Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. MA033022, Kathleen Blanchard, Judge.
Willoughby & Associates, W. Anthony Willoughby and Jason J. Buccat for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Deandre Tyrese Brumfield appeals from the judgment entered following a jury trial that resulted in his convictions for first degree murder and possession of a firearm by a felon. Brumfield was sentenced to a prison term of 50 years to life.
Brumfield contends the trial court erred by: (1) denying his request for a continuance; (2) denying his request that the jury be instructed on self-defense; (3) excluding photographs of the victim and other persons wearing gang attire; (4) admitting a photograph of the victim’s wounds; (5) admitting evidence that tended to show his affiliation with the Compton Swamp Crips; (6) allowing the prosecutor to question him regarding a short story he authored; (7) appointing counsel for a defense witness; (8) investigating potential juror misconduct; and (9) finding defense counsel in contempt. Brumfield asserts that each of the aforementioned rulings demonstrated the trial judge “engaged in an overt pattern of judicial bias and misconduct” against him. Discerning no error and no judicial bias or misconduct, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. People’s evidence.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. In August 2005, victim Quinton Wright and his girlfriend, Myesha Carroll, were living together in Palmdale. Appellant Brumfield’s girlfriend was Charlotte Layne. Layne and Carroll had been close friends since childhood, but had had a falling out after Carroll discovered her former fiancé visiting Layne in the early morning hours.
On August 23, 2005, at approximately 4:30 p.m., Wright arrived at the Lancaster Car Wash to have a vehicle washed. By happenstance, Brumfield and Layne arrived at the car wash at the same time to have Layne’s car serviced.
Wright encountered Layne near the car wash cashier’s counter and attempted to engage her in an argument. He said in a loud tone, “ ‘You’re a dirty girl. You’re dirty. That’s wrong, girl.’ ” Layne kept her back to Wright and did not respond to his comments. She spoke to someone on her cellular telephone, saying “ ‘Can you come pick me up?’ ” “ ‘He’s bugging me. He’s not leaving me alone. ’ ” At some point Brumfield entered the area to pay his bill and observed Wright’s conduct. Brumfield said to Wright, “ ‘To tell you the truth, man, you need to tighten up your game a little bit. You ain’t going to get her like that, ’ ” or words to that effect. Wright replied, “ ‘Where are you from?’ ” Brumfield answered, “ ‘I’m from... Compton Crips.’ ” Wright asked, “ ‘Who is that?’ ” and Brumfield replied, “ ‘Man, you don’t know who that is.’ ” Wright responded, “ ‘You come around talking that stuff around here, you’re going to get yourself killed.’ ” Brumfield stated he was not worried. Wright made a reference to “Bloods.” Wright accused Brumfield of having a “problem with him” and challenged him to fight. Brumfield told Wright to back off, and he did not want trouble.
Three witnesses testified for the People regarding the circumstances of and statements made during the argument. We harmonize their testimony here.
Wright then punched Brumfield in the jaw. The men ended up fighting on the floor, where they continued hitting each other. Neither man appeared to be winning the fight. After about 15 seconds, the men split up and moved approximately eight feet apart, with Wright leaning on a gumball machine and Brumfield standing in front of the cashier’s counter. Brumfield stated he did not wish to fight any longer and did not want problems with Wright. Wright began yelling, “ ‘This is about Bloods.’ ” Brumfield countered, “ ‘This is about Crips.’ ” Brumfield twice asked the car wash cashier to turn off the establishment’s video surveillance cameras, which were plainly visible from the cashier counter area. The men verbally argued again. One of them said, “ ‘Man, I’m tired of yo shit.’ ”
The car wash was equipped with cameras which streamed real time video to a television set located in the cashier’s area. However, on the date of the shooting the cameras were not recording to tape.
Brumfield pulled a gun from his waistband area and fired approximately four shots at Wright in rapid succession. Wright, who was still leaning against the bubblegum machine, immediately fell to the ground face down, silent and motionless. Brumfield approached Wright’s prone form, leaned over him, and fired at least two more shots downward into Wright’s body. Five to ten seconds elapsed between the first and second series of shots.
Brumfield and Layne ran from the cashier’s area to where their vehicle was being serviced. Brumfield told the mechanic he needed the car immediately. Before the mechanic could disconnect the vehicle from the servicing equipment, Layne’s mother, Antonia Martin, pulled up in a Dodge Durango, picked the couple up, and drove off. When her car was stopped by deputies approximately 45 minutes later, Brumfield and Layne were no longer inside.
An autopsy disclosed that two gunshots entered the back of Wright’s head and neck. One perforated the brain stem and exited the right forehead, and would have been instantly or almost instantly fatal. A second shot entered the back of Wright’s neck and exited through his cheek. This wound was likely inflicted while he was on the floor. A third gunshot, also likely fired while Wright was on the floor, had entered Wright’s lower back or hip area and exited through his chest. These latter two wounds were consistent with the shooter standing over Wright and firing at him as he lay on the ground. Wright had also suffered grazing wounds. Six.9-millimeter shell casings and several bullet fragments were recovered from the scene. Typically, the trigger of a semiautomatic weapon must be pulled in order for the gun to fire.
Brumfield remained a fugitive for almost two years. In 2007, he was found living in Anchorage, Alaska under the alias “Robert Grott.” He was arrested. Layne was also living in Alaska, using the alias “April Adams.”
The parties stipulated that Brumfield had suffered a felony conviction in November 2004 for violation of Health and Safety Code section 11366, maintaining a place for the purpose of unlawfully selling, giving away, or using a controlled substance.
b. Defense evidence.
Brumfield testified on his own behalf, as follows. He was not, and never had been, a gang member. His parents had moved the family from Compton to the Antelope Valley when Brumfield was in third grade, due to their concern about gangs. Brumfield’s grandmother, however, continued to live in Compton, in an area claimed as the territory of the Compton Swamp Crips gang. That gang had attempted to recruit Brumfield, but he had rebuffed their overtures.
Brumfield first encountered Wright in 2000, at a Compton auto show. A group of men, including Wright, surrounded his car. Wright pointed a gun at Brumfield and attempted to take Brumfield’s car. However, a mutual friend dissuaded Wright from doing so. Brumfield did not report the incident to police. Brumfield owned a “fully loaded” 1992 Caprice, complete with “TV’s, music, 22-inch rims to match the paint on the car.” At some point, he was told that Wright wished to take the car from him and would even kill him to get it. Brumfield sold the car to avoid trouble with Wright. In 2005, Brumfield encountered Wright at a party in Palmdale. Wright “ended up shooting the party up” and chased another man down the street, shooting at him. According to Brumfield, Wright was a leader of the “weirdos, ” a Bloods clique. Brumfield had seen Wright’s gang tattoos, and had heard that Wright and his fellow gang members were involved in multiple drive-by shootings. Wright and his gang had a reputation as the “hit guys” in the summer of 2005 and were “jacking everybody and smashing anybody who opposed them.”
