Opinion
NOT TO BE PUBLISHED
APPEALS from judgments of the Superior Court of Los Angeles County No. GA071076. Janice C. Croft, Judge.
Tracy J. Dressner, under appointment by the Court of Appeal, for Defendant and Appellant Kamaron Walker.
Eric R. Larson, under appointment by the Court of Appeal, for Defendant and Appellant Eric Alexander Williams.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Codefendants Kamaron Walker (Walker) and Eric Alexander Williams (Williams) appeal from their judgments of conviction entered after a jury found them guilty of the murder of Dion Holloway (Holloway).
Walker contends that the trial court erred in admitting the testimony of a key prosecution witness, as well as the agreement the witness signed, granting him immunity and leniency in exchange for his truthful testimony. In the alternative, he asserts ineffective assistance of counsel in failing to object to the testimony and agreement. Walker also contends that a series of evidentiary rulings was erroneous and that the cumulative effect of them was prejudicial.
Williams contends that the trial court conducted an inadequate Marsden inquiry, and that the sentence imposed upon him pursuant to Penal Code section 12022.53, subdivisions (d) and (e)(1), was unauthorized. Williams also asks that the abstracts of judgment be amended to reflect that the restitution order was joint and several, and he joins in any arguments made by Walker to the extent they benefit him.
People v. Marsden (1970) 2 Cal.3d 118, 123-125 (Marsden).
All further statutory references are to the Penal Code unless otherwise indicated.
We conclude that defendants’ contentions are without merit, and affirm the judgments.
BACKGROUND
1. Procedural Background
Initially only Walker and Williams were charged with murder, in violation of section 187, subdivision (a). The information was later amended to add Juan Antonio Villatoro (Villatoro), charging him with the murder as well as having been an accessory to the murder in violation of section 32 (counts 2 and 3). Count 1 of the amended information alleged that Walker and Williams murdered Holloway on September 25, 2007, and for purposes of section 12022.53, subdivisions (b), (c), (d), (e), and (e)(1), that the murder was committed by Walker and a principal by means of the personal and intentional use and discharge of a handgun. The amended information further alleged, pursuant to section 186.22, subdivision (b)(1)(C), that the murder was committed for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further and assist in criminal conduct by gang members.
The amended information alleged that Walker and Williams had each been convicted of one prior serious or violent felony in violation of the “Three Strikes” law (§ 1170.12, subds. (a)-(d), § 667, subds. (b)-(i)), as well as section 667, subdivision (a)(1). In addition, for purposes of the sentence enhancement provided by section 667.5, it was alleged that Walker had served a prison term due to his 1999 robbery conviction, and did not remain free of prison custody for a period of five years before committing the current offense.
Prior to trial, Villatoro entered into an agreement for immunity and leniency in exchange for his truthful testimony in this case. Among other things, the plea agreement permitted Villatoro to plead guilty to being an accessory, with a sentence of 12 years in prison, in exchange for his truthful testimony in defendants’ case.
Walker was convicted of first degree murder, and Williams was convicted of second degree murder. As to Walker, the jury found true the allegations that he personally and intentionally discharged a firearm, which proximately caused Holloway’s death, and as to both defendants, that a principal personally used and discharged a firearm, which proximately caused Holloway’s death. The jury also found true the gang allegation.
Williams and Walker both waived their right to a trial on the prior convictions. Williams admitted that he had been convicted in 1996 of assault with a firearm in violation of section 245, subdivision (a)(2), and Walker admitted that he had been convicted in 1999 of robbery in violation of section 211.
On December 22, 2009, the trial court sentenced Walker to 25 years to life in prison, doubled to 50 years to life due to the second strike, pursuant to section 1170.12, subdivisions (a) through (d), plus a consecutive five-year term pursuant to section 667, subdivision (a)(1), and a consecutive term of 25 years to life pursuant to section 12022.53, subdivision (d), for a total prison term of 80 years to life.
Williams brought a motion to strike his prior felony conviction. On January 14, 2010, the trial court denied the motion and sentenced Williams to 15 years to life in prison, doubled to 30 years to life pursuant to section 1170.12, subdivisions (a) through (d). The court added a consecutive term of 25 years to life pursuant to section 12022.53, subdivisions (d) and (e)(1), plus a consecutive term of five years pursuant to section 667, subdivision (a), for a total term of 60 years to life.
At Williams’s sentencing hearing, the trial court noted that there had been a request for $7,491 in victim restitution, and a restitution hearing was scheduled at Williams’s request. Williams appeared at the hearing only through counsel, and on July 22, 2010, the trial court entered a restitution award of $7,451 against Williams.
As the record on appeal did not contain the superior court’s minutes dated later than January 14, 2010, we obtained the superior court file and on our own motion take judicial notice of the minutes leading up to and including those of July 22, 2010. (See Evid. Code, §§ 452, subd. (d), 459, subd. (a).) Walker was not present at Williams’s sentencing or restitution hearing, and there is no restitution order against Walker in the record.
Both defendants filed timely notices of appeal.
