Opinion
A128082
12-21-2011
THE PEOPLE, Plaintiff and Respondent, v. JESSE WILLIAM MENDEZ, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County
Super. Ct. No. C158737)
A jury convicted Jesse William Mendez of attempted murder of a peace officer (Pen. Code, §§ 187, subd. (a), 664), illegal possession of a firearm by a felon (§ 12021, subd. (a)(1)), and discharging a gun from a motor vehicle (§ 12034, subd. (d)). Mendez argues: (1) that the trial court erroneously excluded certain out-of-court statements as hearsay, thereby violating his Sixth Amendment confrontation rights; (2) that the trial court abused its discretion when it denied his request for a continuance, thereby violating his rights to due process and compulsory process; (3) that his trial counsel provided ineffective assistance; and (4) that the cumulative impact of the alleged errors requires reversal. Mendez also asks us to independently review the trial court's in camera proceedings, conducted pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess),to determine whether the trial court abused its discretion by withholding discoverable police personnel records. The People contend the trial court erred by staying Mendez's prison term for discharging a gun from a motor vehicle. We affirm.
Unless otherwise noted, all further statutory references are to the Penal Code.
Mendez has also filed a petition for writ of habeas corpus and request for judicial notice (No. A133724). By separate order, we grant the request for judicial notice and deny the habeas petition.
I. FACTUAL AND PROCEDURAL BACKGROUND
Mendez was charged, by information, with attempted murder of a peace officer (§§ 187, subd. (a), 664; count one), possession of a firearm by a felon (§ 12021, subd. (a)(1); count two); and discharging a weapon from a motor vehicle (§ 12034, subd. (d); count three). It was alleged that the attempted murder was willful, deliberate, and premeditated (§ 664, subds. (e), (f)) and that Mendez, in counts one and three, personally used and intentionally discharged a firearm, causing great bodily injury (§§ 12022.5, subd. (a), 12022.7, subd. (a), 12022.53, subds. (b), (d)). Finally, it was alleged that Mendez had suffered a prior conviction for the sale, offer to sell, or transportation of a controlled substance (Health & Saf. Code, § 11352, subd. (a)).
Prior to trial, Mendez made a so-called Pitchess motion seeking discovery of potential impeachment information from the personnel records of four investigating officers. Following an in camera hearing, the court granted the motion with respect to three officers (Sergeant D. Longmire, Sergeant R. Wingate and Officer S. Millington.). The motion was apparently denied as to Sergeant T. Jones. Prosecution's Evidence
We say apparently because Jones's name is struck through in the court's protective order issued after the hearing. As we discuss post, Mendez fails to provide us with the full record of this proceeding.
The Shooting
Oakland Police Officer Kevin McDonald testified that, shortly after midnight on May 19, 2007, he was on traffic duty, riding his motorcycle in full uniform, in East Oakland on 77th Avenue near MacArthur Boulevard. McDonald saw an older style, yellow Camaro run a stop sign. He followed the Camaro, going northbound on 77th Avenue and then made a right turn onto McArthur Boulevard. McDonald observed two people in the front seat of the car. He turned on his red light, his flashing lights, and his siren.
The Camaro eventually stopped, after making a turn onto Parker Avenue. McDonald stopped his motorcycle behind the Camaro at the intersection of Parker and MacArthur. There were streetlights illuminating the area, including one directly overhead. McDonald got off his motorcycle and was having difficulty attempting to retrieve his flashlight from his duty belt. McDonald also paused to disconnect the wire running from his helmet to the motorcycle's radio.
When McDonald approached the Camaro, he saw the driver had turned so that his face was in the open driver's window and he was looking back at McDonald. The street lamp illuminated the driver's face. McDonald could see the silhouette of the passenger, but could not see what the passenger was doing. McDonald continued to watch the driver and fumble for his flashlight as he approached the vehicle. He did not see any movement from the passenger.
When McDonald arrived at the driver's door, and before he was able to ask the driver for his license and registration, McDonald heard two gunshots and saw muzzle flash in the driver's lap area. He did not see a hand or the gun. McDonald felt the first bullet strike him in the center of his chest, where it lodged in his protective vest. The second shot went through his left pinkie finger. The passenger was not in McDonald's view when he was shot. But, McDonald testified that he never saw the passenger lean forward, across the driver's body, or into the driver's seat.
After McDonald was shot, he began to retreat to the back of the vehicle, to put the vehicle between himself and the shooter. The driver was still looking out of the vehicle, but McDonald could not tell what the passenger was doing. McDonald testified: "It looked like the driver was raising his [right] arm up with the gun as I was retreating." McDonald heard two more shots fired and turned to duck. McDonald pulled out his service weapon, but by that time the Camaro was fleeing southbound down Parker. Eventually, McDonald lost sight of the Camaro.
McDonald radioed for help. He said he had been shot by a white male and gave a description of the Camaro and the direction it had headed. After other officers responded to the scene, an ambulance arrived and transported McDonald to the hospital. As a result of the shooting, McDonald suffered internal and external bruising to his chest and nerve damage to his hand. He continues to experience pain and suffers occasional nightmares. He was off work for three months after the shooting.
At trial, McDonald identified Mendez as the driver of the Camaro and the person who shot him. He also indicated that Mendez wore his hair in corn rows at the time of the shooting. He also testified that all of the shots fired came from the driver's side window and that none of the shots fired came from anywhere else in the vehicle. McDonald testified: "The only one that could have had a shot is the driver. If the passenger was leaning forward in order to get that shot, I would have seen that." McDonald was asked: "[A]re you certain that Mr. Mendez is the person who shot you?" He responded: "Yes, I am."