In the summer of 2005, Brumfield attempted to enroll at the University of Nevada Las Vegas (UNLV) and travelled there in August to complete paperwork. He enjoyed golf, and hoped to play at UNLV. He returned to the Antelope Valley on August 22, 2005 because he needed to report to his probation officer due to his prior felony drug conviction. When Brumfield arrived home, Layne informed him that Wright had pushed her mother and attempted to hit her when they were at a swap meet. Wright had said he “should blow her fucking brains out for spreading his business.” As Layne and her mother left the swap meet, Wright attempted to hit them with his car.
Brumfield described the events leading to the shooting as follows. He took his mother’s car to the car wash for service. After dropping the car at the service bay, he and Layne talked outside for a few minutes. He asked Layne to move to Las Vegas with him, but she tried to convince him to move to Atlanta, where she had been accepted at a college. He did not know Wright was at the car wash. As he was paying, he overheard Layne arguing with Wright. Brumfield’s first impulse was to run, but he was so frightened he could not move. Wright was calling Layne names and telling her that he was “going to fuck her up.” At first Brumfield simply watched, hoping Wright would not notice him. However, Wright grabbed Layne, pushed her, and stated he was “going to beat her fucking ass.” Brumfield felt compelled to intervene and told Wright, “ ‘Well, you’re not going to get her like that.’ ” Wright then looked at Brumfield “with this look in his eye that nearly stopped [Brumfield’s] heart” and said, “ ‘This Bloods. Who are you?’ ” Before Brumfield could answer Wright stated that he knew who Wright was and remembered him from Compton. Wright said, “this was all Blood.” Brumfield stated that he was not a Crip. Wright began to insult Brumfield, calling him a “ ‘bitch’ ” and saying, “ ‘You’re going to die over this bitch’ ” and “ ‘I can’t wait to get you outside with some rap.’ ” Wright suddenly hit Brumfield in the head hard, striking his temple. Brumfield fell to the ground, his vision blurry. Wright kicked and hit him. Wright eventually fell to the ground with Brumfield, and the two men tussled. Brumfield felt a hard object on the floor and assumed it was the object with which Wright had hit him. Brumfield swung at Wright with the object to force him to back off. There was a loud noise. Brumfield’s ears were ringing and he could not see anything because “[e]verything was black.” The next thing he recalled was Layne pulling him from the car wash.
Layne and Brumfield attempted to retrieve the car from the service bay, but Layne’s mother arrived to pick them up first. At Brumfield’s request, Layne’s mother drove the couple to the swap meet, where Brumfield threw the gun in a trash can. Brumfield was “terrified, ” and felt that his “life was over” because Wright’s gang would seek revenge. Accordingly, and because he was afraid of being incarcerated, he fled to Alaska.
Brumfield testified that he had never been in possession of a gun and had not had a gun when he arrived at the car wash. However, he had a gun in his possession when he left the car wash. He did not realize the hard object was a gun until he fled and discovered it in his hands. He denied using gang jargon when arguing with Wright. He denied telling the cashier to turn off the video cameras. He heard only one loud bang when he struck Wright with the hard object. He had no idea how six shell casings came to be on the floor of the car wash. He had no idea how Wright ended up being shot multiple times, including in the back of the head. In fact, he had “[n]o idea” what had happened.
Brumfield and Layne lived in Alaska for two years before detectives located them. Brumfield had a roommate named Dominic Rough, who was a member of the Compton Swamp Crips gang. Brumfield did not recall seeing gang-related graffiti painted inside his Alaska apartment. He denied trafficking in illegal drugs while in Alaska.
While living in Alaska, Brumfield wrote a narrative entitled, “Tru Story.” The story was written in the first person. Brumfield described shooting a man after being urged to do so by characters named “Snake” and “Scoop.” The story included the statement “revenge is one of life’s sweet joys.” Brumfield testified that the story was simply a work of fiction based on a revision of a movie entitled Blue Hill Avenue.
c. People’s rebuttal.
Anchorage, Alaska Police Officer Jack Carson observed Compton Swamp Crips graffiti painted on the walls of Brumfield’s Alaska apartment, primarily in Rough’s bedroom. A television had been extensively tagged with Compton Swamp Crips graffiti, and paperwork in the living room and kitchen referenced the gang. Rough sported Compton Swamp Crips tattoos.
In Carson’s expert opinion the apartment contained evidence of illegal drug trafficking. Among other things, police discovered a receipt showing that Brumfield, using his alias Robert Grott, had sent money to Karo Player in California. Player was the subject of a federal drug investigation and had shipped approximately 17 kilos of cocaine to the Anchorage area. FedEx air bills found in the apartment also suggested the shipment of illegal drugs.
2. Procedure.
Trial was by jury. Brumfield was convicted of first degree murder (Pen. Code, § 187, subd. (a)) and possession of a firearm by a felon (§ 12021, subd. (a)(1)). The jury found Brumfield personally used and intentionally discharged a handgun, proximately causing Wright’s death (§ 12022.53, subds. (b), (c) & (d)). The trial court sentenced Brumfield to prison for a term of 50 years to life. It awarded victim restitution and imposed a restitution fine, a suspended parole restitution fine, a criminal conviction assessment, and a court security assessment. Brumfield appeals.
All further undesignated statutory references are to the Penal Code.
DISCUSSION
Brumfield not only complains about numerous rulings made by the trial court, but also argues that these unfavorable rulings, as well as other aspects of the trial court’s conduct, evidenced judicial bias and misconduct.
1. The trial court did not err by denying Brumfield’s motion to continue.
a. Additional facts.
The information was filed on June 23, 2008. On September 26, 2008, Brumfield retained private counsel. Brumfield was advised, and agreed, that his trial would begin within 45 days of October 31, 2008. On Monday, March 16, 2009, the matter was sent to Judge Kathleen Blanchard’s courtroom for trial, the sixth of ten days within which trial was required to start. The court agreed to the parties’ request to trail the matter until March 19 but advised that no further continuances would be granted. The court ordered a panel of 60 jurors for the 19th.
On March 18, 2009, defense counsel moved to trail the matter to March 20 or continue it until March 24, 2009, so counsel could fulfill his responsibilities as the City Attorney for the City of Commerce. A chambers conference was held, and the March 19 trial date was not changed.
On March 19, 2009, defense counsel moved to continue the trial for 30 days, on the ground that Layne was unavailable. She lived in Alaska at the time of trial, and had given birth to a premature baby on February 9, 2009. The baby had been released from the hospital on February 26, 2009, but still required frequent hospital visits and constant attention. Layne also had a two-year-old for whom she provided care. These circumstances made it “virtually impossible” for her to travel “at this time.” Defense counsel averred that Layne was “the most critical witness” in the case in that she was the only person who “observe[d] everything that transpired.” She could not only corroborate the testimony of the prosecution witnesses that Wright started the fight, but also could describe “the position of the various parties, which would lend itself to something less than a premeditation and how the actual shooting occurs; something that none of the other witnesses can testify to.” The prosecutor noted that Layne had told police she had not seen the fight, her head was turned when she heard the gunshot, and she never saw a gun. Defense counsel did not state that Layne’s trial testimony would differ from the statements described by the prosecutor.