2. Prosecution Evidence
A. Eyewitness Testimony
At approximately 10:00 p.m., when Holloway was fatally shot on Belmont Avenue in Pasadena, three witnesses heard multiple gunshots and looked in the direction from which they had come. Luz Valenzuela saw a short, heavyset person wearing a dark colored “hoodie, ” standing over a body, pointing what she thought was a gun at the body. After the shooting, she saw him enter the passenger side of an older model Ford SUV. Adrienne Devine saw a black SUV pass by slowly, and saw a young man lying in the street. Two days later, she identified for investigators a photograph of the SUV driven by Williams that night. Quinton Hunter saw a young man who had been shot, and black Ford Explorer passing by.
Detective Keith Gomez participated in Walker’s arrest, and reported on the booking sheet that he weighed 230 pounds.
B. Defendants’ Arrest and the Investigation
Detective Gomez arrived on the scene within two minutes of the shooting, and saw a Black male lying face down in the street with several gunshot wounds to his torso and head. The detective observed several expended Hornady brand nine-millimeter shell casings nearby. Forensic specialist Kevin Roon testified that he rarely encountered Hornady brand casings.
Approximately two and one-half hours after the shooting, Pasadena Police Officer Marcos De La Riva saw a speeding black Ford Explorer and followed it to its destination, Villatoro’s home on Glen Avenue in Altadena. Officer De La Riva detained the occupants and identified the driver as Williams and the passenger as Villatoro. Both occupants were wearing dark colored hooded sweatshirts. Perched atop the residence mailbox was an empty box of Hornady nine-millimeter bullets, a brand Officer De La Riva had never heard of before. A black plastic case that fit into the box was found in the trash nearby.
A cast was made of a tire impression found at the murder scene. Lynne Herold, Los Angeles County Sheriff’s Department forensic scientist, analyzed it and determined that two of the tires on Williams’s Ford Explorer could have made the marks. Walker’s fingerprints were found on the windshield and hood of the Explorer.
Holloway died after sustaining seven gunshot wounds: three to the head, one to the neck, one to the back, and two above the hip. Deputy Medical Examiner Riley Solomon, who performed the autopsy, testified that the wounds to the back and hip were consistent with Holloway having been shot as he was running away from the shooter. He could no longer have been running while receiving the wounds to the back of the head.
C. Villatoro’s Testimony
Villatoro identified the leniency agreement he had signed. Villatoro testified that prior to his entering into the agreement, the prosecutor and Detective Grant Curry interviewed him and told him to give a truthful statement. No promises were made prior to the interview, and they did not give him a script or tell him what to say.
Villatoro and Williams were friends. During September 2007, they saw each other daily, and Williams often drove Villatoro to sell methamphetamine. Williams came to Villatoro’s home with Walker on September 25, 2007, and Villatoro met them in front of the house. Walker held a gun, which Villatoro thought was a “357.” As Villatoro approached, Walker wrapped the gun in a rag and put it into the engine compartment of Williams’s vehicle. Later, Villatoro saw Walker with a second gun, a nine-millimeter semiautomatic handgun. When Villatoro saw an ammunition box in the trash can, he retrieved it and placed it on top of the mailbox, telling Walker to throw it away somewhere else. Williams then asked Villatoro to go with them to take Walker home, somewhere in or near Pasadena. When they left, Walker was in the front passenger seat, Williams was driving, and Villatoro was in the back.
As they headed down Fair Oaks Avenue in a residential area, Walker told Williams to “bust a right, ” and Williams circled around as Walker directed him where to go. When they saw a group of African-American men, Walker directed Williams to turn left, descend the hill, stop, and park, explaining that he needed to handle something. Walker went to the front of the car, Williams released the hood at Walker’s request, and Walker came back with gloves and the nine-millimeter handgun. Walker called the group of men “slobs, ” a derogatory term for members of the Blood gang.
Villatoro looked through the back window at Walker as he walked uphill to a man walking downhill. They spoke, and a few seconds later Walker began shooting at the man, who turned and ran. Walker chased him, shooting, and when the man fell, Walker continued to shoot him while he was on the ground, four or five times in all. Walker then came back to the car, put the gun back under the hood, and told Williams to drive away at a normal pace. After first making a few stops, they took Walker home where he took the guns from the engine compartment and then went into his house.
Cell phone records showing cell towers used by calls made from cell phones belonging to Williams, Walker, and Villatoro were admitted to corroborate the itinerary Villatoro described. Walker’s live-in girlfriend told officers that Walker did not come home until sometime after she was asleep, and that she had gone to bed that night at 9:30 or 10:00 p.m.
After his arrest, Villatoro was interviewed by the police. Thinking that he could earn leniency, he decided to cooperate. At first, however, he told the police several different untrue stories, because he was afraid that Williams was behind the glass listening.
Villatoro denied that he was a gang member. He testified that Walker was a member of the Crip gang, but claimed that Williams was no longer an active member. Because Walker and Williams had tried to persuade Villatoro to join the gang, he was concerned when they picked him up the night of the murder that they would want him to do some “work” for the gang. Villatoro acknowledged that he worried for his safety due to his testifying. He explained that he had grown up around gangs, and knew that a “snitch” or a “rat” who testified against gang members could die in prison. He claimed Walker worried him, but not Williams.
After a lunch break during trial, Villatoro recanted. He testified that he had invented his story from bits of information Detective Curry had given him, and that the rest was guesswork. He claimed that Williams picked him up later, and that he was not with him and Walker at the time of the shooting.