The Police Investigation
Oakland Police Officer Kevin Reynolds was also on traffic duty on May 19, 2007, in the vicinity of 77th Avenue and MacArthur Boulevard. Reynolds did not witness the shooting, but heard a series of two to three gunshots, a pause, and then another two to three gunshots coming from the area where he had seen McDonald make a traffic stop. Reynolds responded to the scene and found McDonald on the ground, just north of his motorcycle. McDonald told Reynolds that the shooter was "a male white driving a '70's Chevy Camaro that was yellow [and] in poor condition . . . ." McDonald advised Reynolds that the Camaro went south on Parker. Reynolds passed this information along to other officers in the area. Officers canvassed witnesses and set up a perimeter to contain the scene and the suspect.
An evidence technician also responded to the scene of the shooting, but recovered no bullet casings. One bullet slug was located on the sidewalk. A fragment of a bullet was found on MacArthur Boulevard, in a gutter. A bullet hole was located in an exterior panel of a house at 7850 MacArthur. A bullet was found inside the house. Another bullet slug was located inside the trauma plate of McDonald's protective vest.
An unoccupied vehicle matching McDonald's description was found two blocks south of the shooting scene, at Garfield and Parker. Mendez's identification card was found inside the glove compartment and turned over to Officer Pope. Four bullet casings were found on the driver's side of the car—three were found on the driver's side floorboard and another was found in the left-front door well.
A firearms expert examined the bullet fragments found at the scene and determined that they were all fired from the same gun. He also examined the casings and determined that they were all fired from the same gun. All of the bullets and casings were nine-millimeter and could not have been fired from a .22-caliber revolver. He determined that a Lorcin semi-automatic pistol was likely the firearm used. Casings are ejected from the right on such a gun. How the gun is held will, of course, impact where the casings end up.
Sergeant Barry Hofmann showed Mendez's identification card to McDonald at the hospital. Hofmann testified that McDonald looked at the card and said " 'Yeah, that's the guy.' " Hofmann then broadcast Mendez's name over the radio and gave a physical description, including the fact that he had long brown hair. McDonald did not recall being shown any other photographs of Mendez while he was at the hospital.
Oakland Police Sergeant Tony Jones testified that he was the primary investigator on the case. On May 19, 2007, between 4 and 5 a.m., Jones received information "that the officers had an informant, a citizen informant, which essentially is a citizen who wants to remain anonymous but they want to give information, that saw the suspect hide underneath 2635 [Parker] after the shooting."
Jones did not have a name for the informant, but did receive a .22 caliber revolver from him. Jones testified: "He was given my number by Sergeant Wingate and he called me. . . . I figured if we ever needed him, Wingate could just call him. But the person didn't want to get involved. There isn't much I could do if a person doesn't want to get involved like that."
Police located Jeremiah Dye under the house. Dye was ultimately shot and killed by an Oakland police officer. Dye had long hair that was pulled back in a ponytail. Jones could not remember whether a gunshot residue test taken from Dye had been analyzed.
Sergeant Richard Andreotti testified that he attended the Dye autopsy. He observed a gunshot wound to Dye's left ear hole. He also observed scrapes, handcuff marks on Dye's wrists, and a dog bite.
Jones testified that, at the time the informant's report was received, he already had Mendez's name from the identification found in the car. Although Mendez was identified as the suspect on May 19, he was not arrested until approximately two weeks later, in Sacramento. Mendez's head had been shaved.
On direct examination by the prosecutor, Jones was asked: "[I]n this particular case did you receive any information or leads that pointed to anyone else as the suspect in this case other than Mr. Mendez?" He was also asked "And are you aware of any physical evidence that points in any direction other than to Mr. Mendez as a suspect in this case?" Jones responded "No" to both questions.
Independent Identification
Tomeka Harper testified that, on May 19, 2007, a little after midnight, she was driving on Parker towards MacArthur. When she stopped at the intersection she saw a police officer on a motorcycle pulling over a yellow Camaro. She saw two people in the front seat of the car. She described the driver as follows: "He lookeded [sic] like he was mixed. It looked like he had long hair. It was pulled back in a ponytail, and he had on like a . . . gray, black and white like camouflage jacket." Harper said the driver was not wearing his hair in dreadlocks or corn rows. At trial, Harper identified Mendez as the driver of the Camaro. She remembered the intersection being well-lit. She had not been drinking that night and was paying close attention because she "was being nosy."
A black, white, and gray sweatshirt was found in the Camaro.
After Harper turned right onto MacArthur, she lost sight of the Camaro and the officer. She stopped at a liquor store about a block away and then heard gunshots. She drove her car back to Parker and MacArthur, parked her car, and gave a statement to police. Later, Harper was driven by police to the Camaro parked on Garfield. She identified it as the same car she saw the officer stop. She also identified Mendez, as the driver of the Camaro, from a photographic lineup. She did not see the passenger as well, but testified that he may have been wearing a white t-shirt and "could have been mixed race or white."
Testimony of Andre Stovall
Andre Stovall testified that he has known Mendez for "some years." He said that during the late evening of May 18, 2007, and early morning of May 19, 2007, Stovall was drinking with friends around 72nd Avenue. Mendez arrived, in "an older model car . . . [¶] . . . [¶] [w]ith some Mexican dude" who may have been Mendez's cousin. Both Mendez and his cousin wore their hair slicked back and in ponytails. They all were "hanging out" and drinking "most likely tequila."
Stovall testified: "I had a gun and I showed it to [Mendez], you feel me? And his cousin, or whoever he was, had one and he showed it to me . . . . I looked at it and gave it back to him and he gave it back to his cousin." Stovall saw Mendez the next day. Mendez looked like he had his hair cut since Stovall saw him the night before. Mendez asked to use Stovall's phone and Stovall let him.