The trial court observed that it had previously continued the matter to accommodate “everyone’s schedule, ” despite the “courthouse policy” against doing so, and a panel of 60 potential jurors was in the building and ready to begin voir dire. Defense counsel explained that when he had spoken to Layne “a couple of weeks” previously, she indicated she would fly to California when needed. However, when counsel telephoned Layne on March 18, she informed him that the baby had respiratory problems and the pediatrician had not “clear[ed] the child to fly.” The court expressed surprise that Layne had not mentioned the child’s medical condition when counsel spoke with Layne two weeks earlier. Defense counsel explained that his reference to “a couple of weeks” was simply “a euphemism” [sic] and that actually he had spoken with Layne when the baby was in the hospital in February. He had not anticipated, at that time, that travel would be a problem. The court queried whether counsel had attempted to make arrangements for family or friends to care for the baby and Layne’s other child in Alaska while Layne made “a day trip to Los Angeles.” Counsel responded that Layne’s family and friends were all in Los Angeles.
The prosecutor stated he would be happy to cooperate with counsel to accommodate the witness’s needs. Trial was being held in the afternoons only, allowing Layne to fly to Los Angeles in the morning and return the same night. The trial court observed: “It seems to me that at this point you should be able to make accommodations. It’s not Ms. Layne who is incapacitated.... She is able to fly herself. [¶] If you’re telling me, which wasn’t in your declaration, that the baby hasn’t been cleared to fly, in my opinion there’s no reason for the baby to fly.” Further, the defense case would not commence for at least a week and a half, and “certainly accommodations can be made between now and then, ” given that air travel between Los Angeles and Anchorage was feasible and Layne’s family or friends could be flown to Alaska to care for the children. The court expressed skepticism that no one was available in Alaska to assist Layne. The court reasoned that “the court, the prosecutor, and counsel can all accommodate Ms. Layne, ” taking her testimony out of order if necessary. The court advised counsel to “start working immediately in order to make those accommodations, and if you need the court’s assistance in anything, let me know.”
Additionally, the court observed that the defense should have known about and made arrangements to secure Layne’s testimony “earlier than the night before 60 jurors were ordered to be here.” The court expressed concern that the defense appeared to be attempting to delay trial. It explained: “Quite frankly I’m disturbed on a number of levels about this [motion] today. I will note that yesterday a [motion to continue] was filed on different grounds” and the court had indicated no continuance would be granted. The defense had announced ready earlier in the week. Further, the charged murder occurred in August 2005, four years earlier. While the delay between the crime and trial was not attributable to counsel, the court opined that the matter needed to be tried expeditiously: “When we are talking about witnesses and their memories, this is something that needs to go to trial.” Accordingly, the court denied the motion.
b. Discussion.
A continuance of a criminal trial may be granted only for good cause, and the trial court has broad discretion to determine whether good cause exists. (§ 1050, subd. (e); People v. Alexander (2010) 49 Cal.4th 846, 934; People v. Mungia (2008) 44 Cal.4th 1101, 1118; People v. Frye (1998) 18 Cal.4th 894, 1012-1013, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) “ ‘ “A showing of good cause requires a demonstration that counsel and the defendant have prepared for trial with due diligence.” [Citation.]’ ” (People v. Alexander, supra, at p. 934.) There are no “ ‘mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case, particularly in the reasons presented to the trial judge at the time the request is denied.’ [Citations.]” (People v. Mungia, supra, at p. 1118.) “In reviewing the decision to deny a continuance, ‘[o]ne factor to consider is whether a continuance would be useful. [Citation.]’ ” (Ibid.; People v. Frye, supra, at p. 1013.)
When a continuance is sought to secure the attendance of a witness, the defendant must establish that (1) he or she exercised due diligence to secure the witness’s attendance; (2) the witness’s expected testimony was material and not cumulative; (3) the testimony could be obtained within a reasonable time; and (4) the facts to which the witness would testify could not otherwise be proven. (People v. Jenkins (2000) 22 Cal.4th 900, 1037; Jensen v. Superior Court (2008) 160 Cal.App.4th 266, 270.) We review the trial court’s denial of a motion for a continuance for abuse of discretion. (People v. Mungia, supra, 44 Cal.4th at p. 1118; Jensen v. Superior Court, supra, at p. 271.)
No abuse of discretion is apparent here. First, there was an insufficient showing Brumfield exercised due diligence to secure Layne’s testimony. Although counsel purported to be surprised by Layne’s revelation, the day before trial was to begin, that she could not travel to Los Angeles, counsel had spoken with Layne weeks earlier. In February, counsel knew that Layne had given birth to a premature baby who was in the hospital. At least several weeks before the scheduled trial date, counsel should have foreseen the potential difficulties with Layne leaving the baby to travel to Los Angeles. Yet counsel never alerted the court or parties to the problem and apparently made no attempt to work with the witness to address the situation. The court’s conclusion that satisfactory arrangements could likely be made for Layne’s travel and childcare needs was not unreasonable.
Second, counsel failed to show that Layne’s testimony could have been obtained within a reasonable time. If it was in fact impossible for Layne to travel due to her infant’s medical needs, as counsel averred, then it was highly unlikely Layne would have been able to undertake the trip within a reasonable time frame. Nothing suggested that the baby’s health or Layne’s childcare situation would materially change by April 20, 2009, the date that Brumfield requested trial begin. Counsel did not suggest the baby would be ready to travel by any certain date or that different childcare options would become available in the near future. This was not a situation in which a one-time medical emergency was likely to be resolved within a brief period. There was no showing, therefore, that the requested continuance would have been useful.
Finally, the defense failed to show that Layne’s testimony was material, noncumulative, and could not otherwise be proven. Although counsel made repeated assertions that Layne’s testimony was crucial, his arguments were nonspecific and conclusory. Counsel never disagreed with the prosecutor’s representation that Layne had told police she did not see the shooting. Counsel did not state that Layne’s testimony would contradict that of the People’s three eyewitnesses. Counsel did not aver that Layne’s testimony would corroborate Brumfield’s account of how the shooting occurred. There was no suggestion Layne would testify she saw Wright with a gun. It was undisputed that Wright spoke rudely to Layne, attempted to argue with her, and started the argument with Brumfield. Thus, Layne’s testimony on these points would have added nothing to the defense case.
Brumfield’s arguments to the contrary are not persuasive. Brumfield contends that “pursuant to Penal Code Section 1050(g)(2)” his motion “should have been granted outright for the mere fact that [d]efendant was charged with murder.” Brumfield is incorrect. Section 1050, subdivision (g)(2) provides that the trial court may find good cause to continue trial for 10 days in certain types of cases, including murder, when the assigned prosecutor has another trial, preliminary hearing, or motion to suppress in progress. (See generally Mendez v. Superior Court (2008) 162 Cal.App.4th 827, 835.) The statute applies only when the prosecutor has such a conflict; it does not provide that a defendant charged with murder is always or automatically entitled to a continuance on request.
