroughly educate a jury regarding applicable general principles that 'the factual issues in the case become ones that the jurors can answer as easily as the expert.' In other words, an expert's thorough description of the general principles to be applied in a given case may make additional (and more specific) expert testimony superfluous. [Citations.] In such a case, '"[t]here is no necessity for [additional expert] evidence, and to receive it would tend to suggest that the judge and jury may shift responsibility for decision to the witness[]."'" (Page, supra, 2 Cal.App.4th at pp. 188-189.) The expert "outlined the factors which might influence a person to give a false statement or confession during an interrogation. Having been educated concerning those factors, the jurors were as qualified as the [expert] to determine if those factors played a role in Page's confession, and whether, given those factors, his confession was false." (Id. at p. 189.)
And, in People v. Ramos (2004) 121 Cal.App.4th 1194 (Ramos), the defendant was interviewed by a detective for five to seven minutes and admitted he was at a party where shots were fired at an occupied motor vehicle, but he claimed the shots were fired by a rival gang. (Id. at 1200.) The detective then separately interviewed the defendant's former friend and fellow gang member, who implicated the defendant in the shooting. (Ibid.) After being confronted with the incriminating information, and after being told his cooperation would benefit him in the judicial process, the defendant changed his story. In a written statement and videotaped interview, the defendant admitted he had pointed a handgun at people leaving the party and pulled the trigger, but the gun did not fire. (Ibid.) At a hearing to suppress his statement as involuntary, the defendant testified the detective had promised he would serve no more than one year in jail if he made a written statement; threatened defendant would serve life in prison if he did not make a written statement; and ignored defendant's repeated requests to speak to an attorney. (Id. at p. 1201.)
The trial court in Ramos denied the defendant's pretrial motion to suppress his statement as involuntary, and preliminarily sustained the prosecutor's objection to the defendant's request to introduce the testimony of Dr. Leo (an expert witness) as speculative because there was no evidence the defendant's confession was false. But the court indicated it might revisit the ruling if such evidence came in at trial. (Ramos, supra, 121 Cal.App.4th at pp. 1201, 1204.) The defendant thereafter told the trial court his mother would testify that twice in her presence the detective promised leniency, and an associate of defendant would testify defendant's former friend "wanted to send [the defendant] a message he would go to prison for life if he did not give [the detective] the evidence he wanted." (Id. at pp. 1204-1205.) The trial court again sustained the prosecutor's objection and ruled Dr. Leo's proposed testimony was speculative. (Id. at p. 1205.)
On appeal, the appellate court rejected the claim that the trial court violated the defendant's right to present a full defense. The court distinguished the case before it from Crane because "the trial court made no similar blanket exclusion in this case." (Ramos, supra, 121 Cal.App.4th at p. 1206.) The court noted the defendant cross-examined the detective extensively about the interrogation techniques used in defendant's interview and the interviews of other witnesses; defendant introduced testimony that the detective threatened him and other witnesses and tried to coerce them to make incriminating statements; and the jury was aware of the circumstances of the defendant's interrogation by viewing the videotaped interview. (Ibid.) "Thus, this is not a case like Crane where the defense was not permitted to attack the reliability of the defendant's statement." (Ibid.; accord, Linton, supra, 56 Cal.4th at pp. 1183-1184 [not only did trial court not abuse discretion by excluding expert testimony about false confessions as speculative and prejudicial, ruling was not a "blanket exclusion" as in Crane because defendant introduced evidence and testimony from other experts about the circumstances of his interrogations and strenuously argued to the jury his confession was false and unreliable].)
The Ramos court also rejected the defendant's reliance on Page for the proposition that Dr. Leo should have been permitted to testify generally about factors that might lead to a false confession. (Ramos, supra, 121 Cal.App.4th at p. 1206.) The court noted the interrogation in Page "was substantially more complex," and the defendant in that case testified about the circumstances and length of the interrogations, so "the expert testimony in Page was responsive to the defense claim that the circumstances of the interrogation, which included inaccurate information from an authority figure, can cause an individual under stress to feel guilty and vulnerable to suggestion." (Id. at pp. 1206-1207.) In contrast, the detective in Ramos did not misrepresent the state of the evidence to the defendant, did not make him take a polygraph test, and did not question him repeatedly over an extended time. (Id. at p. 1207.) Therefore, the defendant had not established the need for Dr. Leo's testimony. "Because the jury could understand and evaluate all the evidence presented at [the defendant's] trial without the assistance of an expert on police interrogation," the appellate court found no abuse of discretion. (Ibid.)
3. Analysis.
The record contains evidence in the form of Ms. Mays's live recantation and description of her interview from which a jury could have concluded her statements to the police that defendant admitted shooting Miker were potentially coerced and false and, therefore, that she was not a reliable witness. And, there is some weaker evidence in the record that Justin was pressured into telling the police that he had a conversation with defendant the morning defendant washed Ms. Mays's car, during which defendant admitted to shooting Miker.
The jury was properly instructed with CALCRIM No. 105 on how to evaluate witness credibility.