Stovall did not remember Mendez saying anything about shooting at police. Stovall conceded, however, that he had previously given a taped statement to police, on May 30, 2007. He testified, however, that he did not remember what he had told police. Stovall's taped police statement was played for the jury. On that taped statement, Stovall said Mendez was with the group on 72nd Avenue the evening before the shooting. Stovall saw someone hand a gun back to Mendez. Stovall said: "We was talkin' 'bout was [Mendez] really Caucasian. He a light Mexican." They said "that [Mendez] was a white boy. And he don't ever get pullt [sic] over by the police cuz he a white boy." In response, Mendez said: "he'ud [sic] get down—he said . . . he'ud [sic] shoot if the police pullt [sic] him over." Stovall also told police that when he saw Mendez the following day, Mendez's hair was cut and Mendez said "he got pullt [sic] over and he shot at the police."
On cross-examination, Stovall testified that he only made the above statement to police after they threatened to make a negative report to his parole officer. Stovall said: "I told [the police] some stuff they wanted to hear because I wanted to go home." Stovall testified that Mendez never said he had shot a police officer. However, he did not lie about Mendez getting a haircut.
Stovall conceded that it was not good to be known as a snitch in his neighborhood. Defense Evidence
Joel Gay testified that he grew up in the same neighborhood as Mendez. On May 18, 2007, Gay had been on 72nd Avenue drinking and smoking marijuana with others. At one point, Mendez arrived and drank with the group. Gay testified that, after the shooting, about 20 Oakland police officers came to his house, handcuffed him, and took him in for questioning. Gay testified that he was threatened and coerced by police to make incriminating statements about Mendez. He said that the officers took three different statements from him, but only recorded the last one. Gay said that he first told officers that he had never seen Mendez with a gun because that was the truth. But, Gay said: "I was directly told to say that I saw Jesse with a gun." At trial, Gay said that Mendez never told him that he had shot an officer. Gay filed an internal affairs complaint regarding Sergeant Longmire.
On cross-examination, Gay testified that Mendez came by his house the day after the shooting. Mendez told Gay: " 'Man, I'm kind of hot, man. I need you to do something for me. [¶] . . . [¶] Let me get some money.' " Gay did not ask Mendez what he meant. But, he did give him "enough [money] to get a room." The prosecutor also played Gay's taped police statement for the jury. During the taped statement, Gay told officers that he had seen Mendez the night of the shooting, that Mendez had a gun, and that Mendez said he was going to shoot if he was pulled over by police. Gay also told police that Mendez came to his house the next day and said: " 'Soon as I got to 77th and Mac, a motorcycle come, whoooop! I pulled over—license and reg—PAH PAH PAH PAH POP.' "
Oakland Police Officer Lesa Leonis testified that she was on patrol, on May 19, 2007, and responded to Garfield and Parker. She testified that Officer Pope gave her a wallet-sized photograph of a male adult and a child. She and Officer Jiminez took the photo to the hospital and showed it to McDonald. McDonald was "unsure" whether the photograph showed the shooter. Leonis testified that she did not recognize anyone in court that was in the photograph. She remembered only that it showed a "light complected" male. She was not sure what happened to the photograph.
Jones did not recall ever seeing a photo of Mendez with a small child.
Officer John Fukuda and Officer Jamin Creed both testified that they responded to 2635 Parker, on May 19, 2007. While he was at 2635 Parker, Fukuda heard someone yell " 'Oakland police, show me your hands,' " and then, within a matter of seconds, Fukuda heard a gunshot. Creed took a gunshot residue test sample from the body of Jeremiah Dye.
Sergeant James Rullamas was Jones's partner in the investigation of the shooting of McDonald. At approximately 5:00 a.m. on May 19, 2007, he responded to the 2600 block of Parker because of a report that "the suspect was in custody." When he arrived "the suspect [was] still on the ground" but was deceased. Jones was also present.
The parties stipulated that Mendez had suffered a felony conviction in 1999.
Closing Arguments
In his closing argument, Mendez's trial counsel conceded that Mendez was driving the Camaro, but argued that the People had not proved, beyond a reasonable doubt, that he was the shooter. In support, Mendez's trial counsel pointed to the missing photograph of a man with a small child, the lighting conditions at the scene of the shooting, McDonald's preoccupation with his flashlight, and the physical location of the bullets and casings—in the hopes of discrediting McDonald's testimony and pointing the finger at the passenger. Mendez's trial counsel also argued, without objection: "[S]omeone said that they had seen the shooter exit the vehicle down on Parker. This is an anonymous informant. . . . [H]e also observed that person go underneath a house at 2635 Parker Avenue. And of course this raises the next major question in this case, and that is the obvious question, is the shooter under that house? Yes, he was. That was Jeremiah Dye." In rebuttal, the prosecutor responded: "Who came in here and said the dead guy under the house was even in the car? Not one person."
Verdict and Sentence
The jury convicted Mendez of all three counts. The jury found the allegations of personal and intentional discharge of a firearm true, but found the great bodily injury and premeditation allegations "not true." Mendez was sentenced to a term of life with the possibility of parole, plus 23 years. The court imposed and stayed a term on count three, pursuant to section 654. Mendez filed a timely notice of appeal.
Given the finding on premeditation, the jury apparently did not credit either Stovall's or Gay's taped police statements. Accordingly, we do not consider any evidence from those statements in weighing the prejudicial effect of any error on appeal. We also do not describe their allegations of threatening and coercive police conduct in any detail.