Section 1050, subdivision (g), provides in pertinent part: “(2) For purposes of this section, ‘good cause’ includes, but is not limited to, those cases involving murder, as defined in subdivision (a) of Section 187, allegations that stalking, as defined in Section 646.9, a violation of one or more of the sections specified in subdivision (a) of Section 11165.1 or Section 11165.6, or domestic violence as defined in Section 13700, or a case being handled in the Career Criminal Prosecution Program pursuant to Sections 999b through 999h, or a hate crime, as defined in Title 11.6 (commencing with Section 422.6) of Part 1, has occurred and the prosecuting attorney assigned to the case has another trial, preliminary hearing, or motion to suppress in progress in that court or another court. A continuance under this paragraph shall be limited to a maximum of 10 additional court days.” (Italics added.)
We are also not persuaded by Brumfield’s contention that the primary basis for the trial court’s ruling was an improper desire to avoid inconveniencing jurors. Instead, as we have discussed, the court denied the motion because it believed the defense had not established good cause, and that satisfactory arrangements could be made to secure the witness’s attendance. There was no abuse of discretion.
2. The trial court properly denied Brumfield’s request that the jury be instructed on self-defense.
a. Additional facts.
Brumfield’s jury was instructed on the general principles of homicide, including malice aforethought, first and second degree murder, and provocation. The jury was also instructed on heat of passion and imperfect self-defense theories of voluntary manslaughter, as well as the defense of accident. (CALCRIM Nos. 500, 510, 520, 521, 522, 570, 571, 3474.)
Brumfield requested that the jury also be instructed on “perfect” self-defense, CALCRIM No. 505. He argued that the victim initiated the physical fight, and he was entitled to defend himself. Since the shooting occurred during the fight, the self-defense instruction applied. The trial court observed there was no substantial evidence Brumfield believed he was in imminent danger of being killed or suffering great bodily injury or believed the immediate use of deadly force was necessary to protect himself. There was also no evidence Brumfield used only the amount of force necessary to defend himself. If the People’s witnesses were credited, the victim was on the ground when Brumfield fired two additional shots. If Brumfield’s testimony was credited, the shooting was an accident. Therefore, the court concluded, the self-defense instruction was not supported by substantial evidence.
b. Discussion.
A trial court must instruct on general principles of law that are closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case, including defenses on which the defendant relies or that are not inconsistent with the defendant’s theory of the case. (People v. Boyer (2006) 38 Cal.4th 412, 468-469; People v. Salas (2006) 37 Cal.4th 967, 982; People v. Johnson (2009) 180 Cal.App.4th 702, 707; People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) A court is not obliged to instruct on theories that lack substantial evidentiary support. (People v. Burney (2009) 47 Cal.4th 203, 246; People v. Manriquez (2005) 37 Cal.4th 547, 582; People v. Johnson, supra, at p. 707; People v. Villanueva (2008) 169 Cal.App.4th 41, 49.) Substantial evidence is evidence sufficient to deserve consideration by the jury, that is, evidence that a reasonable jury could find persuasive. (People v. Benavides (2005) 35 Cal.4th 69, 102; People v. Ross (2007) 155 Cal.App.4th 1033, 1049-1050.) In determining whether an instruction is required, a court does not determine the credibility of the defense evidence, but only whether there was evidence which, if credited by the jury, was sufficient to raise a reasonable doubt. (People v. Salas, supra, at p. 982; People v. Villanueva, supra, at p. 49; People v. Cole (2007) 156 Cal.App.4th 452, 483-484.) We independently review the question of whether the trial court erred by failing to instruct on a defense. (People v. Johnson, supra, at p. 707; People v. Oropeza, supra, at p. 78; cf. People v. Cook (2006) 39 Cal.4th 566, 596.)
Homicide is justifiable when committed in self-defense. (§ 197, subd. 1.) A defendant acts in self-defense when he (1) reasonably believed he was in imminent danger of suffering bodily injury; (2) reasonably believed that the immediate use of force was necessary to defend against that danger; and (3) used no more force than was reasonably necessary to defend against that danger. (People v. Villanueva, supra, 169 Cal.App.4th at pp. 49-50; People v. Lee (2005) 131 Cal.App.4th 1413, 1427; CALCRIM No. 505.)
We discern no instructional error here. It was undisputed that Wright started the verbal argument, and there was evidence he threw the first punch. Brumfield testified he believed Wright was a violent person, who had previously threatened him and attempted to steal his car at gunpoint. There was also evidence Wright threatened Brumfield during the altercation, stating that Brumfield was “ ‘going to die over this bitch’ ” and could “ ‘get [himself] killed’ ” talking about Crips. Brumfield was clearly entitled to use reasonably necessary force to defend himself against Wright’s punches. The evidence presented by the People, however, showed that the physical fight had ceased, and the men had moved apart, when Brumfield began shooting. Brumfield was armed, but Wright was not; the only weapon seen by the People’s witnesses was the gun Brumfield pulled from his own waistband. After Wright had fallen to the ground and was incapacitated, Brumfield fired two more shots at close range. Thus, if the jury credited the People’s evidence, there was no showing Brumfield reasonably believed, at the time he fired the gun, that the immediate use of force was necessary to defend himself. There was also no showing he used only the force reasonably necessary to defend himself. “ ‘[O]nly that force which is necessary to repel an attack may be used in self-defense; force which exceeds the necessity is not justified. [Citation.]... [D]eadly force or force likely to cause great bodily injury may be used only to repel an attack which is in itself deadly or likely to cause great bodily injury.... [Citations.]’ [Citation.]” (People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.) Crediting the People’s evidence, Brumfield responded to a fistfight by shooting an unarmed opponent.
If the jury credited Brumfield’s testimony, the shooting was an accident. Brumfield did not testify that Wright had a weapon, or that he so believed. Brumfield had no idea what the “hard object” was when he picked it up and did not realize it was a gun until he found himself holding it when he ran from the building. He did not testify to intentionally shooting Wright because he believed deadly force was required to defend himself from an imminent threat; instead the gun accidentally discharged when he struck Wright with it. He had no idea how the remaining shots came to be fired; thus, he never claimed he continued shooting because he believed he was in danger. Accordingly, crediting Brumfield’s account, the shooting was purely accidental. In general, an accidental shooting is inconsistent with the assertion of self defense. (See, e.g., People v. Villanueva, supra, 169 Cal.App.4th at p. 50; People v. Sedeno (1974) 10 Cal.3d 703, 718, disapproved on another point in People v. Breverman (1998) 19 Cal.4th 142, 165; People v. Curtis (1994) 30 Cal.App.4th 1337, 1357 [“self-defense imports an intentional shooting; it does not apply to an accidental one”].)
However, as the trial court acknowledged, a jury is entitled to credit portions of the defendant’s case while disbelieving others. (People v. Elize (1999) 71 Cal.App.4th 605, 610-615.) In support of his argument that a self-defense instruction was warranted, Brumfield points to our decision in People v. Villanueva, supra, 169 Cal.App.4th 41. In Villanueva, we held that “a defendant’s assertion of accident may be disregarded by the jury in an appropriate case, and will not foreclose jury instruction on self-defense when there exists substantial evidence that the shooting was intentional (and met the other requirements of self-defense).” (Id. at p. 51, italics omitted.) There, defendant Villanueva had a verbal and physical altercation with the victim, Manzano, after the two argued over beer when drinking outside a restaurant. (Id. at p. 45.) Manzano threatened to kill Villanueva the next time he saw him. (Ibid.) Later that night, Manzano drove back to the restaurant. Villanueva was at the restaurant, waiting for a friend to get off work.
