P. v. Robbins

Filed 11/28/05 P. v. Robbins CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. FRANCIS ROBBINS et al., Defendants and Appellants.

B176019 (Los Angeles County Super. Ct. No. LA038199)

APPEAL from a judgment of the Superior Court of Los Angeles County. Darlene E. Schempp, Judge. Affirmed.

Jill Lansing, under appointment by the Court of Appeal, for Defendant and Appellant Francis Robbins.

Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant Serean Robbins.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Steven D. Matthews and Paul M. Roadarmel, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

_________________

Francis Robbins (Francis) and Serean Robbins (Serean) appeal from the judgments entered upon their convictions by jury of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)).[1] The jury also found to be true the allegations that (1) appellants personally used a firearm in the commission of the offense within the meaning of sections 12022.53, subdivisions (b), (c) and (d) and 12022.5, subdivision (a)(1),[2] (2) a principal in the commission of the offense used a firearm within the meaning of section 12022.53, subdivisions (b), (c), (d) and (e)(1), and (3) the offense was committed for the benefit of a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members, pursuant to section 186.22, subdivision (b)(1). The trial court sentenced each appellant on the attempted murder conviction with the criminal street gang allegation to an indeterminate term of 15 years to life, plus a consecutive indeterminate sentence of 25 years to life for the firearm enhancement.

Appellants contend that (1) their convictions must be reversed as a result of the trial court’s failure to suppress impermissibly suggestive pretrial and in-court eyewitness identifications. Serean also contends that his conviction must be reversed because (2) the trial court erred in refusing to admit a credit card receipt corroborating his alibi, thereby depriving him of his constitutional right to present a defense, (3) the trial court erred in failing to instruct the jury sua sponte on the principles of self-defense and defense of others, (4) the trial court deprived him of his rights to due process and to a fair trial by failing to instruct the jury sua sponte in accordance with CALJIC No. 2.01, and (5) the cumulative effect of the trial court’s errors mandates reversal. Francis contends that (6) he was deprived of his right to confront witnesses against him, as articulated in Aranda/Bruton[3] and Crawford,[4] due to the admission of Serean’s incriminating out-of-court statement to police, and (7) he suffered ineffective assistance of counsel.

We affirm.

FACTUAL BACKGROUND

On April 8, 2001, at approximately 4:00 pm., Cesar Rodas and Alejandro Verduzco were standing on the street in the area of 6650 Bakman Avenue. Rodas was a member of the “MTC”[5] tagging crew. Rodas testified that a white Dodge Caravan with tinted windows approached him and Verduzco, stopping in the middle of the street. Six young men exited the vehicle, including Hugo Paniagua (Hugo) and his brother, Noe Paniagua (Noe), whom Rodas recognized from school.

With one of appellants behind Hugo holding a gun,[6] Hugo approached Rodas and asked where he was from. Rodas understood the question to mean with what gang was he affiliated and responded, “Nowhere.” Rodas heard one of the males shout, “NFL,” a street gang that was a rival of MTC. [7] Hugo turned to one of the appellants and said, “Shoot the vato.” Rodas saw the appellant closest to Hugo, who had a bald head with a square ponytail and was wearing a black and white jersey with the initials “NFL” on it, shoot at him. He testified that the other appellant fired at Verduzco.[8] Rodas ran and collapsed near a car, after discovering that he had been hit in the leg and back. The shooters returned to the van and drove away quickly.

Jaime Rodriguez was walking his dog near the scene of the shooting. He saw a white Caravan pull up and four or five bald men exit. One of them, wore a black and white jersey and fired three shots at Rodas, who fell to the ground. During the shooting, two cars had windows shattered. The man then ran back to the van. Rodriguez could not see the back of the shooter’s head. As the van drove past Rodriguez and stopped for a few seconds at a stop sign near him, he saw the face of the shooter, who was changing his jersey. Rodriguez identified Francis as the shooter from a photographic six-pack, writing next to his photograph; “Black and white jersey. Back of van took shirt off. I observed him back of van. I think this might be the shooter because of the jersey black and white flannel.” At trial, Rodriguez testified that one of the twins shot the gun, but he could not identify which one.[9]

Codefendants Klint Melcer and Noe Paniagua testified against appellants.[10] Melcer testified that he and appellants were members of “NFL” gang. Francis had “No Fucking Limits” tattooed on his forearm, and Serean “NFL” on his elbows. On April 8, 2001, Francis was bald with a square of hair and two ponytails in the back. Serean was completely bald. Francis was the only member of the NFL gang with that hairstyle.