Villatoro denied that anything had happened over the lunch hour that caused him to change his testimony, but acknowledged that he had paused and looked toward defendants before changing his testimony. He explained that he changed his testimony because he could not continue lying and send them to prison for life. Villatoro also acknowledged that he had been fearful for his family, but after they moved from Altadena with Detective Curry’s help, he was no longer worried about their safety.
Detective Curry testified that he installed an audio recording device in the van that was used to transport Williams and Walker to jail. Although much of the hour-long recording was unintelligible, some of the conversation could be understood, and it was played for the jury. Williams told Walker that the police were tracking them through their cell phones, and Walker replied, “Your boy told on us.” Both defendants said they were “ex-gang members.” Williams said “The box with the shells, ” and Walker replied, “They told me at his house or something.” When Williams asked whether they found his “baby mama, ” Walker replied, “They ain’t find shit, they ain’t gonna find shit, it’s like... no gun, no powder, no residue, no nothing... turning on me.”
D. Gang Evidence
Detective Gomez testified that blue was the symbolic color for Crip gangs. He described Walker’s tattoos and explained how they related to the Altadena BLOCC Crip (ABC) gang. He testified that a member of that gang, Laron Brown (Brown), had been murdered in ABC territory in June 2007. The suspects were several members of the Pasadena Denver Lane Gang (PDL), a Blood gang at war with ABC.
Los Angeles Sheriff’s Department Detective Joel Nebel, who was assigned to the Altadena Gang Unit, testified as the prosecution’s gang expert. He believed that Walker was a member of ABC. He based his opinion on Walker’s ABC-related tattoos, speaking to people in the community, and information provided by a confidential reliable informant. Detective Nebel also believed that Williams was a member of ABC. Detective Nebel had seen him and spoken to him at gang-related functions, such as the wake/community meeting for Brown. Williams spoke to the detective of Brown’s killing, how ABC’s numbers were low, and how the Bloods were taking over ABC’s territory.
Detective Nebel had arrested Williams in April 2007 for carrying brass knuckles, and observed that his cell phone was blue, had gang graffiti on it, and the contact list contained the monikers of known ABC members. Villatoro was in the car with Williams on that occasion. Detective Nebel believed that Villatoro was an ABC “associate, ” not a member.
All Blood gangs, especially PDL, are ABC’s archenemies, and vice versa. They have waged war since they came into being. During September 2007, tensions between the two gangs were extremely high, and there were many shootings back and forth, sometimes two or three times per week. A major factor in accelerating the war was the arrest and conviction earlier that year of ABC members for the shooting death of Draper Manning (Manning), a highly respected and loved PDL member. Several people in the community told Detective Nebel they believed that ABC member Brown was murdered to avenge the murder of Manning. After Brown was killed, two of the suspects, both PDL members, were shot and the suspect in one case was a Crip member. It was Detective Nebel’s opinion that the killing of Holloway was committed in association with the ABC gang, and for the gang’s benefit.
Detective Nebel found no evidence that Holloway was a gang member. He was killed in Bloods territory, several blocks from home, while on his way to a friend’s house to pick up or return some CD’s or DVD’s.
Detective Nebel defined “snitch” as a tattletale. Gang members dislike snitches enough to inflict serious harm on them, and snitches, or those thought to be snitches, may be placed into protective custody when incarcerated.
3. Walker’s Defense Evidence
Detective Curry testified that he suspected Williams first as the shooter, because he had been wearing a black hoodie, but changed his mind because he did not think Williams was stocky enough. The parties stipulated that the police report prepared by Officer De La Riva stated that Williams was short and stocky, and wearing a black hooded sweatshirt and dark blue jeans. There was no further defense evidence, and no rebuttal.
DISCUSSION
I. Marsden Hearing (Williams)
Williams contends that the trial court’s Marsden inquiry was inadequate. The day of sentencing, the trial court called a Marsden hearing with just Williams and his attorney present, to consider Williams’s complaints about defense counsel, including counsel’s failure to present defense witnesses that Williams had wanted him to call. Although the trial court gave Williams an opportunity to explain his grievances in this case, Williams contends that the trial court abused its discretion in failing to inquire adequately into defense counsel’s decision not to present the witnesses, and he suggests that the trial court should have required counsel to give an explanation.
Williams had also wanted to bring a Pitchess motion (see Pitchess v. Superior Court (1974) 11 Cal.3d 531), a motion to suppress evidence, and a motion pursuant to section 995. In addition, Williams asked the court for a new trial, and asked whether there were grounds beyond the measures counsel did not take during trial, such as juror or prosecutorial misconduct. The trial court told him that there were no apparent grounds for a new trial, and that he should address all his concerns to appellate counsel. Williams assigns as error only to the trial court’s failure to conduct further inquiry into the witness issue.
When a defendant expresses dissatisfaction with appointed counsel, whether during the trial or after the verdict, the trial court must give him an opportunity to explain his grievances. (People v. Smith (2003) 30 Cal.4th 581, 604.) The purpose of the court’s inquiry is to permit a proper exercise of discretion. (People v. Clark (1992) 3 Cal.4th 41, 104.) If the defendant’s complaint “‘relates to matters that occurred outside the courtroom, and the defendant makes a “colorable claim” of inadequacy of counsel, then the trial court may, in its discretion, appoint new counsel to assist the defendant in moving for a new trial. [Citations.]’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 346.)