II. DISCUSSION
Mendez asks us to conduct an independent review of the trial court's in camera proceedings, conducted pursuant to Pitchess, supra, 11 Cal.3d 531, to determine whether the trial court abused its discretion by withholding discoverable personnel records. Mendez also argues: (1) that the trial court erroneously excluded certain out-of-court statements as hearsay, thereby violating his Sixth Amendment confrontation rights; (2) that the trial court abused its discretion when it denied his request for a continuance, thereby violating his rights to due process and compulsory process; (3) that his trial counsel provided ineffective assistance; and (4) that the cumulative impact of the alleged errors requires reversal. The People contend the trial court erred by staying Mendez's prison term for discharging a gun from a motor vehicle. We address each argument in turn. A. Pitchess Discovery
Mendez asks us to independently review the trial court's in camera Pitchess proceedings to determine whether the trial court abused its discretion by withholding discoverable personnel records. Ordinarily, a trial court's decision on the discoverability of material in police personnel files is reviewed for abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.) We are unable to conduct such a review in this case, however, because Mendez has not provided us with the reporter's transcript from the Pitchess hearing, the sealed reporter's transcript from the in camera review, or the sealed personnel records submitted for in camera review. The record before us contains only the moving and opposition papers, the clerk's docket and minutes from the Pitchess hearing, and a copy of a "protective order for records ordered disclosed pursuant to Pitchess motion." Mendez has not sought to augment or correct the record on appeal. Because Mendez has provided an inadequate record, we deem his Pitchess argument forfeited and do not address it further. (See People v. Barton (1978) 21 Cal.3d 513, 519-520 [appellant's duty to provide record adequate for review]; Wagner v. Wagner (2008) 162 Cal.App.4th 249, 259 ["absence of a record concerning what actually occurred at the hearing precludes a determination that the court abused its discretion"].) B. Exclusion of Evidence We next address Mendez's contention that the trial court erred by excluding, on hearsay grounds, evidence concerning the out-of-court statements of the unidentified informant relating to the presence of "the suspect" under the house at 2635 Parker. Mendez also argues here that the trial court's exclusion of the out-of-court statements, violated his right to confront the witnesses against him, under the Sixth Amendment of the U.S. Constitution.
The clerk's docket and minutes from the date of the hearing state that a Pitchess motion was "granted" and indicate that a reporter was present. The docket and minutes also provide: "Order signed by Court. Court conducts in-camera hearing. Court orders declaration sealed. Compliance Date: 1/30/09."
" 'Hearsay evidence' is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. . . . Except as provided by law, hearsay evidence is inadmissible." (Evid. Code, § 1200, subds. (a), (b).) We review a trial court's ruling on the admissibility of evidence for abuse of discretion. (People v. Pirwani (2004) 119 Cal.App.4th 770, 787; People v. Ortiz (1995) 38 Cal.App.4th 377, 386.) "No judgment shall be set aside . . . on the ground of . . . the improper admission or rejection of evidence, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage ofjustice." (Cal. Const., Art. VI, § 13.)
"[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.' [Citation.]" (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680.) "[T]he constitutionally improper denial of a defendant's opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman harmless-error analysis. The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. 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. [Citations.]" (Id. at p. 684.)
1. Background
Mendez complains on appeal of two instances in which his trial counsel unsuccessfully attempted to elicit an informant's out-of-court statements to police regarding observations of "the suspect" under the house at 2635 Parker Avenue.
In the first instance complained of, Jones testified, on cross-examination, that officers went to 2635 Parker Avenue after receiving a tip from an anonymous informant. Jones was then asked: "And that person had advised the investigating officers that he had actually seen the person who had done the shooting go underneath that house?" The People objected, on hearsay grounds. Mendez's trial counsel attempted to justify admission of the evidence as nonhearsay. Specifically, he argued: "Your Honor, it shows that the police acted upon it as a result of that information. It shows why they did what they did." The trial court sustained the prosecutor's objection.
In the second part of Mendez's argument, he complains that the court improperly redacted a DVD created as part of the investigation into Dye's shooting. The court noted that it was particularly concerned with the following statement, by Jones, on the DVD: " 'I'm told we were—the officers were led to this location by a witness that seen the entire incident and saw the suspect hide underneath this house here.' " Regarding the court's hearsay concerns, the following discussion occurred on the record:
"[DEFENSE COUNSEL]: Actually, this is just a statement of what had been given to Jones by others there, and it goes to his, meaning Sergeant Jones's, state of mind in the course of this investigation as to the facts and circumstances of what was going on. And even if it is hearsay, [the] state of mind exception should resolve that. And also the fact that it's part of his investigation process as well as . . . if this is hearsay, all of this has actually been testified to by some witnesses in this case.
"THE COURT: Well, I understand that witnesses may have testified to a lot of this stuff, but it's still hearsay. Why is his state of mind relevant?
"[DEFENSE COUNSEL]: It's relevant as far as what he was doing by way of his investigation of the case."
The court ordered Jones's statement redacted before the DVD was played for the jury.
2. Analysis
On appeal, Mendez concedes that the out-of-court statements were not admissible for their implied truth, i.e., that the person found under the house on Parker Avenue (Dye) was the person who shot McDonald. But he asserts that the out-of-court statements should nevertheless have been admitted to impeach Jones's testimony that he had not received "any information or leads that pointed to anyone else as the suspect in this case other than Mr. Mendez." Specifically, Mendez contends: "[T]he evidence that the citizen told police he had seen the shooting and had seen the shooter hide under the house directly contradicted Sergeant Jones's direct examination testimony . . . . Since this was not an offer to prove the truth of the matter asserted, but to prove knowledge, the evidence was not hearsay and the court erred in sustaining the prosecutor's hearsay objection."
First, we note that, in both instances, Mendez sought to admit double or even triple hearsay. Ultimately, in both instances, Mendez sought to admit a statement made by the informant to unnamed police officers, who then relayed the statements to Jones. For simplicity's sake, we focus on the first level of hearsay—what the informant purportedly said—and treat the statement as if the informant spoke directly to Jones.
Evidence of a declarant's statement is not hearsay if it " 'is offered to prove that the statement imparted certain information to the hearer and that the hearer, believing such information to be true, acted in conformity with that belief. The statement is not hearsay, since it is the hearer's reaction to the statement that is the relevant fact sought to be proved, not the truth of the matter asserted in the statement.' [Citation.]" (People v. Scalzi (1981) 126 Cal.App.3d 901, 907.) But, "[a] hearsay objection to an out-of-court statement may not be overruled simply by identifying a nonhearsay purpose for admitting the statement. The trial court must also find that the nonhearsay purpose is relevant to an issue in dispute." (People v. Armendariz (1984) 37 Cal.3d 573, 585, superseded by statute on other grounds as stated in People v. Cottle (2006) 39 Cal.4th 246, 255.) " 'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, 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.) Mendez's trial counsel only argued that the informant's statement showed why "[the police] did what they did." The nonhearsay purpose identified by Mendez at trial was irrelevant. There were no disputed issues with respect to why police responded to 2635 Parker.