Melcer testified that on the day of the shooting, he, Francis, Serean, Noe, Hugo and Marco Carranza went to McDonalds to meet a friend. Later, with Serean driving his mother’s white Caravan, the group went to MTC territory. Noe spotted someone he believed to be “Chubs,” an MTC gang member who had disrespected NFL by writing, “No fucking legs,” making fun of an NFL member who was in a wheelchair as a result of a shooting. The group exited the van. Melcer did not know there were guns in the van. He believed they were just going to beat up Chubs. Francis and then Serean started shooting in the same direction. Chubs ran, and Francis chased him, shooting at him. Serean shattered a car window next to Melcer. When Chubs fell to the ground, the group returned to the van and fled, Francis saying, “I got his mother fucking ass. I got him.” Francis used a .32-caliber black handgun, and Serean had a .32-caliber chrome-colored handgun. Melcer had previously seen both guns at the home of appellants’ mother, Karen Robbins (Robbins).

Noe Paniagua testified, substantially corroborating Melcer’s testimony. He confirmed that he and appellants were members of the NFL gang, that Francis had a shaved head with a square ponytail, and Serean’s head was completely shaved, that Francis pursued Chubs shooting, that Serean exited the van and was also shooting, and that Francis used a black handgun and Serean a chrome gun, both of which Noe had also previously seen at Robbins’ house.

Officer Jay Soares responded to the scene of the shootings at approximately 4:10 p.m. He recovered eight .32 caliber shell casings and two projectiles at the scene.

On April 15, 2001, at approximately 12:30 a.m., Los Angeles Police Officer Gerrold Wert and his partner were patrolling the area around Laurel Canyon Boulevard and Rinaldi Street, in an unmarked vehicle. Officer Wert saw a white Mercedes, registered to Robbins, parked at a gas station, with five male Hispanics, including appellants, the Paniaguas and Melcer, standing near its trunk. Francis’s head was shaved except for a ponytail. The individuals entered the car, Serean driving. Officer Wert radioed for a marked patrol car which stopped the Mercedes, and the officers searched the trunk. A black JP Sauer model M38 H .32-caliber handgun was found.

On May 25, 2001, Los Angeles Police Department Officer Eric Bonner participated in a search of Robbins’ residence, where appellants were living. The search yielded a .32-caliber, chrome-colored Davis handgun.

Los Angeles Police Department Firearms Analysis Unit Examiner, Starr Sachs, test fired both confiscated handguns. She determined that four of the eight shell casings recovered at the scene were ejected from the Davis handgun and the other four casings were ejected from the JP Sauer handgun. The two bullets found at the scene had suffered damage, but she determined that one of the bullets was fired from the black, JP Sauer, the other bullet was too damaged to make a determination, although it had some similar features. Sachs was able to eliminate the Davis (chrome handgun) as the source of that bullet.

Detective Daniel Fournier testified as an expert on criminal street gangs. He identified photographs of appellants, seized in the search of Robbins’ residence, throwing gang signs and displaying gang tattoos. He opined that appellants were gang members, based upon their gang tattoos, throwing gang signs, and association with gang members. He testified that NFL was a criminal street gang. He noticed that when Francis was arrested, his head was completely shaved, but there was a pale square in the back which was not tanned like the rest of his head. He photographed Francis’s head.

On May 25, 2001, Detective Fournier interviewed Serean in custody. Serean told him that he did not “gang bang,” but was a tagger. He initially denied involvement in the charged crime, but after being told that the shooting had been caught on tape (although it had not been), he admitted that there were six people in the van, naming the Paniaguas, Melcer and Carranza, and that they were driving through MTC territory when Noe told him to stop, “that’s him.” Everyone but Serean exited the van. He remained inside. Shots rang out and the window of a car parked next to the van shattered. Serean thought someone was shooting at him. The men returned to the van, and Serean drove the group to his mother’s house.

The defense evidence

Fourteen-year-old Ruben Perez was walking on Bakman Avenue at the time of the shooting. He saw two men running, one carrying a silver gun. Both men were bald, and he saw no ponytail on either, but he never saw the back of either man’s head. When shown a six-pack, he circled a photograph of Hugo and said he was 70 percent certain he was one of the men he saw.

On April 8, 2001, Brandon Crislip was a security guard at a movie theater in Reseda.[11] He recalled seeing appellants, their mother, sister, brother and his girlfriend at the theater between 4:00 and 4:30 p.m. He recognized them from several Sony Corporation employee picnics he attended with his grandmother, who like Robbins, was a Sony employee. He recalled the date because it was the Sunday after his mother’s birthday. One appellant had a shaved head and one had cornrows braided back into a ponytail.

Marc Tucker was the boyfriend of appellants’ sister and father of her child. He recalled seeing appellants at the Claim Jumper restaurant, in Northridge, at approximately 2:30 p.m. on April 8, 2001. He recalled the date and time because he kept the receipt of his meal. Francis had his hair in cornrows and Serean was bald. He did not report this information to police, but first reported it to defense counsel during trial.