Unlike in Ramos, the trial court admitted Dr. Leo's expert testimony about the general principles of coercive interrogation techniques and gave defendant the opportunity to argue to the jury that Justin and Ms. Mays's statements were coerced and false (although he only used that opportunity to argue Ms. Mays lied to the police). The only issue is whether the trial court was mandated, as a matter of state law or federal constitutional law, to permit defendant to introduce testimony from Dr. Leo specifically tying those general principles to Justin and Ms. Mays's interviews.
This case is like Page. As set forth ante (see § III.B), Dr. Leo testified extensively about coercive interrogation techniques, the inherent risks associated with the use of those techniques, and the members of the population who are most vulnerable to such techniques and who are most likely to give false and unreliable statements under the stresses and pressures of coercive interrogation. Moreover, defendant had the opportunity to cross-examine Justin and Ms. Mays about their interviews and to attempt to undermine their credibility as witnesses. (See, ante, § III.A.5.) In other words, defendant was permitted to introduce generalized testimony about coercive interrogations and was able to "thoroughly explore" whether Justin and Ms. Mays's statements to police were coercively obtained and, therefore, were unreliable and unworthy of belief. (Page, supra, 2 Cal.App.4th at p. 185; see Ramos, supra, 121 Cal.App.4th at p. 1206.)
Although the trial court denied defendant the opportunity to have Dr. Leo testify specifically about Justin and Ms. Mays's interviews and to connect the dots for the jury, it did not prevent defendant from doing so in his closing argument. In other words, as in Page, the limitation on Dr. Leo's testimony was not a "'blanket exclusion,'" and defendant "was not 'stripped of the power to describe to the jury the circumstances that prompted" Justin's and Ms. Mays's statements to the police. (Page, supra, 2 Cal.App.4th at p. 186, quoting Crane, supra, 476 U.S. at p. 689.) Instead, "that power was, at most, marginally curtailed." (Page, at p. 186.) And, because the jury had before it evidence tending to show Ms. Mays and perhaps Justin gave their statements under the pressure of coercive interrogation, and the jury was thoroughly educated by Dr. Leo about coercive interrogation techniques and the risks associated with their use, the jury was as well qualified as Dr. Leo to judge the credibility of those statements, and the trial court correctly concluded additional expert testimony was unnecessary. (Id. at pp. 188-189.)
Finally, we reject defendant's reliance on Chambers v. Mississippi (1973) 410 U.S. 284 (Chambers) and other federal cases in support of his claim that the limitation on Dr. Leo's testimony violated his Sixth and Fourteenth Amendment rights to present a full defense. "In Chambers . . . the high court held the exclusion of testimony regarding a third party's confession to the crime for which the defendant was being prosecuted violated the defendant's constitutional right to present witnesses in his own defense. In the court's view, '[t]he testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers' defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice.' (Id. at p. 302 . . . .)" (People v. Lightsey (2012) 54 Cal.4th 668, 715-716.)
Defendant also relies on decisions from the lower federal courts, but we are not bound by them. (People v. Johnson (2015) 61 Cal.4th 734, 763, 782; Linton, supra, 56 Cal.4th at p. 1182, fn. 8.)
In any event, the main lower federal court decision defendant cites—Alcala v. Woodford (9th Cir. 2003) 334 F.3d 862—is easily distinguishable. There, the Ninth Circuit granted habeas corpus relief to a state prisoner who had been completely denied the opportunity to introduce expert testimony that a key prosecution witness's "knowledge of the murder may have been the product of suggestive interview techniques." (Id. at p. 868.) In stark contrast, there was no blanket denial in this case because defendant was permitted to introduce testimony from Dr. Leo on the general principles of false confessions and false witness statements and to introduce evidence that called into question the reliability of Justin and Ms. Mays's statements.
Likewise, defendant's citation to U.S. v. Hayat (E.D. Cal. Jan. 11, 2019, No. 2:05-cr-0240 GEB DB) 2019 U.S. Dist. Lexis 5781, in his opening brief is misplaced. There, a magistrate judge recommended a federal prisoner's motion to vacate, set aside, or correct his sentence should be granted because, inter alia, the prisoner's trial attorney rendered IAC by not procuring an expert witness to testify about false confessions. (Id. at pp. *2, *95-*103, *200-*201.) For obvious reasons, defendant cannot make a similar IAC claim in this case. But, more importantly, since defendant filed his opening brief in this appeal, the district court in Hayat adopted the magistrate's finding and recommendation that the prisoner's motion should be granted on a separate ground, but it expressly rejected the finding and recommendation that the attorney's representation was deficient because he failed to procure a false confession expert. (U.S. v. Hayat (E.D. Cal. July 30, 2019, No. 2:05-cr-240-GEB) 2019 U.S. Dist. Lexis 126970, *32-*36, *53.)