Manzano and Villanueva gave very different accounts of what happened next. According to Manzano, Villanueva threatened to kill him, pointed a gun at him, and told him to leave. Manzano put his car in reverse and started backing out. When he shifted the car forward to avoid a parked car, Villanueva shot him. (People v. Villanueva, supra, 169 Cal.App.4th at p. 46.) Villanueva, on the other hand, testified that he was terrified of Manzano due to Manzano’s earlier threat. Manzano leaned toward the van’s glove compartment and Villanueva believed he was going for a gun. Villanueva went to his car and obtained a gun. Villanueva repeatedly asked Manzano to leave, but Manzano did not comply. Manzano seemed to be feigning trouble with the van’s gears and Villanueva surmised he was planning an attack on him. Villanueva threatened to shoot Manzano if he did not leave, and approached the van to try to frighten him. Manzano responded that he was born to die, and stepped on the accelerator as if he intended to run Villanueva over. Villanueva stepped back quickly to avoid the van, and the gun fired accidentally. (Id. at pp. 46-47.)
The trial court declined to instruct on self-defense or imperfect self-defense, given Villanueva’s testimony that the shooting was accidental. (People v. Villanueva, supra, 169 Cal.App.4th at p. 48.) We concluded this was error. (Id. at pp. 52-53.) Despite Villanueva’s testimony that the gun discharged accidentally, there was sufficient evidence he intentionally shot in self-defense. (Id. at p. 52.) There was evidence Manzano was intoxicated and had threatened to kill Villanueva; Villanueva peacefully attempted to end the dispute; and Villanueva armed himself because he believed Manzano was reaching for a weapon. We reasoned: “The jury could have concluded that defendant, fearing that he would be hit by Manzano’s van, intentionally shot Manzano in self-defense.” (Ibid.)
We do not believe the facts of the instant case merit a similar conclusion. Unlike in Villanueva, there was no evidence Brumfield believed Wright was armed, or was about to use deadly force against him similar to the imminent van attack perceived by Villanueva. Even piecing together portions of the People’s and the defense case in the manner most favorable to Brumfield, it is difficult to imagine a scenario under which the jury could have concluded Brumfield used deadly force in response to a reasonable belief he was in imminent danger of death or great bodily injury at the time he shot. The evidence did not lend itself to an interpretation in which Brumfield intentionally shot Wright to defend himself from Wright’s use of deadly force.
In any event, even assuming the trial court erred by declining to instruct on self-defense, the error is harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24.) Error in failing to instruct the jury is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions. (People v. Lewis (2001) 25 Cal.4th 610, 646; see also People v. Manriquez, supra, 37 Cal.4th at pp. 582-583; People v. Wright (2006) 40 Cal.4th 81, 98-99.) Here, the jury was fully instructed on imperfect self-defense. Its determination of that issue was identical to the factual determination it would have had to have made if a self-defense instruction had been given. (See People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262 [“The subjective elements of self-defense and imperfect self-defense are identical. Under each theory, the appellant must actually believe in the need to defend himself against imminent peril to life or great bodily injury”].) The jury here rejected the imperfect self-defense theory, demonstrating it would necessarily have rejected the more demanding self-defense theory as well. Therefore, any instructional error was harmless under any standard of prejudice. (People v. Wright, supra, 40 Cal.4th at p. 99.)
Moreover, given the evidence it is extremely unlikely the jury would have rejected both Brumfield’s testimony that the shooting was an accident and the eyewitnesses’ testimony that Brumfield shot Wright repeatedly after the fistfight ended, in favor of some alternative scenario in which Brumfield shot in lawful self-defense. The People’s witnesses testified, and the physical evidence tended to show, that Brumfield shot at Wright numerous times, including when Wright was already on the ground; this evidence was not contradicted by the defense case. The eyewitnesses also testified to a gap of between 5 to 10 seconds between the first and second series of shots. In short, the People’s evidence was strong and evidence of lawful self-defense was lacking. (Cf. People v. Sakarias (2000) 22 Cal.4th 596, 621 [no state or federal constitutional error occurs requiring reversal for failure to instruct the jury regarding a lesser included offense, when the evidence in support of that offense “was, at best, extremely weak”].)
Brumfield asserts that the trial court “predetermined that it was not going to give a self-defense instruction under any circumstance” even before the court heard the evidence. Not so. Prior to opening statements, the court inquired whether the defense intended to establish perfect or imperfect self-defense. When defense counsel answered affirmatively, the court inquired into the facts underlying such defenses, including whether any evidence showed Wright had a weapon at the car wash. Defense counsel replied, “No. Nobody saw a weapon.” Counsel acknowledged that Wright had not pointed a gun at Brumfield. The court reasoned that, based on defense counsel’s offer of proof, it did not appear self-defense was a viable defense, although imperfect self-defense might be. The court expressed concern that “I don’t want to be put in a situation where at the end of the trial you tell me we have to instruct on self-defense because that’s what [was stated] in opening statement.” The court revisited the issue prior to giving jury instructions. At that point the court heard argument from the parties and reanalyzed the issue in light of the evidence presented during trial. Thus, the record does not suggest the trial court failed to consider the evidence when determining which instructions to give, nor did the court act improperly by ordering Brumfield to avoid mentioning self-defense in opening statement.
3. Contentions related to the admission and exclusion of evidence.
a. Applicable legal principles.
A trial court has broad discretion in determining whether evidence is relevant and whether Evidence Code section 352 precludes its admission (People v. Carter (2005) 36 Cal.4th 1114, 1166-1167; People v. Thornton (2007) 41 Cal.4th 391, 444.) We review the court’s ruling for abuse of discretion. (People v. Holloway (2004) 33 Cal.4th 96, 134; People v. Thornton, supra, at p. 444.) This standard of review applies to evidence offered pursuant to Evidence Code section 1103 to prove the victim’s aggressive and violent character. (People v. Shoemaker (1982) 135 Cal.App.3d 442, 448.) A trial court may exclude such character evidence “if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352; People v. Mills (2010) 48 Cal.4th 158, 195-196.) This discretion allows the trial court broad power “ ‘ “ ‘to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.’ [Citation.]” ’ [Citation.]” (People v. Mills, supra, at p. 195.) A defendant does not have a right to present all relevant evidence, “no matter how limited in probative value such evidence will be.” (People v. Reeder (1978) 82 Cal.App.3d 543, 553.)