Robbins testified that on April 8, 2001, her family went to the Claim Jumper restaurant, in Northridge, for lunch, in Robbins’ Mercedes. Robbins also owned a white Dodge van which was left at Francis’s house and was inoperable. They arrived at the restaurant at approximately 2:00 p.m. and waited 35 minutes to be seated. Serean went to the mall where he purchased shoes and was gone for 15 to 20 minutes. After lunch, they saw the movie “Heart Breakers,” which began at 4:20 p.m. She still had the movie stubs, documenting the date and time. When the movie ended at 6:00 p.m., the family rented videos, ordered pizza and spent the evening together at home. Robbins also showed a picture of Francis taken April 1, 2001 with his hair in cornrows. She testified that he kept his hair like that until the Saturday before Easter, April 14, 2001, when he shaved it leaving two ponytails. He had that hairstyle on May 19, 2001, the day of her grandson’s birthday.

DISCUSSION

I. The identification procedures did not violate due process.

On April 9, 2001, Detective Andres Alegria met with Rodas in the hospital to see if he could identify from photographs NFL gang members who were at the scene of the shooting. Appellants’ photographs were not displayed. Rodas identified Hugo from one photograph, and had Detective Alegria write,[12] “Got out from van. Rushed me. Told others to shoot me.” Detective Alegria also showed Rodas an eight by ten photograph of four individuals, one of which he identified as Noe. He did not know the other individuals, but identified one person in a white shirt, and had the detective write, “Looks like the guy that shot me with . . . ponytail.” Just before the word “ponytail,” a shape like a square was written.

On May 8, 2001, in an unrecorded interview with Rodas, Detective Fournier and Officer Bonner showed Rodas photographic six-packs, one of which included a depiction of Serean and one a depiction of Francis. Rodas identified Francis’s photograph and wrote, “Looked like person out of car.” He identified Serean’s photograph, stating, “Looks very familiar.” The comments were written on the six-packs.

The next day, because Detective Fournier’s supervisor was displeased that the descriptions Rodas gave of the identified suspects were vague, Rodas was asked to come to the station to provide more detail. This meeting was tape recorded. To assist Rodas in focusing on Francis’s picture, Detective Fournier showed Rodas the six-pack from which Rodas had selected the photograph of Francis and blocked off all but his photograph. Rodas wrote on the six-pack that he was “70 percent sure [Francis] came out of the sliding door of the van” and began running to him. Rodas described the person who pulled the trigger as having a shaved head and ponytail, and wearing a white jersey with black lettering. Rodas was certain he carried a chrome-colored gun. Detective Fournier also showed Rodas the six-pack from which Rodas had selected the photograph of Serean and blocked off all but his photograph. He asked if Rodas was “positive that that’s the guy?” Rodas stated that “I can’t be that positive,” but wrote that he was “50 % [certain] that [Serean] may look suspicious.” When asked if he looked familiar as being at the scene, Rodas stated: “Maybe. I’m not quite sure. I can’t say.”

Detective Fournier again met with Rodas on June 7, 2001 to see if Rodas could identify Carranza, a newly discovered suspect, as being present at the shooting. Rodas was not shown any photographs of appellants on this occasion. At the beginning of this interview, he balked at cooperating further, fearing gang retaliation. To coax Rodas’s continued cooperation, Detective Fournier told him that ballistics had confirmed appellants’ guilt. He referred to appellants as “rich kids,” who “shouldn’t be allowed to get away with it, and without his testimony they would have got away with it.” He told Rodas that appellants owned a 5,000 square foot home in the hills, and their parents had been bailing them out of trouble. He also said that appellants were cocky and unremorseful.

At the preliminary hearing on December 16, 2002, Rodas identified Hugo and Serean as the two people who first left the van and approached him, but qualified his statement by indicating that Serean and Francis both looked the same. He also testified that one of the appellants shot him, but he could not distinguish between them. He did not qualify any of his identifications by using the percentages he assigned to them at his earlier viewings of the photographic six-packs.

At trial, Rodas again identified appellants as the shooters, without assigning percentages to his level of certainty.