Williams relies on two cases, People v. Kelley (1997) 52 Cal.App.4th 568 (Kelley), and People v. Stewart (1985) 171 Cal.App.3d 388 (Stewart), which he finds analogous to this case, because the defendants in those cases complained that their attorneys did not call certain witnesses, and the reviewing courts found the inquiries inadequate.
In People v. Smith (1993) 6 Cal.4th 684, 694, the California Supreme Court disapproved Stewart on a point not relevant to the issues presented here.
We agree with respondent that Kelley and Stewart are distinguishable. In Kelley, the defendant filed a written motion for new trial, setting forth in detail the reasons the uncalled witnesses were material, making a prima facie showing of incompetence of counsel, and justifying a hearing to determine whether new counsel should be appointed for the motion for new trial. (Kelley, supra, 52 Cal.App.4th at pp. 579-580.) In Stewart, the defendant complained that counsel should have called the “‘two witnesses on the fourth floor, ’” triggering the trial court’s duty to inquire into the substance of the witnesses’ expected testimony to determine whether it was material. (Stewart, supra, 171 Cal.App.3d at p. 398.)
Here, Williams explained to the court that his attorney felt that the witnesses he had suggested were not good witnesses. Williams conceded as much, but felt that any witnesses were better than none at all. The trial court thus did not fail to determine whether the witnesses were material. As Walker agreed that they were not, the court’s inquiry was sufficient to determine that his complaint was merely a tactical “disagreement in which counsel seems to have taken the wiser view.” (People v. Dickey (2005) 35 Cal.4th 884, 922.) We conclude that the inquiry was adequate.
II. Sentence Enhancement Under Section 12022.53 (Williams)
Williams contends that his sentence enhancement of 25 years to life was unauthorized under his interpretation of section 12022.53, subdivisions (d) and (e)(1).
Section 12022.53, subdivision (d), provides an additional and consecutive prison term of 25 years to life for those convicted of offenses enumerated in subdivision (a), which includes murder, if he personally and intentionally discharged a firearm in the commission of the crime, proximately causing great bodily injury or death to any person other than an accomplice. Section 12022.53, subdivision (e)(1), applies the same enhancement to a person who was a principal in the commission of one of the offenses enumerated in subdivision (a), if the person violated section 186.22, subdivision (b). Thus, “[s]ection 12022.53, subdivision (e)(1), imposes vicarious liability under this section on aiders and abettors who commit crimes in participation of a criminal street gang. [Citation.]” (People v. Garcia (2002) 28 Cal.4th 1166, 1171 (Garcia).)
Although murder is an offense enumerated in section 12022.53, subdivision (a)(1), Williams contends that the sentence enhancement was unauthorized because he was not a principal in the murder. He acknowledges that section 31 provides that persons who aid and abet in the commission of a crime are principals in the crime, but construes section 31 as not including the natural and probable consequences doctrine. Under that doctrine “a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the ‘natural and probable consequence’ of the target crime.” (People v. Prettyman (1996) 14 Cal.4th 248, 261.)
Relying on Garcia, supra, 28 Cal.4th 1166, and People v. Thang Yang (2010) 189 Cal.App.4th 148 (Yang), Williams suggests that section 12022.53, subdivision (e)(1), does not apply unless the target offense was one of the offenses enumerated in section 12022.53, subdivision (a). Williams has misinterpreted both opinions, which did not hold or imply that the natural and probable consequences doctrine is somehow inapplicable to determining whether defendant is a principal for purposes of section 12022.53, subdivision (e).
Rather, Garcia addressed the issue of whether application of the enhancement to an aider and abettor who was a principal in the offense required the prosecution to “plead and prove the conviction of the offense by the principal who intentionally and personally discharged a firearm, ” and concluded that the statute imposed no such requirement. (Garcia, supra, 28 Cal.4th at p. 1174.) In Yang, the appellate court found that section 12022.53, subdivision (e), did not apply, because, although the coprincipal who fired the weapon was convicted of an enumerated crime, the defendant was not. (Yang, supra, 189 Cal.App.4th at pp. 155-156.) Here, Williams was convicted of murder, an offense enumerated in section 12022.53, subdivision (a).
We reject Williams’s attempt to create a separate class of vicariously liable defendants who are not principals, where no such class exists: As “it is established by statute that parties to crimes are classified only as principals and accessories, ... [a] defendant in a criminal action... is convicted as a principal or accessory or not at all....” (People v. Talbott (1944) 65 Cal.App.2d 654, 660.) We also reject Williams’s interpretation of section 31 as not including as principals those defendants who were determined to be aiders and abettors under the natural and probable consequences doctrine. The natural and probable consequences doctrine derives from common law, and is an “‘established rule’ of American jurisprudence [citation].” (People v. Prettyman, supra, 14 Cal.4th at p. 260.) If the Legislature had intended to create a class of aiders and abettors who were not principals, it would have done so.
Further, if the Legislature had intended to give the term “principal” a meaning in section 12022.53, subdivision (e)(1), different from established usage, it would have done so. “Section 12022.53, subdivision (e) is precisely the clear expression of legislative intent to extend an enhanced penalty to aiders and abettors, ” and “the only requirement is that the aider and abettor intend to facilitate the target offense and that the offense ultimately committed is the natural and probable consequence of the target offense.” (People v. Gonzales (2001) 87 Cal.App.4th 1, 15.)