Mendez' theory on appeal is different, and he now argues that the evidence was admissible for the nonhearsay purpose of impeaching Jones's testimony that there was no evidence or leads pointing to a "suspect" other than Mendez. (See People v. Archer (2000) 82 Cal.App.4th 1380, 1391-1392 [error to exclude an out-of-court statement offered for limited purpose of impeachment].) Evidence Code section 780 provides, in relevant part: "Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing . . . ."
Mendez also asserts that the evidence also impeached Jones's positive response to the following question: "Since you were the primary investigator and looked at all of the evidence and statements, et cetera, did you rule out the passenger of the yellow Camaro at the incident location as a possible shooter of Officer McDonald?" We fail to see how the excluded evidence tends to suggest Jones's response was untrue.
"Cross-examination to test the credibility of a prosecuting witness in a criminal case should be given wide latitude. [Citations.]" (Curry v. Superior Court (1970) 2 Cal.3d 707, 715.) But, nonetheless, there are several problems with Mendez's theory of admissibility. First, Mendez's trial counsel never argued that the out-of-court statements were admissible for impeachment purposes or that exclusion of such evidence would violate his right to confrontation. Second, even assuming that Mendez's appellate arguments had been preserved, the out-of-court statement had limited impeachment value. The informant's out-of-court statement would only tend to impeach Jones if: (1) the informant said that he saw the shooting, and (2) the informant said that he saw the person who shot McDonald hide under the house at 2635 Parker. The record does not tell us whether these conditions are satisfied. Jones's statement that the informant saw "the entire incident" is vague, given the multiple locations involved. If the informant merely said that he saw someone exit the Camaro and hide under the house or that he saw someone who looked like Mendez hide under the house, then the fact that Jones had been told of such a statement would not tend to suggest that his testimony on direct examination was untrue. Contrary to Mendez's suggestion, we cannot simply assume, from the prosecution's hearsay objection, that the informant did, in fact, see the shooting. Nor can we assume as much from Jones's one-word response to a compound question.The record does not compel us to conclude that the out-of-court statements would, in fact, impeach Jones. (See People v. Ramos (1997) 15 Cal.4th 1133, 1177-1178 ["burden of producing evidence sufficient to establish the necessary foundation" falls to the proponent and the reviewing court "will not assume error in the absence of a record affirmatively supporting such a finding"]; People v. Holland (1962) 204 Cal.App.2d 77, 81 ["[w]here a question to which an objection is sustained does not of itself indicate that the answer will be favorable to the party seeking to introduce the testimony, before the ruling will be reviewed on appeal, an offer of what is proposed to be proven first must be made to the trial court so that the reviewing court may determine whether such evidence would have been material and beneficial to the party offering it"].)
Recognizing as much, Mendez argues on appeal that his trial counsel was prejudicially ineffective to the extent "trial counsel failed to proffer adequate argument . . . in support of the admission of the evidence . . . ."
Jones was asked: "And the information . . . that the officers acted upon when they went to 2635 Parker Avenue was that of the observations of the person who indicated he had seen the shooting; is that correct?" He responded: "Yes."
In any event, even if we assume that the informant's out-of-court statement was as favorable as Mendez suggests and that exclusion was error, there is no possibility that the trial court's evidentiary ruling prejudiced Mendez, regardless of whether error is judged under the state standard for erroneous evidentiary rulings (People v. Cunningham (2001) 25 Cal.4th 926, 998-999; People v. Watson (1956) 46 Cal.2d 818, 836), or, as Mendez argues, under the standard required in assessing federal constitutional error. (Chapman v. California (1967) 386 U.S. 18, 24; Delaware v. Van Arsdall, supra, 475 U.S. at p. 684.)
Reversal might be required if Mendez could establish some basis for admitting the informant's statement for the truth of the matter asserted. But, it is undisputed that the informant's out-of-court statement could not have been admitted for its truth. Thus, there is no way that any error in excluding the evidence for a limited purpose forestalled Mendez from presenting a defense. Jones did not witness the shooting. Jones's role, as the primary homicide investigator, was merely to summarize the evidence collected in the case. In addition to Jones's testimony that he was not aware of any evidence or leads pointing to a suspect other than Mendez, the jury also was presented with strong direct and circumstantial evidence that Mendez was the shooter.
Mendez did not testify or present other direct evidence that Dye was the shooter. Instead, he asked the jury to speculate, from the lighting conditions, McDonald's preoccupation with his flashlight, the missing photograph, and the unanalyzed gunshot residue kit that such was the case—without ever even establishing that Dye was the passenger in the Camaro. Moreover, Jones's partner in the investigation, Rullamas, was called as a witness by the defense and testified, without objection, that Dye was a "suspect" in the shooting of McDonald, and defense counsel was allowed to argue, without objection, that the anonymous informant actually saw the shooting, and saw the alleged shooter (inferentially Dye) go under the house on Parker Avenue. Even assuming that Dye was the passenger in the Camaro, we do not view this as a close case. McDonald himself testified that he was certain that Mendez was the shooter. McDonald said that he saw the driver raise the gun as he retreated and never saw the passenger lean into the driver's seat. Another witness independently identified Mendez as the driver of the Camaro. Mendez's identification card was found inside the Camaro, where all of the casings were found on the driver's side. The firearms expert testified that none of the recovered bullets and casings could have been fired from the .22-caliber revolver obtained from the anonymous informant. Finally, it was undisputed that Mendez left the area and cut his hair after the shooting. There is no reasonable likelihood that the jury would have rejected all of this evidence if the out-of-court statements had been admitted for the limited purpose of impeaching Jones. C. Continuance
Mendez also argues that the trial court abused its discretion in denying his request for a mid-trial continuance. He claims that the trial court's ruling violated his right to due process and to compulsory process under the Sixth Amendment.