Before trial began, appellants moved to suppress Rodas’s out-of-court identifications and subsequent in-court identifications on the ground that they were the product of impermissibly suggestive identification procedures. Defense counsel argued that Detective Fournier had tainted the identifications by making pejorative statements about appellants to Rodas and telling him that his earlier identifications had been confirmed by ballistics tests. The prosecutor argued that there was nothing suggestive in the lineups because all the officers did was show the same photographic six-packs to Rodas on May 9, from which Rodas had already identified appellants. At the June 7, 2001 interview, Rodas was afraid to cooperate, and the detective was trying to reassure him. The prosecutor argued that he was uncertain giving so much detail to Rodas was proper police procedure, but claimed that it was not suggestive. The trial court denied appellant’s motion.[13]

Appellants contend that the trial court erred in failing to suppress Rodas’s in and out-of-court identifications because the police employed impermissibly suggestive procedures, rendering the identifications so unreliable as to deny them due process and a fair trial. Their principal argument is that police comments to Rodas that ballistics tests had confirmed his earlier qualified identifications of appellants and their pejorative statements about appellants influenced his in-court identifications, which he no longer qualified. This contention is meritless.

In determining whether an identification violates due process, “‘. . . the court must ascertain (1) “whether the identification procedure was unduly suggestive and unnecessary,” and, if so, (2) whether the identification was nevertheless reliable under the totality of the circumstances. . . .’ [Citation.]” (People v. Carpenter (1997) 15 Cal.4th 312, 366-367.) In considering the totality of the circumstances, the court examines, “‘the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of his prior description of the criminal, [and] the level of certainty demonstrated at the confrontation . . . [citations].’” (People v. Nguyen (1994) 23 Cal.App.4th 32, 38.)

The gravamen of a suggestive identification claim is that the defendant’s identification as the perpetrator of a crime is derived from a lineup that, under all of the circumstances of the case, is so unnecessarily suggestive as to create a “‘substantial likelihood of irreparable misidentification.’” (People v. Cunningham (1997) 25 Cal.4th 926, 990; Simmons v. United States (1968) 390 U.S. 377, 384; see also Stovall v. Denno (1967) 388 U.S. 293, 301-302.) A suggestive identification “suggests in advance of [the] witness’s identification the identity of the person suspected by the police.” (People v. Brandon (1995) 32 Cal.App.4th 1033, 1052.) “‘The question is whether anything caused defendant to “stand out” from the others in a way that would suggest the witness should select him.’” (People v. Cunningham, supra, at p. 990.) The defendant bears the burden of demonstrating the existence of an unreliable identification procedure. (Id. at p. 989.)

A conviction based on eyewitness identification at trial following a pretrial identification by photograph will be set aside “‘. . . only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’” (People v. Bethea (1971) 18 Cal.App.3d 930, 937-938.)

Appellant’s initial identification of appellants on May 8, 2001 was not unduly suggestive, and appellants do not apparently so contend. There is no indication that the photographic six-packs or the manner in which Detective Fournier and Detective Bonner presented them suggested in advance the person suspected by the police. The fact that Rodas’s descriptions that Francis “looked like the person out of the car” and Serean “looks very familiar” were not detailed and were qualified did not render the identifications suggestive. In fact, the uncertainty suggests that appellants did not stand out.

The meeting the following day was not to select Rodas’s assailants but to obtain greater detail and specificity regarding the level of certainty he had in the selections he had already made and the roles of each appellant in the shooting. When Detective Fournier covered all but appellants’ photographs on the six-packs, it was not to direct Rodas to identify appellants, but to focus his attention on the individuals he had already identified to attempt to obtain more specific information.

During the other police interviews with Rodas in the hospital and on June 7, 2001, he was not even shown pictures of appellants. Those meetings were to see if he could identify other gang members present during the shootings.

The thrust of appellants’ claim pertains to Rodas’s in-court identifications, which no longer reflected the uncertainty he displayed in his pretrial identifications. The negative comments about appellants made by Officer Fournier at the June 7, 2001 meeting with Rodas and his statement that ballistics tests had confirmed Rodas’s earlier identifications of appellant were unquestionably suggestive, having the capacity to embolden Rodas to greater confidence when identifying appellants at trial. But in order to establish that the in-court identifications violated due process, not only must the identification be unduly suggestive, but it must be unreliable under the totality of the circumstances. (People v. Carpenter, supra, 15 Cal.4th at pp. 366-367.) We conclude that under the totality of the circumstances there was no substantial likelihood of misidentification.

It is significant that Rodas identified appellants before trial from six-packs without any improper suggestion by police. While those identifications were qualified, “[i]t is a matter of common experience that, once a witness has picked out the accused at the line-up, he is not likely to go back on his word.” (United States v. Wade (1967) 388 U.S. 218, 229.) Rodas’s pretrial identifications were corroborated by the identifications of Noe, Melcer and Rodriguez. His identification of Francis as the shooter was based upon his consistent and repeated descriptions of the shooter’s unique hairstyle, a shaved head except for a square ponytail in the back, and his wearing a black and white jersey. Rodas never wavered in this description, and other testimony by several witnesses established that Francis was this person. Further, police attempts to bias Rodas against appellants, the chronology of his identifications and his uncertainty in his initial identifications were presented to the jury, which could assess the impact of the police conduct on Rodas’s credibility. As a result, we conclude that under all of the circumstances, the police conduct did not create a substantial likelihood of a mistaken identification so as to deny appellants due process.