III. Joint and Several Liability (Williams)
Williams asks that we order the superior court to prepare amended abstracts of judgment reflecting that the victim restitution award is his and Walker’s joint and several liability. Respondent agrees.
At Williams’s sentencing on January 14, 2010, the court noted a request for $7,491 in restitution for the victim’s funeral, and Williams’s counsel asked the court to order joint and several liability. The trial court initially granted the request, but then noted Walker’s absence, and scheduled a restitution hearing. Williams then requested a hearing as well, which was scheduled for later that month, and finally held July 22, 2010, when Williams appeared through counsel. Walker did not appear, and the record reflects no notice to him or a reason for his absence. The court made an award against Williams of $7,491. If a similar order was made against Walker, we have no record of it.
See footnote 3.
We may not order the modification of an abstract of judgment to add an order that was never made by the trial court. (See In re Candelario (1970) 3 Cal.3d 702, 705-706.) We thus deny Williams’s request.
IV. Ineffective Assistance of Counsel (Walker)
Walker contends that Villatoro’s testimony should have been excluded because his leniency agreement was unfairly coercive, in that it implicitly required Villatoro to testify that he saw Walker shoot Holloway. Walker also contends that the leniency agreement should have been excluded because it amounted to a statement of the prosecutor’s personal belief in the truth of certain facts, and resulted in impermissible vouching for Villatoro’s veracity.
Walker concedes that he did not raise these issues in the trial court. He has thus forfeited his challenge to the admissibility of the agreement. (See People v. Boyer (2006) 38 Cal.4th 412, 454; Evid. Code, § 353.) In the alternative, Walker asserts ineffective assistance of counsel in failing to object to the agreement.
In a footnote in his opening brief, Walker contends that the agreement should not have been admitted on the additional ground that the mechanism by which Villatoro’s truthfulness would be determined was irrelevant. Irrelevant terms in such an agreement may be excluded upon a timely and specific objection on that ground. (People v. Fauber (1992) 2 Cal.4th 792, 823.) Walker did not object to individual terms as irrelevant.
“Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.” (People v. Rodrigues (1994) 8 Cal.4th 1060, 1126; see also Strickland v. Washington (1984) 466 U.S. 668, 694.)
Walker’s claim of ineffective assistance of counsel has no merit. He has not shown that counsel erred in failing to object, or that there was a reasonable probability that any such objection would have been sustained. We shall explain, turning first to Walker’s claim that the agreement was coercive.
A. The Leniency Agreement was Not Unduly Coercive
A grant of immunity or leniency that places a witness under a strong compulsion to testify in a particular fashion taints the witness’s testimony by his or her self-interest, and is inadmissible. (People v. Garrison (1989) 47 Cal.3d 746, 768; see, e.g., People v. Medina (1974) 41 Cal.App.3d 438, 455 (Medina).) Such an agreement is not improperly coercive if it requires the witness to testify truthfully and fairly, and if it does not require a particular version of events or in conformity with any prior statement. (People v. Boyer, supra, 38 Cal.4th at p. 445; People v. Green (1951) 102 Cal.App.2d 831, 838-839 (Green).) Here, the agreement expressly required Villatoro to “[a]nswer all questions by both the People and the defense in a complete and truthful manner.”
Although the agreement did not require Villatoro to testify as to a particular version of events, Walker contends that it included such an implication by the insertion of the following language in paragraph 4:
“It is believed that [Villatoro] saw Kamaron Walker shoot and kill Dion Holloway at approximately 10:00 p.m. on September 25, 2007 in the area of 1731 Belmont in the city of Pasadena and County of Los Angeles. It is also believed that [Villatoro] saw Eric Williams drive Kamaron Walker to and from the location where Dion Holloway was shot, because [Villatoro] was a passenger in the same vehicle.”
The inclusion of such facts was not improper. When an agreement includes a plea bargain, it is appropriate to express the prosecution’s belief that the witness would testify to certain facts, to insure that there is a factual basis for the plea to lesser charges, so long as the language does not condition the bargain on such facts. (People v. Garrison, supra, 47 Cal.3d at p. 770.) Further, “[t]he assumption that the witness will receive the benefit of his bargain only if his testimony is beneficial or valuable to the prosecution is not alone such an inducement as to place him under the kind of compulsion condemned in Green and Medina: ‘What is improper... is not that what is expected from the informant’s testimony... will be favorable to the People’s case, but that the testimony must be confined to a predetermined formulation or rendered acceptable only if it produces a given result, that is to say, a conviction.’ [Citation.]” (People v. Garrison, supra, at p. 769.)
In short, the witness’s testimony becomes inadmissible only where the agreement was “expressly contingent on the witness sticking to a particular version.” (People v. Garrison, supra, 47 Cal.3d at p. at p. 771, italics added.) We thus reject Walker’s contention that the agreement was inadmissible because it implicitly required Villatoro to testify as to a particular version of events.