Evidence of the victim’s character is admissible in a criminal action to prove that the victim acted in conformity with that character. (Evid. Code, § 1103, subd. (a)(1); People v. Gutierrez (2009) 45 Cal.4th 789, 827-828.) When a defendant claims self-defense (or, in this case, imperfect self-defense) in a murder prosecution, evidence of the victim’s violent character may be relevant to show that the victim was the aggressor and to prove the defendant’s fear of the victim. “The law recognizes the well established fact in human experience that the known reputation of an assailant as to violence, even if specific acts are not within the knowledge of a person assaulted, has a material bearing on the degree and nature of apprehension of danger on the part of the person assaulted....” (People v. Smith (1967) 249 Cal.App.2d 395, 404, italics added; People v. Brophy (1954) 122 Cal.App.2d 638, 647-648.) The victim’s character for violence may be proved by either reputation evidence or specific acts. (People v. Wright (1985) 39 Cal.3d 576, 587; People v. Shoemaker, supra, 135 Cal.App.3d at pp. 446-447.)
b. The trial court properly excluded photographs of the victim and other individuals in gang attire and poses.
(i) Additional facts.
Brumfield sought to introduce seven photographs showing Wright or other persons wearing “Bloods” gang attire and “throwing” gang signs, as follows. One photograph, numbered C18 by the court, showed Wright throwing a gang sign, dressed in gang attire. C18 had been recovered from Wright’s car.
Photographs C11, C12, and C1 may or may not have included Wright. These three photographs were not found in Wright’s car or with his possessions; they had instead been obtained from other persons having no relation to the case. They also depicted persons wearing gang attire, in gang-related poses.
Photographs C3, C5, and C17 depicted persons other than Wright, dressed in red gang attire, throwing gang signs. As with C11, C12, and C1, none of the four were found in Wright’s car or with his possessions.
In one photo, a young man displayed a tattoo; in another, a man displayed a gun; and in another, the group was holding a red bandanna. One of the photos included a reference to the “ ‘Weirdos’ ” clique.
Brumfield contended below that the photographs of persons other than Wright were relevant for the sole purpose of demonstrating that in photograph C18, Wright was making the same Bloods gang sign as the purported gang members in C3, C5, and C17. The trial court excluded these photographs as irrelevant. They did not include Wright and had not been obtained from his car or found with his possessions; they provided no evidence that Wright was a Bloods gang member. They were “very prejudicial” and “likely to evoke a very emotional response” from the jury. The fact Wright was making a Bloods gang sign in C18 could be expeditiously proven without resort to the photographs.
Brumfield contended the photographs which depicted, or might have depicted, Wright were relevant to show Brumfield’s state of mind; to show Wright was a Bloods gang member; and to corroborate evidence that Wright referenced the Bloods during the fight with Brumfield. The court concluded the photographs were unnecessary on the latter point, as there was no dispute Wright referenced the Bloods during the fight. The photographs could have had no bearing on Brumfield’s state of mind, in that there was no suggestion he had seen them before the shooting. The photographs were circumstantial evidence Wright actually was a Bloods gang member, but the key inquiry was whether Brumfield believed Wright was a gang member, not the accuracy of his belief. The photographs did not constitute evidence of Wright’s character for violence under Evidence Code section 1103 because not all gang members are violent. On the other hand, the photographs were highly prejudicial. Accordingly, the court excluded the evidence.
(ii) Discussion.
Brumfield contends the trial court erred by excluding the photographs. We disagree. The photographs not showing Wright, that is, C3, C5, and C17, were almost entirely irrelevant. A trial court has broad discretion in determining the relevance of evidence, but lacks discretion to admit irrelevant evidence. (People v. Thornton, supra, 41 Cal.4th at p. 444; People v. Carter, supra, 36 Cal.4th at pp. 1166-1167.) Photographs of gang members who played no role in the murder or events leading up to it, and which were not obtained from the victim’s personal effects, had no probative value on any material issue. The sole point upon which they might have had some relevance––to prove the hand gesture made by Wright in C18 was a Bloods sign––was not likely to have been disputed at trial and could easily have been proven without resort to the photographs.
The trial court’s exclusion of the photographs that depicted, or might have depicted, Wright was also proper. As the trial court found, the photographs did not establish, by themselves, that Wright was violent. Because there was no contention Brumfield saw the photographs prior to the shooting, they could not have had any bearing on his state of mind. The photographs were, as the trial court found, potentially prejudicial. Moreover, we observe that in addition to the factors cited by the trial court, admission of the photographs would have necessitated an undue expenditure of time. According to defense counsel, the photographs were obtained during the defense investigation. Their provenance would not only have had to have been established, but an expert or other witness would have had to have testified regarding the significance of the attire and signs in the photographs. It was unclear whether three of the photographs the defense sought to admit depicted Wright or not; the parties spent considerable time debating the question. According to the parties’ representations, even Wright’s mother and his former girlfriend Carroll were unsure. Thus, considerable time would necessarily have been devoted to the question of whether Wright was, or was not, among the individuals pictured in those photographs. Given the prejudicial nature and limited probative value of the evidence and the likelihood of undue consumption of time, the court did not abuse its discretion by excluding the photographs. Brumfield’s further claim, that the trial court’s ruling demonstrated bias against him, is patently meritless.
Brumfield represents that “[t]here was no dispute that the victim was depicted in photographs C-11, C-12, and C-18” and argues that, “astonishingly, ” the trial court “refused to even recognize that the victim was actually depicted in” photograph C1, “even though a comparison with other photographs objectively illustrates that it was indeed the victim.” Brumfield berates the trial court for “explain[ing] away” the fact that in photograph C12 Wright was wearing the same clothing as the person in photograph C1. Wright argues that these circumstances “absolutely demonstrate judicial bias” against him.
Even if we were to conclude the ruling was erroneous, we discern no prejudice to Brumfield. The erroneous exclusion of evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been allowed. (Evid. Code, § 354; People v. Richardson (2008) 43 Cal.4th 959, 1001; People v. Earp (1999) 20 Cal.4th 826, 880.) There is no such reasonable probability here. Brumfield was allowed to introduce extensive evidence of Wright’s character for violence, as well as Wright’s affiliation with the Bloods, in the defense case. It was not disputed that Wright referenced the Bloods during the fight, the People never attempted to disprove Wright’s gang affiliation, and there is no reason to think the jury doubted that Wright was a Bloods gang member. Accordingly, it is not reasonably probable the result would have been more favorable for Wright had the photographs been admitted.
c. The trial court properly admitted a photograph of the victim’s head wounds.
(i) Additional facts.
The prosecutor sought to present a photograph of the victim’s head wounds. The People’s theory was that at least two of the shots were fired when Wright was already on the ground, incapacitated. The photograph at issue, eventually denominated People’s Exhibit 20, demonstrated that theory because it showed a hole in the side of Wright’s cheek, with a flattened bullet fragment visible on his forehead. The prosecutor theorized that the photograph demonstrated that when the last shots were fired, Wright was on the ground and clearly posed no threat to Brumfield. The prosecutor acknowledged that the photograph was “bloody.” Brumfield objected that the photograph was prejudicial under Evidence Code section 352.
The trial court examined the photograph and observed that a “distorted” bullet was flat against the victim’s head, supporting the People’s theory. How the victim was shot was a crucial issue in the case. The court acknowledged that People’s Exhibit 20 showed considerable blood but reasoned “blood does not equal prejudice” in the sense contemplated by Evidence Code section 352. The court explained: “It is a murder. And unfortunately, murders are messy. I don’t see anything particularly gruesome about this photograph at all. It simply shows the wounds and shows what sounds like is going to be a critical piece of evidence in this case....”