Even if the trial court erred in denying appellants’ motion to suppress the identifications, we would nonetheless find that error harmless under even the most stringent beyond the reasonable doubt standard. (Chapman v. California (1967) 386 U.S. 18, 24.) The evidence against appellants was strong. Although Rodas initially expressed uncertainty about his identifications, this fact was brought to the jury’s attention during examination and argument. Other information provided by Rodas and other witnesses overwhelmingly corroborated the identifications. While in the hospital the day after the shooting, Rodas told Detective Alegria that someone involved in the shooting had a ponytail. At the May 9, 2001 meeting, he elaborated that the person who shot him had a shaved head and a square ponytail and wore a white jersey with black lettering. Codefendant Melcer testified that Francis had two square ponytails from the back of his head, and Rodriguez, a bystander confirmed that the shooter wore a black and white jersey. Rodriguez, who saw Francis’s face as the van passed by, identified Francis as the shooter from a photographic six-pack. Both Noe and Paniagua, fellow gang members, identified Francis as the shooter. Tangible evidence also tied appellants to the shooting. Two guns were confiscated that matched the descriptions of the guns used by appellants in the shooting; one from appellants’ mother’s house and one from her Mercedes. Ballistics tests confirmed that the shell casings found at the scene came from those guns. The white van driven to the scene of the shooting belonged to Robbins.

II. The trial court did not abuse its discretion by excluding defense evidence of a credit card receipt.

The prosecutor made a motion to preclude the defense from introducing a credit card receipt showing that Serean had purchased an item at a Northridge store, at approximately 2:40 p.m., on the day of the shooting. He argued that the receipt was irrelevant, as the shooting did not occur until 4:00 p.m. It would confuse the jury, leading it to believe that the receipt provided an alibi, when it did not. Counsel for Serean argued that the receipt was needed to demonstrate how appellants were able to specifically recall where they were three years earlier. The trial court ruled that the receipt was irrelevant to prove an alibi, but that it could be used to refresh a witness’s recollection about the particular date and time, and for that purpose alone would allow it. The trial court precluded reference to the receipt in opening statement.

Serean contends that the trial court erred by excluding evidence of the receipt, depriving him of his due process right to present a defense. He argues that the credit card receipt would support and confirm the alibi that was vehemently attacked by the prosecutor. He further argues that the error was prejudicial, as there was evidence appellants were not the shooters and there were reasons to disbelieve each of the adverse witnesses. This contention is without merit.

“Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) Relevant evidence is evidence “having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Evidence is also relevant if it bears on the credibility of a witness. (Evid. Code, § 780, subd. (f).) We evaluate a trial court’s relevance rulings under the abuse of discretion standard (People v. Kipp (2001) 26 Cal.4th 1100, 1123) which is as “‘broad as necessary.’” (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.) “‘[I]n most instances the appellate courts will uphold its exercise whether the [evidence] is admitted or excluded.’” (Ibid.)

While the trial court did not permit admission of the purchase receipt, appellants were not deprived of the opportunity to vigorously present their alibi defense. Robbins gave detailed testimony that on the day and time of the shooting, she and appellants were at a movie. She claimed to still have the movie stubs. Crislip, a security guard at the movie theater, corroborated Robbins’ testimony. Tucker testified that he saw appellant at the Claim Jumper restaurant at approximately 2:30 p.m. that afternoon. Given this extensive testimony, appellants were not deprived of due process. The trial court’s ruling here was no more than an exercise of “a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice.” (People v. Hall (1986) 41 Cal.3d 826, 834-835.)

The trial court did not abuse its discretion in precluding admission of the receipt. Appellant failed to establish that the credit card receipt would provide an alibi. It did not show that Serean was at the store at a time that made it impossible for him to be at the scene of the shooting. The receipt reflected a purchase purportedly made an hour and 15 minutes before the shooting, enough time for Serean to still commit the offense.

Even if the trial court erred in refusing to admit the purchase receipt, for the reasons set forth in part I, ante, that error was harmless in that it was not reasonably probable that if the receipt was admitted in evidence the result would have been different. (People v. Watson (1956) 46 Cal.2d 818, 836.)

III. The trial court did not err in failing to instruct the jury sua sponte on self-defense and defense of others.

Serean contends that the trial court erred in failing to instruct the jury sua sponte on self-defense and defense of others. He argues that although he denied involvement in the shooting, the jury could have nonetheless concluded that he believed someone was shooting at him as he sat in the van, because a car window was shot out next to him. This contention is without merit.