Walker points to Villatoro’s testimony that his understanding of the agreement was that he had to testify, as he did in his recorded police interview, that he was the passenger in the car driven by Williams to the scene of the shooting, and that he saw Walker shoot Holloway. Villatoro testified that the prosecutor had told him that he would not get the bargained-for 12-year sentence if he did not say what he had in the recording. Walker argues that despite the language of the agreement, Villatoro’s testimony demonstrates a compulsion to recite a particular version of events.
We disagree. Villatoro also acknowledged that he understood the term in the leniency agreement that required him to tell the truth, and that it would be determined by a neutral magistrate whether he did tell the truth. Villatoro testified that the version given in his recorded statement was the truth. Such circumstances are analogous to those in People v. Fields (1983) 35 Cal.3d 329, 359-360, where the plea agreement required the witness “‘to testify as a witness on the part of the People of the State of California as to the truth of those events that occurred on September 28, 1978.’” The witness’s understanding of the agreement was that she would testify in accord with her last statement to the police, and that she would tell the truth. (Id. at p. 360.)
Finding the circumstances insufficient to demonstrate that the witness was required to testify in accord with her statement regardless of its truth, the California Supreme Court recognized that a witness in this situation is under some compulsion to testify in accord with statements given to the police or the prosecution. (People v. Fields, supra, 35 Cal.3d at p. 361.) However, a witness’s testimony is admissible, so long as the agreement requires only that he or she testify fully and truthfully, and “permits the witness to testify freely at trial and to respond to any claim that he breached the agreement by showing that the testimony he gave was a full and truthful account.” (Ibid.)
Villatoro’s agreement meets these requirements. Villatoro did not testify that his understanding was that he was required to testify in accord with his recorded statement --regardless of the truth. He understood that he was required only to tell the truth, and he testified that the recorded statement was the truth. The agreement did not restrict his ability to testify freely, and contained an independent method for determining whether he had done so.
We conclude that Villatoro’s testimony was properly admitted. As Walker has not shown a reasonable probability that the trial court would have excluded the testimony had his counsel objected, he has not established ineffective assistance. (See People v. Price (1991) 1 Cal.4th 324, 386-387 [“Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile”].)
B. No Vouching or Attorney Error
Walker argues that the prosecutor stated her personal belief in Villatoro’s truthfulness in paragraph 4, quoted in full in the previous part. He contends that the leniency agreement amounted to a statement of the prosecutor’s personal belief in the truth of certain facts, resulting in impermissible vouching for Villatoro’s veracity, and that defense counsel’s failure to object to its admission on this ground demonstrated that his performance fell below the level of professional competence expected in a murder case.
Walker’s contention lacks merit. The People are required to disclose fully any agreement with a witness or other inducements bearing on the witness’s credibility. (People v. Fauber, supra, 2 Cal.4th at p. 823.) The prosecutor met her obligation at the outset of Villatoro’s testimony, by having the agreement marked for identification, showing it to Villatoro, and asking him the essential terms regarding inducements -- his agreement to testify truthfully in exchange for a plea bargain.
Further, admitting all the terms of the agreement may be unnecessary, but it does not amount to “improper vouching, ” where the prosecution does not attempt to bolster the witness’s credibility by reference to facts outside the record, such as personal knowledge or belief. (People v. Frye (1998) 18 Cal.4th 894, 971.) Here, the prosecution’s belief that Villatoro would testify to certain facts was not based upon matters outside the record, but on Villatoro’s recorded statement, which was played for the jury. There was thus no improper vouching.
Moreover, Walker did more than fail to object to the admission of the agreement. When the agreement was offered into evidence, Walker’s counsel stated, “No objection.” It was apparently counsel’s tactical choice to have the agreement admitted. “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ [Citation.] Defendant’s burden is difficult to carry on direct appeal, as we have observed: ‘“Reviewing courts will reverse convictions [on direct appeal] on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for [his or her] act or omission.”’ [Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
Walker argues that counsel could not have had any tactical purpose, but the record shows otherwise. Before the prosecutor moved the agreement into evidence, counsel for both defendants extensively questioned Villatoro regarding paragraph 4, in an apparent effort to show that Villatoro was told what to say. As respondent points out, paragraph 4 “cut both ways.” The strategy was effective. During cross-examination Villatoro recanted, testifying that he had invented the story that had been favorable to the prosecution, and did so in part from information Detective Curry had given him. Thus, Villatoro’s credibility was not bolstered; it was damaged. Defense counsel successfully underscored Villatoro’s motive for lying, as shown by the agreement, and planted the suggestion that the version expected of him was spelled out in it for him.
Because “[j]udicial scrutiny of counsel’s performance must be highly deferential, ” we decline to second-guess his tactical choices, which we presume were the result of “reasonable professional judgment.” (Strickland v. Washington, supra, 466 U.S. at pp. 689-690.)
V. Cumulative Effect of Evidentiary Rulings (Walker)
Walker contends that a series of erroneous evidentiary rulings hindered his ability to counter Villatoro’s testimony, resulting in the denial of a fair trial. In particular, Walker contends that the trial court erred in overruling objections to several leading questions, in ruling that Villatoro had not waived his attorney-client privilege, in admitting a few minutes of an otherwise undecipherable recorded conversation between him and Williams, and in denying discovery regarding the Brown murder.