But, the high court has limited the reach of Chambers and similar cases. "In Chambers, we found a due process violation in the combined application of Mississippi's common law 'voucher rule,' which prevented a party from impeaching his own witness, and its hearsay rule that excluded the testimony of three persons to whom that witness had confessed. See Chambers v. Mississippi, 410 U.S. at 302. Chambers specifically confined its holding to the 'facts and circumstances' presented in that case; we thus stressed that the ruling did not 'signal any diminution in the respect traditionally accorded to the States in the establishment and implementation of their own criminal trial rules and procedures.' 409 U.S. at 302-303. Chambers therefore does not stand for the proposition that the accused is denied a fair opportunity to defend himself whenever a state or federal rule excludes favorable evidence." (United States v. Scheffer (1998) 523 U.S. 303, 316, italics added.) "Rather, due process considerations hold sway over state evidentiary rules only when the exclusion of evidence 'undermine[s] fundamental elements of the defendant's defense.'" (Fry v. Pliler (2007) 551 U.S. 112, 124, quoting Scheffer, at p. 315; see Nevada v. Jackson (2013) 569 U.S. 505, 509 ["Only rarely have we held that the right to present a complete defense was violated by the exclusion of defense evidence under a state rule of evidence."].)
And, as already noted, Crane itself recognized that only a "blanket exclusion" of evidence about the circumstances under which a confession is obtained will violate a defendant's federal constitutional rights, and state trial courts retain "'wide latitude'" to impose reasonable limits on admission of evidence. (Crane, supra, 476 U.S. at pp. 689-690.) To repeat, there was no blanket denial of defendant's ability to present evidence and argument to undermine the credibility of Justin and Ms. Mays's statements to the police. The reasonable limitation placed on Dr. Leo's testimony simply did not deny defendant the right to present a full defense.
D. There Was No Cumulative Error.
Defendant argues the evidentiary errors, even if not individually prejudicial, had the cumulative effect of denying him the right to a fair trial. "Cumulative error is present when the combined effect of the trial court's errors is prejudicial or harmful to the defendant. [Citations.] Although a defendant is entitled to a fair trial, he or she is not entitled to 'a perfect one.' [Citation.] Even though the cumulative error rule recognizes the value in the efficient administration of justice, it does not elevate it above the protection of individual rights." (People v. Capers (2019) 7 Cal.5th 989, 1017.)
Because we have concluded any error in admission of Dr. Wallis's conditional examination testimony was harmless beyond a reasonable doubt, and we have rejected defendant's remaining claims of evidentiary error on the merits, there is no cumulative error. (See People v. Wall (2017) 3 Cal.5th 1048, 1072 ["Because we have found only a single error and we have determined it was harmless, there is no prejudice to cumulate."].)
E. Defendant's Restitution Fine Must Be Modified and his Parole Revocation Restitution Fine Must Be Stricken.
Finally, defendant argues, and the People concede, the trial court erred by imposing a $300 parole revocation restitution fine because he was sentenced to LWOP and, by definition, he is not eligible for parole. We agree. In addition, on our own motion, we will modify defendant's restitution fine to reflect the minimum fine applicable at the time of his offense.
"In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record." (Pen. Code, § 1202.4, subd. (b).) "The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense." (Id., subd. (b)(1).) The statute sets forth the minimum and maximum fine available. (Ibid.) In addition, the court must impose a parole revocation restitution fine in the same amount as the restitution fine in every case where a defendant's sentence "includes a period of parole." (Pen. Code, § 1202.45, subd. (a).)
The court ordered defendant to pay a $300 minimum parole revocation restitution fine, and suspended its imposition "unless parole is revoked." But, "[a] parole revocation fine may not be imposed for a term of life in prison without possibility of parole, as the statute is expressly inapplicable where there is no period of parole." (People v. Jenkins (2006) 140 Cal.App.4th 805, 819, citing People v. Oganesyan (1999) 70 Cal.App.4th 1178, 1183; see Pen. Code, § 1202.45, subd. (a).) Because by definition defendant's sentence of LWOP does not include a period of parole, we shall strike his parole revocation restitution fine.
Moreover, we must modify defendant's restitution fine. When it sentenced defendant, the trial court ordered him to pay a restitution fine in "the minimum amount of $300." That amount corresponded to the minimum restitution fine applicable on the date of sentencing. (Pen. Code, § 1202.4, subd. (b)(1); Stats. 2017, ch. 101, § 1, eff. Jan. 1, 2018.) But on the date of defendant's offense, the minimum victim restitution fine was $280. (Pen. Code, former § 1202.4, subd. (b)(1); Stats. 2012, ch. 873, § 1.5.) "It is well established that the imposition of restitution fines constitutes punishment, and therefore is subject to the proscriptions of the ex post facto clause and other constitutional provisions." (People v. Souza (2012) 54 Cal.4th 90, 143.) A trial court violates the ex post facto clause if it imposes a restitution fine in the minimum or maximum amount applicable at the time of sentencing instead of a lesser amount applicable at the time of the offense. (Ibid.) We have inherent authority to correct an unauthorized sentence. (People v. Smith (2001) 24 Cal.4th 849, 852.) Therefore, we will modify defendant's restitution fine to reflect the minimum amount of $280 applicable at the time of his offense.
V.
DISPOSITION
The $300 restitution fine imposed at sentencing is corrected to reflect the minimum $280 fine applicable at the time of his offense, and the $300 parole revocation restitution fine is hereby stricken. On remand, the superior court clerk shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. RAPHAEL
J.