In criminal cases, “‘“even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) “‘The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses . . .’” (People v. Lopez (1992) 11 Cal.App.4th 1115, 1120) that are “supported by substantial evidence [and] that are not inconsistent with the defendant’s theory of the case” (People v. Montoya (1994) 7 Cal.4th 1027, 1047). Even an accurate instruction may be properly refused if there is no evidence to which it relates. (See People v. Ortiz (1923) 63 Cal.App. 662, 667.)

Self-defense justifies acts that are otherwise criminal when the defendant has a “reasonable belief” that he or she is in “imminent” danger of “bodily injury.” (People v. Minifie (1996) 13 Cal.4th 1055, 1064; see also §§ 197(1) & (3), 693.) To justify a homicide under a plea of self-defense, it must appear not only that the defendant actually believed himself in deadly peril, but that as a reasonable man he had sufficient grounds for his belief. (People v. Williams (1977) 75 Cal.App.3d 731, 739.)

Self-defense is neither supported by substantial evidence in this case nor consistent with the defendant’s theory of the case. Appellants presented an alibi defense, claiming that they were at lunch and a movie with their family at the time of the shooting. They denied being at the scene of the shooting, which was inconsistent with a claim that Serean was there and acted in self-defense.

There was also insufficient evidence to support self-defense or defense of another. The only evidence germane to these defenses was the testimony of Detective Fournier that Serean told him that he remained in the van during the shooting and that a bullet shattered a car window parked next to the van. Serean said he thought someone was shooting at him. But he never told Detective Fournier that he shot back at any person, or that he even saw the person who purportedly shot at him, against whom he sought to defend himself. This evidence was insufficient to warrant self-defense or defense of others instructions.

IV. Appellant was not denied his rights to due process and trial by jury by virtue of the trial court’s failure to instruct the jury in accordance with CALJIC No. 2.01.

The trial court instructed the jury in accordance with CALJIC No. 2.02, dealing with the sufficiency of the evidence to prove specific intent, deleting all references to “mental state” contained in the form instruction.[14] The trial court did not instruct the jury in accordance with CALJIC No. 2.01.[15]

Serean contends that the trial court erred in failing to instruct the jury sua sponte in accordance with CALJIC No. 2.01. He argues that that, along with its excision of the “mental state” language from CALJIC No. 2.02, “lessened the prosecution’s burden of proving, beyond a reasonable doubt, both that the shooting in this matter was not justified and that it was done in furtherance of gang activity.” CALJIC No. 2.02, unlike CALJIC No. 2.01, did not instruct the jury that if there were two reasonable interpretations from the circumstantial evidence, it was required to select that which indicated innocence. This contention is without merit.

As previously stated, the trial court is required to instruct on the general principles of law. (People v. Breverman, supra, 19 Cal.4th at p. 154.) CALJIC No. 2.01 is such a principle that must be given sua sponte on those occasions when it is applicable. (People v. Wiley (1976) 18 Cal.3d 162, 174; People v. Yrigoyen (1955) 45 Cal.2d 46, 49.) The comment to CALJIC No. 2.01 provides that it is applicable only when circumstantial evidence is “‘substantially relied upon for proof of guilt.’” (People v. Williams (1984) 162 Cal.App.3d 869, 874, 876.) That is not the case here. Appellants were found guilty by eyewitness identifications. Hence, the trial court properly did not give CALJIC No. 2.01.

The second prong of appellants’ argument is that the trial court erred by deleting the “mental state” language from CALJIC No. 2.02 and not including language explaining how the jury must decide between two reasonable interpretations of the circumstantial evidence. We need not decide whether those omissions should have been included in CALJIC No. 2.02 because CALJIC No. 2.02, as given, correctly stated the law. “‘[A] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.’” (People v. Hart (1999) 20 Cal.4th 546, 622.) If Serean believed that the instruction was incomplete, he was obliged to request amplification. He failed to do so and therefore has not preserved this claim for appeal.

V. There are no cumulative errors warranting reversal.

Serean contends that the cumulative effect of the errors he asserts caused reversible and prejudicial error. This contention is without merit.

“Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 844.) “Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (Ibid.) Because we have concluded that Serean’s claims of error are meritless, there are no errors to cumulate.

VI. The Aranda/Bruton and Crawford errors were harmless.

Serean did not testify at trial, but his statement to Detective Fournier was admitted in evidence through the detective’s testimony. In that statement, Serean inculpated Francis, reporting that there were six people in the van who, when they spotted rival gang members, exited and began shooting. Serean claimed he did not get out of the car, but drove off when the shooting stopped. While Serean did not specifically name Francis as one of the six people in the van, other evidence established that Francis was one of them. The jury was not instructed that Serean’s statement could be considered only against him.