Nonetheless, the trial court took steps to minimize any potential prejudice. The court queried whether a “sanitized version” of the photograph, perhaps taken after the coroner had cleaned the blood from the wound, could be substituted. The prosecutor represented that such a picture existed, but did not show the bullet fragment, a key piece of evidence. The court verified the prosecutor’s representation by examining the alternative photograph. The court observed that in People’s Exhibit 20, the “blood on the shirt” was “more gruesome than the blood on the face.” It opined, “the worst of it we can redact out by trimming off the bottom of this photograph.” The court directed the prosecutor to crop the photo accordingly. The court also asked that the photograph not be shown on the courtroom projector, and that the jury be warned of its nature to avoid any surprise or shock. Defense counsel did not object to the cropping of the photograph.
(ii) Discussion.
A trial court has wide discretion to admit photographs of a victim, including autopsy and similar photographs, and we review its rulings for abuse of discretion. (People v. Carter, supra, 36 Cal.4th at p. 1167; People v. Burney, supra, 47 Cal.4th at p. 243; People v. Carey (2007) 41 Cal.4th 109, 127.) “Autopsy photographs of a murder victim are always relevant at trial to prove how the crime occurred; the prosecution need not prove these details solely through witness testimony. [Citations.]” (People v. Carey, supra, at p. 127.) “ ‘ “[V]ictim photographs and other graphic items of evidence in murder cases always are disturbing.” ’ ” (People v. Carter, supra, 36 Cal.4th at p. 1168; People v. Burney, supra, at p. 243.)
Here, People’s Exhibit 20 had substantial probative value. The key issue in the case was whether the shots were fired by accident, when Brumfield was on the ground with Wright, or after the fight had ceased, as described by the People’s witnesses. Thus, whether some of the shots were fired as Brumfield stood over Wright was a crucial issue. The photograph, showing a flattened bullet on Wright’s forehead, was highly probative on this issue. (See, e.g., People v. Burney, supra, 47 Cal.4th at p. 243 [photographs had substantial probative value where they contradicted defendant’s statement that he shot the victim without aiming].) People’s Exhibit 20 was not inflammatory or overly graphic, and was not so gruesome as to have impermissibly swayed the jury. (Ibid.) That it was unpleasant does not render it unduly prejudicial. (People v. Carter, supra, 36 Cal.4th at p. 1168; People v. Riel (2000) 22 Cal.4th 1153, 1194 [fact exhibits involved blood was due to the crime, not the court’s rulings].) “The prosecution was not obligated to ‘ “accept antiseptic stipulations in lieu of photographic evidence” ’ on these issues.” (People v. Burney, supra, at p. 243.)
Brumfield complains that the trial court allowed the photograph into evidence “despite [its] highly prejudicial nature, ” “in direct contradiction of [the court’s] reasoning for keeping out Defendant’s photographs––that they would evoke a highly emotional response from the jury.” Brumfield urges that a photograph showing bullet wounds is ipso facto more prejudicial than photographs showing persons in gang attire. We do not necessarily agree with this statement, but in any event Brumfield misses the point: the photograph of Wright’s wound had substantial probative value, while the photographs of persons in gang attire offered by the defense had little or none, as we have discussed ante.
Second, Brumfield seriously mischaracterizes the record by complaining that the trial court ordered the photograph “altered so that it would be more gruesome, ” a circumstance he contends evidenced judicial bias. As is clear from our discussion of the facts ante, the trial court did no such thing. The court ordered the picture cropped to minimize and reduce any potential prejudice. Brumfield’s argument is disingenuous; the basis for the trial court’s action must have been clear to appellate counsel, who was, after all, Brumfield’s trial counsel. Indeed, defense counsel did not question or object to the court’s directive or express any concern that cropping the photograph would do more harm than good. Thus, any contention that the court erred by having the photograph cropped is not only meritless, but has been forfeited. (People v. Booker (2011) 51 Cal.4th 141, 170; Evid. Code, § 353, subd. (a).)
d. Admission of evidence that Dominic Rough was affiliated with the Crips gang.
Prior to trial, as we have described, the defense sought to introduce evidence of Wright’s Bloods gang affiliation. Brumfield simultaneously sought to exclude evidence suggesting he was affiliated with the Crips. The court and parties agreed that the statements heard by the eyewitnesses to the crime, in which both Wright and Brumfield referenced criminal street gangs, were admissible. Beyond that, the court opined that the defense was faced with a tactical choice: it could avoid introducing additional evidence regarding Wright’s gang affiliation, and largely keep the issue of gangs out of the case; or it could seek to introduce additional evidence of Wright’s gang affiliation, which might open the door for the People to bring in evidence of Brumfield’s gang associations. The court explained that if the defense wants “to get into the fact that the victim’s this big bad guy because he actually does have these gang associations..., you’re now putting the relevance of whether or not they’re each gang affiliated. [¶] And I don’t think you can dress your client up nicely and treat the victim that way. I think that you open the door if you want to get into the v[e]racity of the Blood and the Crip references. And if you want to do that by bringing out the affiliations of the victim, then I think that you can, but I think you also open the door for the People then to bring in whatever they have to corroborate with regard to [Brumfield’s] gang reference.”
During the People’s case-in-chief, the prosecutor did not present evidence of either Wright’s or Brumfield’s gang affiliations beyond the statements made during the altercation. The defense put on evidence that Wright was a leader in a Bloods clique and had a reputation for violence. Brumfield testified that he was not, and never had been, a gang member and had never possessed a gun. He stated he had been planning to attend college in Nevada and had fled to Alaska out of fear of Wright’s gang. In rebuttal, over a defense objection, the People put on evidence that Wright lived in Alaska with Crips gang member Dominic Rough, in an apartment tagged with Crips-related graffiti.
Brumfield contends the trial court erred by admitting evidence that Rough was a gang member. He complains that the trial court excluded the defense photographs of Blood gang members, discussed ante, in part because no gang allegation had been charged. By parity of reasoning, Brumfield urges, the court should have excluded evidence of Rough’s gang affiliation. He contends the court’s ruling must have been the result of “bias and misconduct.”
The trial court’s exclusion of the gang photographs proffered by Brumfield was based not only on the fact there was no gang allegation in the case, but on the fact the proffered photographs had little or no probative value. The court did not preclude Brumfield from presenting other evidence of Wright’s gang affiliation. Indeed, the defense case was replete with much testimony about Wright’s gang membership and activities, including that Wright was the tattooed leader of a Bloods clique which had been involved in drive-by shootings and was “jacking everybody and smashing anybody who opposed them.”