Mendez did not raise his constitutional arguments at trial and, accordingly, we could deem them forfeited. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1126, fn. 30; People v. Daniels (2009) 176 Cal.App.4th 304, 320, fn. 10.) However, assuming he has not forfeited them because they merely restate, under alternative but similar legal principles and facts, claims "otherwise identical" to those that were properly preserved (see People v. Partida (2005) 37 Cal.4th 428, 436), and to forestall Mendez's ineffective assistance of counsel claim, we will address his claim on the merits.
1. Background
After the defense had called eight witnesses, Mendez's trial counsel notified the court that he had no more available witnesses. The following exchange occurred on the record: "[DEFENSE COUNSEL]: There's several other officers we have subpoenaed and have been trying to get in here, your Honor. Officer Roche was subpoenaed long ago. He never appeared and he's one of the ones that we first gave you the information on the he had been served and he has never appeared or contacted us, so we need to have him in here. . . . [¶] . . . [¶] The others though are more problematic to the extent there's Hector Jiminez, who is often mentioned here, but he is really significant as far as his statement in his report, and we have had no way of getting in touch with him. Apparently he has left the department. So [the prosecutor] advised me there's nothing he could do to get in touch with him. He has no way of getting in touch with him. . . . They sent back a statement once efforts were made to subpoena him indicating that he was no longer with the department, no longer with OPD, unable to serve. [¶] It would seem to me there ought to be some records of this person there at OPD and some means that they could get in touch with him . . . because he's really a crucial witness to the extent that he was the officer that went over to the hospital with this now lost photograph of the person with the child and . . . other evidence suggests that was Mr. Mendez with his child because it was taken from that vehicle as possible identifying information. [¶] And the final one is Officer Randy Pope. He did not appear either after being subpoenaed. . . ."
The court ordered the prosecutor to make all reasonable efforts to bring Pope and Roche before the court. Defense counsel asked: "Could we get some kind of order to at least get [Jiminez's] address . . . so we can try to serve him?" The court responded: "If you want some kind of Court order, get me a Court order. [¶] . . . [¶] I don't know [that] even a Court order is going to do that either. OPD, they're going to go to their city attorney. The city attorney is going to object to it and then it will be another two weeks before we find out."
On the following Monday, defense counsel explained: "I have no witnesses at this time. . . . [W]e had previously subpoenaed Officer Roche and he has never responded to our subpoena, and that was very early on in the case. [¶] In addition to that, we resubpoenaed him, but I understand that he may not be around for a while. . . . And we also attempted to subpoena for today Officer Randy Pope. He was due in last Thursday. He has not responded to the subpoena. . . . [¶] But that's the situation as it exists now. Those are the last . . . witnesses we would hope to call, even though we had tried to subpoena . . . Sergeant Wingate, but we can do without him. We actually sent a subpoena to him. He was never served. [¶] . . . [¶] Hector Jiminez. I forgot about him. But he's another officer, quote, who's no longer with the department, end quote, and we've been trying to locate him through Mr. Rosenblum and through the City Attorney's Office . . . .
Wingate was present at 2635 Parker. Wingate is no longer with the Oakland Police Department.
"THE COURT: But in any case, he's not here. So are you going to rest then?
"[DEFENSE COUNSEL]: I was going to ask that this matter be continued until we can get these witnesses here. I understand that Officer Roche could be back at the earliest Thursday.
"THE COURT: No, I won't continue it to Thursday.
"[DEFENSE COUNSEL]: I would then be asking that a warrant be issued for Officer Roche. He's been previously subpoenaed and he's not appeared in response to that subpoena. [¶] . . . [¶] So has Officer Pope been subpoenaed and has not responded to that subpoena."
The prosecutor told the court: ". . . I do understand that a subpoena was issued for Officer Roche to appear in court on the 31st of December, and I am aware that Officer Roche did not appear. However, as I explained to the Court, I believe off the record, is that during that time frame the OPD liaison unit was on furlough. So I'm not sure that Officer Roche ever received a subpoena to come to court. [¶] In addition to that, I am aware that [defense counsel] has made attempts to contact Officer Roche and in fact . . . either late Thursday or early Friday resubpoenaed Officer Roche and Officer Pope. [¶] I've talked with Maxine Dong at the OPD court liaison unit. What she explains to me is on Friday she did immediately send subpoenas to Officer Pope at his work location. He's not in the police administration building. She also E-mailed him and immediately got an auto reply he is on vacation. She has no clue as to when Officer Pope is going to be back here in order to address the subpoena. [¶] . . . [¶] With regards to Officer Roche, . . . she does not expect him until . . . Thursday. She's not 100 percent sure on that . . . ."
The court denied the continuance, stating: "All right. So basically because you don't have any witnesses you're going to have to rest. You've asked for a continuance. I've denied that. We're not waiting until Thursday." However, the court did issue warrants for the arrest of Pope and Roche. The next day, the prosecutor told the court that he had been informed that Pope had been on death leave all of the previous week and was expected to be so for the remainder of the week. Mendez's trial counsel asked that the warrant request be withdrawn with respect to Pope.