Most evidentiary rulings are reviewed for an abuse of discretion. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) “Under this standard, a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (Ibid.) It is the burden of the party challenging the trial court’s exercise of discretion to establish that the decision was arbitrary, capricious, or patently absurd. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) It is also the complaining party’s burden to show a miscarriage of justice. (People v. Jordan (1986) 42 Cal.3d 308, 316.) Walker has made neither showing.
A. Leading Questions
During the prosecution’s direct examination of Villatoro, which lasted several hours, the trial court overruled Walker’s objections to the following questions: “At some point that day or at some point that night, did [Williams] ask you to come with him to give him a ride home?”; “Were you in the car when you saw a man get killed?”; “Besides going to your house, did you ever stop at [Williams’s] house that night?”; “Besides being scared of [Walker] today, were you scared of him on that night?”; “Did [Walker] get the guns out of the hood?”; and “Did you later tell [Detective Curry] [Williams] was just giving you a ride home?”
Walker also claims that the trial court overruled his objection to the following question: “Enough time for you to smoke and see [Walker] with the gun?” The court neither sustained nor overruled the objection, but did not allow Villatoro to answer, as it had been asked and answered.
Walker cites the general rule of Evidence Code section 767, subdivision (a), that “[e]xcept under special circumstances where the interests of justice otherwise require: [¶] (1) A leading question may not be asked of a witness on direct or redirect examination.” He argues that special circumstances did not justify the prosecutor’s questions, because they were intended to suggest the answers, in order to prompt Villatoro to give the version of his story most helpful to the prosecution. Walker’s argument merely restates the definition of a leading question: “A ‘leading question’ is a question that suggests to the witness the answer that the examining party desires.” (Evid. Code, § 764.) In essence, Walker argues that there were no special circumstances because the questions were leading. He has not shown that the leading questions were improper under the circumstances.
Moreover, as respondent points out, permitting improper questioning is harmless if the answers are cumulative to other properly admitted evidence. (People v. Williams (1997) 16 Cal.4th 635, 673.) Here, Detective Curry testified at length about his interview with Villatoro, and Villatoro’s recorded interview was admitted into evidence. Detective Curry testified that Villatoro told him that Williams asked him to come with him to take Walker home, that he saw Walker kill Holloway, and that he saw Walker retrieve a gun from the “trunk.” In his recorded interview, Villatoro said that he was in the car and saw Walker shoot the victim. As the significant facts contained in the questions were elicited elsewhere, allowing the leading questions was harmless.
B. Attorney-client Privilege
1. No Waiver
Walker contends that Villatoro waived his attorney-client privilege, and thus, that the trial court should have allowed cross-examination into his communications with counsel regarding his plea agreement.
“‘The attorney-client privilege is one of the oldest recognized privileges for confidential communications’ [citation] and is ‘one which our judicial system has carefully safeguarded with only a few specific exceptions’ [citation].... [A] criminal defendant’s right to due process does not entitle him to invade the attorney-client privilege of another. [Citation.]” (People v. Gurule (2002) 28 Cal.4th 557, 594.)
The attorney-client privilege “is waived with respect to a communication protected by the privilege if any holder of the privilege, without coercion, has disclosed a significant part of the communication....” (Evid. Code, § 912, italics added.) “The privilege of confidential communication between client and attorney should not only be liberally construed, but must be regarded as sacred. Courts should not whittle away at the privilege upon slight or equivocal circumstances.... [Citations.]” (People v. Flores (1977) 71 Cal.App.3d 559, 565.)
Villatoro disclosed very little about his communications with his attorney. When asked whether, after sitting in jail for a year and a half, he told his attorney he wanted to help the prosecution in return for a deal, Villatoro replied, “I never told my lawyer those words. What I told my lawyer was can I -- why I’m still in jail after I cooperated? That’s what I remember telling him.” Villatoro testified that his attorney told him he was charged with murder, and if convicted, he would be in prison for life, but that his case was “looking good.”
The probable charge against Villatoro and the possibility of a life term were made known to Villatoro by Detective Curry in their interview shortly after the murder. Villatoro testified at length about his motives for entering into the leniency agreement. He knew that he was on probation for robbery at the time of the shooting, and that a murder charge could bring a substantial prison term. His understanding of the agreement was that if he testified truthfully that Walker was the shooter and Williams was the driver, he would get only 12 years in prison.
It stands to reason that Villatoro discussed these facts with his attorney, and verifying that he did so cannot be deemed a significant disclosure. As Villatoro did not disclose any significant communication relating to the terms of the plea bargain, we find no error in the court’s ruling that the privilege remained in effect.
2. No Confrontation Violation
Walker also contends that the trial court’s refusal to allow such questioning resulted in a violation of his right of confrontation under the Sixth Amendment to the United States Constitution. Walker argues that cross-examination would have permitted counsel to show a greater degree of bias, by eliciting the initial terms offered by the prosecution in negotiations with Villatoro, possibly showing that Villatoro’s growing frustration at his inability to secure a deal caused him to agree to testify as he did. Walker’s contention has no merit.
“‘[T]he exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.’ [Citations.] It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsel’s inquiry into the potential bias of a prosecution witness....” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678-679; see also People v. Sapp (2003) 31 Cal.4th 240, 290.)