Francis contends that admission of his brother’s statement constituted a violation of his rights of confrontation and cross-examination, as articulated in Aranda/Bruton and Crawford. While we agree that Francis’s rights to confront and cross-examine were violated, we conclude that the violations were harmless.

The Sixth Amendment’s Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” (U.S. Const., 6th Amend.) The phrase “witnesses against him” is not limited to in-court witnesses, but also applies to admission of hearsay statements. (See Crawford, supra, 541 U.S. at pp. 50-51.)

In Aranda, dealing with out-of-court statements by codefendants, the California Supreme Court rejected the notion that the admission of a non-testifying defendant’s confession inculpating a codefendant is rendered harmless to the non-confessing defendant by an instruction that it should not be considered against him. (Aranda, supra, 63 Cal.2d at p. 526.) Consequently, “When the prosecution proposes to introduce into evidence an extrajudicial statement of one defendant that implicates a codefendant, the trial court must adopt one of the following procedures: (1) It can permit a joint trial if all parts of the extrajudicial statements implicating any codefendants can be and are effectively deleted without prejudice to the declarant. By effective deletions, we mean not only direct and indirect identifications of codefendants but any statements that could be employed against nondeclarant codefendants once their identity is otherwise established. . . .” (Id. at pp. 530-531.)

In Bruton, decided just a few years after Aranda, the United States Supreme Court held that introduction of an incriminating extrajudicial statement by a non-testifying codefendant violates the defendant’s right to cross-examination, even if the jury is instructed to disregard the statement in determining the defendant’s guilt or innocence. (Bruton, supra, 391 U.S. at p. 137.) The Supreme Court in Bruton reasoned that, even when so instructed, jurors cannot be expected to ignore the statements of one defendant that are “powerfully incriminating” as to another defendant. (Id. at pp. 135-136.) As a result of Bruton, Aranda, which did not articulate a constitutional requirement, is now recognized as a constitutionally based doctrine, at least in part. (People v. Mitcham (1992) 1 Cal.4th 1027, 1045.)

The scope of Bruton was subsequently limited. In Richardson v. Marsh (1987) 481 U.S. 200 (Richardson), the high court held that “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” (Id. at p. 211, fn. omitted.) The court distinguished the redacted confession from the confession at issue in Bruton because the redacted confession was not incriminating on its face, but only when linked to other evidence. (Richardson, supra, at p. 208.) Express incrimination is more vivid than inferential incrimination and more difficult to thrust out of the mind. While the express incrimination of the confession in Bruton justified the belief the jury will likely disobey the instruction not to consider the evidence, there is no overwhelming probability the jury will not obey the limiting instruction to disregard the confession in assessing defendant’s guilt when the confession incriminates only by inference. (Richardson, supra, at p. 208.)

In Crawford, dealing with the admission of the out-of-court statement of any person not testifying at trial, the United States Supreme Court overruled Ohio v. Roberts (1980) 448 U.S. 56, which had allowed out-of-court statements to be admitted at trial upon a showing of sufficient indicia of reliability. (Crawford, supra, 541 U.S at pp. 60-63.) The Supreme Court concluded that, “Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law ‑‑ as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.” (Crawford, supra, at p. 68.) While the Supreme Court left for another day any effort to spell out a comprehensive definition of “‘testimonial’” (ibid.), it stated that it includes “at a minimum” “prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” (Id. at p. 68, italics added.) “Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” (Id. at pp. 68-69.)

Serean’s testimonial statement to police, when considered in conjunction with other evidence, implicated Francis by placing him at the scene of the shooting, outside of the van. While he did not name Francis directly, he did refer to his existence by stating that there were six people in the van. Other evidence established that Francis was one of the six. Serean did not testify at trial, and the jury was not instructed to consider Serean’s statement only against him. Consequently, the commands of Aranda/Bruton and Crawford were simultaneously violated.

Having concluded that Aranda/Bruton and Crawford error occurred, we must still determine if the errors were prejudicial. Aranda/Bruton error is not reversible per se, but because it implicates a constitutional right, is scrutinized under the “‘harmless beyond a reasonable doubt’” standard of Chapman v. California, supra, 386 U.S. at page 24. (Lilly v. Virginia (1999) 527 U.S. 116, 139-140; Brown v. United States (1973) 411 U.S. 223, 231-232; People v. Anderson (1987) 43 Cal.3d 1104, 1128.) To find the error harmless, we must find beyond a reasonable doubt that it did not contribute to the verdict, that is, it was unimportant in relation to everything else the jury considered on the issue in question. (Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) Aranda/Bruton error is harmless where the properly admitted evidence against the defendant is overwhelming and the improperly admitted evidence is merely cumulative. (See Harrington v. California (1969) 395 U.S. 250, 254.) The same harmless error standard and analysis is applicable to Crawford error. (People v. Song (2004) 124 Cal.App.4th 973, 982.)