2. Analysis
"Continuances shall be granted only upon a showing of good cause. . . ." (§ 1050, subd. (e).) "When a continuance is sought to secure the attendance of a witness, the defendant must establish 'he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven.' [Citation.]" (People v. Jenkins (2000) 22 Cal.4th 900, 1037.) " ' "The granting or denial of a motion for continuance in the midst of a trial traditionally rests within the sound discretion of the trial judge who must consider not only the benefit which the moving party anticipates but also the likelihood that such benefit will result, the burden on other witnesses, jurors and the court and, above all, whether substantial justice will be accomplished or defeated by a granting of the motion." ' " (People v. Fudge (1994) 7 Cal.4th 1075, 1105.) "In the lack of a showing of an abuse of discretion or of prejudice to the defendant, a denial of his motion for a continuance cannot result in a reversal of a judgment of conviction. [Citations.]" (People v. Laursen (1972) 8 Cal.3d 192, 204.)
"[T]he denial of a continuance may be so arbitrary as to deny due process. [Citation.] However, not every denial of a request for more time can be said to violate due process, even if the party seeking the continuance thereby fails to offer evidence. [Citation.] Although 'a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality[,] . . . [t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process.' [Citation.] Instead, '[t]he answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.' [Citations.]" (People v. Beames (2007) 40 Cal.4th 907, 920-921; accord, Ungar v. Sarafite (1964) 376 U.S. 575, 589.)
A defendant's Sixth Amendment rights include "the right 'to have compulsory process for obtaining witnesses in his favor.' . . . [¶] . . . [¶] A defendant's constitutional right to compulsory process is violated when the government interferes with the exercise of his right to present witnesses on his own behalf. [Citations.]" (In re Martin (1987) 44 Cal.3d 1, 29, 30.) It must also be shown that there is "a causal link between the misconduct and [the defendant's] inability to present witnesses on his own behalf." (Id. at p. 31) In addition, the defendant " 'must at least make some plausible showing of how [the] testimony [of the witness] would have been both material and favorable to his defense.' [Citation.]" (Id. at p. 32.)
The trial court did not abuse its discretion in denying the continuance. With respect to former officers Jiminez and Wingate, Mendez did not show that either witness's testimony could have been obtained within a reasonable time. Mendez also failed to show that Jiminez's or Wingate's testimony would be material, noncumulative, and could not otherwise be proven. In fact, Mendez's argument with respect to materiality is almost entirely devoid of citation to the record. Mendez's trial counsel even conceded, at the time he moved for a continuance, that "we can do without [Wingate.]" On appeal, Mendez offers nothing but speculation when he argues that Wingate could have established that the informant's out-of-court statement was a spontaneous statement. With respect to Jiminez, we fail to see how he could have added anything to Leonis's testimony regarding McDonald's inability to identify the adult in the missing photograph. And there is no evidence in the record that the photograph in fact showed Mendez. Good cause was not shown for a continuance to obtain either Jiminez's or Wingate's testimony.
With respect to Pope and Roche, it is undisputed that Mendez did properly subpoena the officers through the Oakland Police Department. (See Jensen v. Superior Court (2008) 160 Cal.App.4th 266, 272 ["service is complete upon receipt of the subpoena by the superior or the designated agent, even though the actual delivery to the officer has not yet occurred"]; § 1328, subd. (c).) It is also true that "[o]ur judicial system is grounded on the sanctity of compulsory process, and it operates on the assumption that a subpoenaed witness—whether a police officer or the President of the United States—will either obey an order to appear in court or present his excuses sufficiently in advance of the appearance date . . . ." (Gaines v. Municipal Court (1980) 101 Cal.App.3d 556, 560.) Nonetheless, the trial court did not abuse its discretion in denying the motion for a continuance. Mendez has not shown that either Pope or Roche would have said anything materially helpful to his defense. In this respect, this case is distinguishable from the authority relied on by Mendez, in which materiality was not disputed. (See Jensen v. Superior Court, supra, 160 Cal.App.4th at p. 274; Mendez v. Superior Court (2008) 162 Cal.App.4th 827, 830-831; Gaines v. Municipal Court, supra, 101 Cal.App.3d at pp. 559-560.)
Section 1328, subdivision (c), provides: "If any peace officer . . . is required as a witness before any court or magistrate in any action or proceeding in connection with a matter regarding an event or transaction which he or she has perceived or investigated in the course of his or her duties, a criminal subpoena issued pursuant to this chapter requiring his or her attendance may be served either by delivering a copy to the peace officer personally or by delivering two copies to his or her immediate superior or agent designated by his or her immediate superior to receive the service . . . ."
Mendez made no offer of proof with respect to either officer. The record does show that Pope gave Leonis the wallet-sized photograph of a male adult and a child that was removed from the Camaro. But, Mendez did not assert that Pope would testify that it was Mendez shown in the photograph. Nor was there any showing that Pope would be available to testify within a reasonable period of time. In fact, he was out on an undefined "death leave." With respect to Roche, the record shows that he would have been available "at the earliest" within about three days. The record shows only that Roche was the officer who shot Dye, and there is absolutely nothing in the record to suggest how he would have been able to provide material and noncumulative evidence in this case. Accordingly, we cannot say that the trial court abused its discretion. For the same reasons, we also reject Mendez's constitutional claims. D. Ineffective Assistance of Counsel
Finally, Mendez contends he was denied effective assistance of counsel because his trial counsel failed to introduce, as promised during his opening statement, evidence that Dye had previously been convicted of a felony and was on parole at the time of the shooting. Under both the Sixth Amendment to the United States Constitution and article I, section 15, of the California Constitution, a criminal defendant has the right to the effective assistance of counsel. (People v. Ledesma (1987) 43 Cal.3d 171, 215.) This right "entitles [the defendant] to 'the reasonably competent assistance of an attorney acting as [the defendant's] diligent conscientious advocate.' [Citations.]" (Ibid.)To establish ineffective assistance of counsel, a defendant must show: (1) that counsel's performance was so deficient that it fell below an objective standard of reasonableness, under prevailing professional norms and (2) that the deficient performance was prejudicial, rendering the results of the trial unreliable or fundamentally unfair. (Strickland v. Washington (1984) 466 U.S. 668, 688, 692; People v. Ledesma, at pp. 216-217.)