“[T]he Sixth Amendment right to confrontation encompasses inquiry into a witness’s bias or motivation for testifying. [Citation.] The attorney-client privilege, on the other hand, applies to discussions between a witness and the witness’s attorney relating to possible plea bargains. [Citation.]” (People v. Mincey (1992) 2 Cal.4th 408, 463.) Thus, the right to cross-examine does not extend to a witness’s conversations with his attorney about a plea bargain. (Ibid.)
Further, curtailment of cross-examination into such discussions for the purpose of showing bias is harmless where there is ample other evidence of bias. (People v. Mincey, supra, 2 Cal.4th at pp. 463-464.) Villatoro’s motivation for testifying as he did was thoroughly demonstrated, and his recantation further damaged his credibility. Walker has not shown how greater evidence of bias would have made any appreciable difference in the outcome.
C. Jail Van Tape
Walker contends that the trial court erred in admitting just a “snippet” of an otherwise undecipherable recorded conversation between him and Williams in a jail van. Walker argues that four or five minutes of intelligible conversation was not enough in a recording with more than one hour of unintelligible conversation, because it left no context for the statements. Walker also contends that the transcript was misleading, because it did not reflect the unintelligible portions.
The jury could not have been misled by the transcript. Nearly the entire recording was played so that the jury could hear the context of the intelligible parts, as well as the long periods of unintelligible conversation. Further, the court instructed the jury that the recording, not the transcript was the “real” evidence. Thus, although the transcript contains whispered statements that are barely or not at all discernible, the jurors knew that what they heard was the evidence, not the transcript.
Walker recognizes that “[t]o be admissible, tape recordings need not be completely intelligible for the entire conversation as long as enough is intelligible to be relevant without creating an inference of speculation or unfairness.” (People v. Demery (1980) 104 Cal.App.3d 548, 559; see also People v. Von Villas (1992) 11 Cal.App.4th 175, 225-226.) As respondent notes, “a partially unintelligible tape is admissible unless the audible portions of the tape are so incomplete the tape’s relevance is destroyed. [Citations.]” (People v. Polk (1996) 47 Cal.App.4th 944, 952-953.) The admissibility of such a recording is subject to trial court’s discretion, which will be upheld absent a manifest abuse. (People v. Siripongs (1988) 45 Cal.3d 548, 574.)
Walker has found no case which disturbed the trial court’s discretion in admitting recordings containing unintelligible portions, and his arguments merely afford an opportunity for a difference of opinion, which does not establish an abuse of discretion. (Stewart, supra, 171 Cal.App.3d at p. 65.) We find none.
D. The Brown Murder Book
Walker contends that the trial court erred in overruling his objection to testimony regarding the Brown murder, without first ordering discovery of the Brown “murder book.” Walker does not claim a violation of the prosecution’s constitutional duty of disclosure under Brady v. Maryland (1963) 373 U.S. 83, arguing instead that the prosecution was required by section 1054.1 to turn over the murder book to the defense. Citing evidence at trial showing that Holloway was not a gang member, Walker argues that Villatoro’s opinion that the shooting was gang related was not credible. He then asserts his opinion that because the Brown murder supplied a gang related motive for the murder of Holloway, the circumstances of the Brown murder were “critical to the prosecution’s theory of gang motive for this shooting.”
“Murder book” is the colloquial name for the law enforcement investigation file containing materials concerning a case. (In re Miranda (2008) 43 Cal.4th 541, 550.)
Discovery rulings are reviewed for abuse of discretion. (People v. Ayala (2000) 23 Cal.4th 225, 299.) It is Walker’s burden to establish an abuse of discretion by showing that the trial court could have had no reasonable basis for its ruling. (Kennedy v. Superior Court (2006) 145 Cal.App.4th 359, 366, 369 (Kennedy).) Because Walker relies on section 1054.1 to justify the disclosure, he must first show by citation to appropriate authority that section 1054.1 encompasses the materials sought, which, at a minimum would be the subparagraph on which he relies, in addition to argument showing that the materials fall within that subparagraph. (Kennedy, supra, at pp. 367-368, 378-379.) Walker has failed to meet his burden. He fails to point to the appropriate subparagraph of section 1054.1, cite any case authority, or argue how the Brown murder book is encompassed by any legal principles requiring disclosure.
Moreover, the request was overly broad. A murder book is a compilation of all the investigative materials prepared by law enforcement officers in a homicide investigation. Not only was Walker required to justify the category of materials under section 1054.1, he was also required to justify the need for such a wide-sweeping category. As he did not do so, the trial court did not abuse its discretion in denying the discovery request. (See Kennedy, supra, 145 Cal.App.4th at pp. 392-393.)
E. Cumulative Effect
Walker contends that the cumulative effect of all the evidentiary errors was to deprive him of a fair trial in violation of the due process clause of the United States Constitution. Because we have rejected each of Walker’s claims of evidentiary error, we also reject his contention that there was a prejudicial cumulative effect. (See People v. Sapp (2003) 31 Cal.4th 240, 316.) Further, as respondent notes, Walker has failed to demonstrate prejudice. Walker’s contention thus fails.
In his reply brief, Walker contends that respondent must demonstrate harmless error under the test of Chapman v. California (1967) 386 U.S. 18, 24, applied to constitutional error. As we have found no constitutional error, we have no occasion to apply that test.
DISPOSITION
The judgments are affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.