The Aranda/Bruton and Crawford errors here were harmless beyond a reasonable doubt. In the context of all of the evidence, the brief testimony by Detective Fournier as to what Serean told him was inconsequential. For the reasons set forth in part I, ante, Serean’s statement was merely corroborative of overwhelming additional evidence and other eyewitness identifications of Francis as the shooter.

VII. Ineffective assistance of counsel.

Francis contends that he suffered ineffective assistance of counsel by virtue of his attorney’s failure to object on Aranda/Bruton and Crawford grounds to the admission of Serean’s testimonial statement to Detective Fournier. He argues that the principles announced in those cases were well known and should have been known to any competent counsel. This contention is without merit.

To successfully assert a claim of ineffective assistance of counsel, a defendant must demonstrate that counsel’s representations fell below an objective standard of reasonableness, and but for counsel’s errors there is a reasonable probability that the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694; People v. Berryman (1993) 6 Cal.4th 1048, 1081, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, the claim on appeal must be rejected unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)

As we have concluded in part VI, ante, that the Aranda/Bruton and Crawford errors were harmless beyond a reasonable doubt, it follows that there is no reasonable probability that had Francis’s counsel objected on those grounds a different result would have ensued.

DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________, P. J.

BOREN

We concur:

______________________, J.

DOI TODD

______________________. J.

ASHMANN-GERST

Courtesy of California Legal Resource Directory, a source for providers and consumers of legal resources. Because we know legal.

El Cajon Lawyers are available and standing by to help you.

[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] Effective January 1, 2003, section 12022.5 was amended to eliminate subdivision (a)(1) which, in substance, became subdivision (a).

[3] People v. Aranda (1965) 63 Cal.2d 518 (Aranda); Bruton v. U.S. (1968) 391 U.S. 123 (Bruton).

[4] Crawford v. Washington (2004) 541 U.S. 36 (Crawford).

[5] “MTC” is an acronym for “More Than Crazy.”

[6] At trial, Rodas was unable to identify which appellant was standing by Hugo and was told to shoot Rodas, because appellants are identical twins and both had completely shaved heads at the time of trial. However, he testified that at the time of the charged offense, the appellant near Hugo who shot him had a bald head, except for a square ponytail, and wore a black and white jersey. Other witnesses identified the person with that hairstyle and attire as Francis.

[7] “NFL” is an acronym for “No Fucking Limits,” “Notorious for Life,” and “Neighborhood Felons.”

[8] Rodas never told police he saw someone firing at Verduzco.

[9] In March 2002, after the shooting and before trial, Rodriguez was in a serious car accident, as a result of which, he was in a coma for three and one-half months and hospitalized either six or eight and one-half months. He suffered a head injury, but had no problem with his memory.

[10] Melcer agreed to cooperate with the prosecution in return for leniency, and pled guilty to assault with a deadly weapon and admitted the gang enhancement. He was not guaranteed any particular sentence, and was told that if he lied while testifying, things would be worse for him. Melcer received a sentence of four years, when he was facing 50-years-to-life. At the time of trial, Melcer had already served his sentence.

Noe also agreed to cooperate with the prosecution in return for leniency and pled guilty. He was told that if he cooperated, he would receive only eight years of a potentially much greater sentence. But by the time of trial, he had not yet been sentenced. When he gave his statement to police, he had not been promised anything and was told that he would not be treated leniently if he lied.

[11] Crislip had prior convictions of robbery and assault with a deadly weapon, both arising from one incident.

[12] On April 9, 2001, Rodas was hospitalized for treatment of the injuries he suffered in the shooting and was unable to write.

[13] In denying the motion, the trial court stated: “In looking at everything, I certainly don’t endorse the [detective’s] conduct. The fact remains that the [detective] tried to lead the witness, but if you look at the transcripts, he was not successful. [¶] I certainly think that based on the evidence that was introduced in the hearing that the witness did not change his mind. I think it’s going to make interesting fodder at trial, though.”

[14] CALJIC No. 2.02 as given is as follows: “The specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crime charged unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent, but (2) cannot be reconciled with any other rational conclusion. [¶] Also, if the evidence as to specific intent permits two reasonable interpretations, one of which points to the existence of the specific intent and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the specific intent appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”

[15] CALJIC No. 2.01, “Sufficiency Of Circumstantial Evidence—Generally,” provides: “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only (1) consistent with the theory that the defendant is guilty of the crime, but (2) cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence [as to any particular count] permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to [his] [her] innocence, you must adopt that interpretation that points to the defendant’s innocence, and reject that interpretation that points to [his] [her] guilt. [¶] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”