A defendant is entitled to raise an ineffective assistance claim on appeal instead of by way of a petition for writ of habeas corpus. But, on direct appeal, this court is limited to the record on appeal and may not speculate about matters outside that record. (People v. Pope (1979) 23 Cal.3d 412, 425-426, abrogated on other grounds, as stated in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) "When . . . defense counsel's reasons for conducting the defense case in a particular way are not readily apparent from the record, we will not assume inadequacy of representation unless there could have been ' "no conceivable tactical purpose" ' for counsel's actions. [Citations.]" (People v. Earp (1999) 20 Cal.4th 826, 896.)
Mendez suggests that we can judicially notice facts that show a motive for Dye to commit the shooting—to avoid being searched and found with a gun. The record does not reveal why Mendez's trial counsel failed to introduce the evidence that Mendez now asks us to judicially notice. But, we see several plausible reasons. As Mendez concedes, the evidence would have only tended to show a possible motive for Dye to have committed the shooting. As we have observed earlier, there was no admissible evidence that Dye was even in the car with Mendez at the time of the shooting. Therefore, the evidence could well have been excluded by the trial court, pursuant to Evidence Code section 352. Although a defendant has the right to present evidence of third party culpability if it is capable of raising a reasonable doubt about the defendant's guilt, the evidence must do more than merely show a motive or opportunity to commit the crime. (People v. Hall (1986) 41 Cal.3d 826, 833; People v. Basuta (2001) 94 Cal.App.4th 370, 386-387.) "[T]here must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime." (People v. Hall, at p. 833.) Futhermore, Mendez had also been convicted of a felony at the time of the shooting. Thus, Mendez's trial counsel could very well have concluded that introducing the evidence of Dye's status would have reinforced the prosecution's own argument with respect to Mendez's motive. We cannot say that the strategy chosen by Mendez's trial counsel was one that competent counsel would not elect, even if Dye was subject to a warrantless search condition and Mendez was not. Mendez's ineffective assistance claim fails. E. Cumulative Error
Mendez filed a request for judicial notice of a probation minute order from the Alameda Superior Court. It states that Dye was convicted of a felony in 2004, given five years probation, and subject to a search condition. The People opposed the request. We originally deferred ruling on Mendez's request. We have discretion to take judicial notice of the records of a court of this state. (Evid. Code, § 452, subd. (d).) However, we ordinarily do not take judicial notice of matters not presented to the trial court. (People v. Preslie (1977) 70 Cal.App.3d 486, 493.) We note that, to the extent Mendez's claim of ineffective assistance of counsel requires consideration of facts outside the record, it is more appropriately considered in the habeas corpus proceeding. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Nonetheless, because the minute order is a proper subject ofjudicial notice and is essential to considering an issue raised on appeal, we grant the request for judicial notice.
The prosecutor argued to the jury: "Remember, when the lights and siren comes on, that's when [Mendez] starts thinking. He knows he has a gun and should not have a gun. He's a felon. Felons aren't supposed to have guns. Now, on top of all of that, he's been drinking. You have a motorcycle cop behind you. You've had a little bit of alcohol and you're a felon in possession of a gun. You got choices to make."
Finally, Mendez argues that the cumulative effect of the trial court's errors requires reversal of the judgment. We have rejected Mendez's arguments on the merits. Mendez was entitled to a trial "in which his guilt or innocence was fairly adjudicated." (People v. Hill (1998) 17 Cal.4th 800, 844.) He received such a trial. F. Stay of Punishment on Count Three Pursuant to Section 654
In their respondents' brief, the People ask us to address, pursuant to section 1252, whether the trial court improperly stayed punishment on count three, discharging a weapon from a motor vehicle.
Section 1252 provides, in relevant part: "On an appeal by a defendant, the appellate court shall, in addition to the issues raised by the defendant, consider and pass upon all rulings of the trial court adverse to the State which it may be requested to pass upon by the Attorney General."
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Section 654, subdivision (a) provides: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other." The protections of section 654 have been extended to cases "in which several offenses are committed during a course of conduct deemed to be indivisible in time. [Citation.]" (People v. Palacios (2007) 41 Cal.4th 720, 727.)
An exception to section 654 has been applied in "multiple victim" situations. " 'The purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled. Section 654 is not ". . . applicable where . . . one act has two results each of which is an act of violence against the person of a separate individual." [Citations.]' [Citation.]" (People v. Oates (2004) 32 Cal.4th 1048, 1063.)
"The question whether section 654 is factually applicable . . . is for the trial court, and the law gives the trial court broad latitude in making this determination. Its findings on this question must be upheld on appeal if there is any substantial evidence to support them. [Citations.]" (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1312.)
At sentencing, the People conceded that section 654 applied to count three and that the punishment should be stayed. Now, the People argue "this was an improper concession on [their] part . . . because section 654 does not apply to multiple offenses in which there are separate victims." We may review their new argument on appeal. "It is well settled . . . that the court acts 'in excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) An "unauthorized sentence" can be corrected whenever it is brought to the reviewing court's attention, even if no objection was made below and the People raise the issue in connection with a defendant's appeal. (Ibid; People v. Crooks (1997) 55 Cal.App.4th 797, 811.)
The People argue that McDonald was not the only victim in this case, pointing to the fact that a bullet was found in a nearby house. But, there was no evidence that anyone was present inside the house at the time of the shooting. Furthermore, the amended information in this case, made clear that the People relied on the same acts, and the same victim, for count one and count three. With respect to count three, the People alleged that Mendez "personally inflicted great bodily injury upon Officer Kevin P. McDonald . . . ." Because of the way count three was charged and the evidence presented at trial, we fail to see how the trial court reasonably could have found counts one and three involved different victims. The court properly stayed punishment on count three.
III. DISPOSITION
The judgment is affirmed.
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Bruiniers, J.
We concur:
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Jones, P. J.
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Simons, J.