Against this backdrop, the trial court did not err by admitting evidence of Rough’s membership in the Crips gang. Evidence is relevant if it has a tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, § 210.) “Gang evidence is admissible if it is logically relevant to some material issue in the case other than character evidence, is not more prejudicial than probative, and is not cumulative.” (People v. Avitia (2005) 127 Cal.App.4th 185, 192.) In a case not involving a gang enhancement allegation, gang evidence may nonetheless be relevant to, and admissible regarding, the charged offense. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) “Evidence of the defendant’s gang affiliation––including evidence of the gang’s territory, membership, signs, symbols, beliefs and practices, criminal enterprises, rivalries, and the like––can help prove identity, motive, modus operandi, specific intent, means of applying force or fear, or other issues pertinent to guilt of the charged crime.” (Ibid.) Here, evidence Brumfield and the victim were members of rival gangs tended to establish a motive for the shooting. Evidence that Brumfield lived with a Crips gang member after fleeing to Alaska tended to impeach Brumfield’s testimony that he had never been a gang member. The evidence was limited, and its probative value outweighed any prejudicial effect. We discern no abuse of discretion and no evidence of judicial bias or misconduct.
e. Admission of “Tru Story.”
Over a defense objection, the prosecutor was allowed to question Brumfield regarding, and introduce into evidence, a handwritten, four-page short story entitled “Tru Story, ” authored by Brumfield and discovered in his Alaska apartment. “Tru Story” was written in the first person; in it the protagonist shoots and kills a bully after being urged to do so by his childhood friends, “Scoop” and “Snake.” The story included the line, “I learned that revenge is one of life[’s] sweet joys.” The prosecutor argued the story was admissible as a party admission. He acknowledged that the storyline did not mirror the facts of the instant case, but argued the piece was relevant to rebut the impression left by Brumfield’s testimony that “he’s a fun-loving golfer who’s going to be going to college, when the reality is that he’s up in Alaska dealing dope with another Crip gang member writing stories where he refers to himself as basically a murderer.” Defense counsel objected that the story was irrelevant. It was not a description of the shooting, but was purportedly a retelling of a movie entitled Blue Hill Avenue. The trial court found the evidence admissible as a party admission.
The passage describing the murder of the bully read: “Snake pulled out a gun and he come and said, ‘not if they don’t know, ’ and he shot him right in the chest. Now, Kevin, sitting here looking at us, holding his chest as Scoop and James ran up. Snake gave me the gun and said, ‘Finish him.’ [¶] James screamed, ‘Don’t do it. Snake, what the fuck have you done?’ [¶] Scoop said, ‘Do it. If he live, they gonna do us.’ [¶] Bang, I shot him.” Another portion read: “By third grade we [were] so close, nobody real fucked with us. Very few did, but we never backed down.” Twice the story recounted that the protagonist’s father had advised him to “stand like a man and that you gain respect, ” whether you “win or lose.”
When questioned about the story during cross examination, Brumfield testified that it was a “revision” of the movie.
On appeal, the People contend, as the prosecutor did below, that “Tru Story” was admissible as a party admission and relevant to rebut Brumfield’s testimony that he was a “blameless golf-playing college student.” Brumfield argues the story was irrelevant because it was a “regurgitation” of Blue Hill Avenue with “the same plot line and cast of characters.” Brumfield asserts that the court’s adverse ruling amounted to bias and misconduct.
The parties offer no authority elucidating the question of when, if ever, a defendant’s work of fiction is admissible against the author. Apart from the question of whether the story was admissible as an admission under Evidence Code section 1220, in our view, “Tru Story” had minimal relevance. It was admittedly a work of fiction, not an essay or editorial. The storyline appears to have borne little resemblance to the charged crime. The piece did not purport to be a confession. No evidence was offered to prove Brumfield had personally adopted the views about revenge or killing contained in the story.
On the other hand, based on the parties’ statements below, and contrary to Brumfield’s conclusory assertions on appeal, the plot and characters of “Tru Story” appear to bear little resemblance to Blue Hill Avenue.
Nonetheless, assuming that the evidence was admitted in error, we discern no prejudice to Brumfield. The erroneous admission of evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. (Evid. Code, § 353, subd. (b); People v. Earp, supra, 20 Cal.4th at p. 878; People v. Marks (2003) 31 Cal.4th 197, 226-227.) Precisely because “Tru Story” bore little resemblance to the facts of the case, and was so obviously a work of fiction, the evidence likely had little impact. Moreover, the People’s evidence was strong. It was undisputed that Brumfield was the shooter. The car wash cashier testified that the fight had ended when Brumfield pulled out a gun and suddenly shot Wright. Two witnesses testified that Brumfield stood over Wright after he fell to the floor and fired additional shots at him from close range, and the physical evidence corroborated this testimony. Witnesses also testified to a gap of between 5 and 10 seconds between the first and second series of shots. Brumfield’s account of the shooting failed to explain the fact that numerous shots were fired. Given the strength of the People’s evidence and the relative weakness of the defense case, there is no reasonable probability that admission of a work of fiction bearing little resemblance to the charged crimes could have influenced the jury’s verdict. (See People v. Lewis (2008) 43 Cal.4th 415, 496, 499 [erroneous admission of cartoons found in apartment where defendant spent time, which showed his nickname, a gang reference, a sawed-off shotgun, a cat, money bags, “211, ” and other elements suggesting he committed robbery with a shotgun, was harmless where they added little to the case and the evidence of guilt was strong].)
The trial court’s ruling cannot be interpreted to demonstrate judicial bias. The court gave the parties ample time to argue, considered their arguments, and concluded the document was admissible as a party admission and was relevant to impeach Brumfield’s testimony. Nothing in the conduct of the hearing or the court’s explanation of the basis for its ruling suggests bias. “[A] trial court’s numerous rulings against a party—even when erroneous—do not establish a charge of judicial bias, especially when they are subject to review.” (People v. Guerra (2006) 37 Cal.4th 1067, 1112, disapproved on another point in People v. Rundle (2008) 43 Cal.4th 76, 151.)
4. The trial court properly appointed counsel for Antonia Martin.
As set forth ante, the evidence showed Antonia Martin, Layne’s mother, picked Layne and Brumfield up from the car wash in her Durango immediately after the shooting. When deputies stopped the vehicle 45 minutes later, Martin was driving but Layne and Brumfield were not in the car. The defense sought to call Martin as a witness. The trial court expressed concern that the evidence “thus far seemingly implicates Ms. Martin at least as an accessory after the fact to this murder.” The court explained: “It’s my understanding that the People understandably intend to cross-examine her with regard to her actions on the day of the murder. [¶] I do not think that the prosecution should be put in a position where either they’re limited in terms of their cross-examination of this important witness, or where they’re put in a position where they have to choose to grant her immunity for this type of offense.” Accordingly, the court determined that the “safest way” to address the situation was to appoint counsel for Martin. Neither the prosecutor nor defense counsel opposed the appointment of counsel or offered argument on the issue.
Martin’s appointed counsel subsequently informed the trial court that he had spoken with Martin and “out of an abundance of caution” was “advising her to invoke.” Martin stated that, after speaking with the appointed attorney, she wished to invoke her Fifth Amendment right not to testify.
Brumfield contends the trial court “coerced” Martin not to testify and “endeavored to completely eliminate the possibility of any defense [witness] testifying.” He theorizes that the judge favored the prosecution by “[taking] it upon herself to find counsel for Ms. Martin” and “threaten[ing] Ms. Martin with criminal prosecution on some nonsensical aiding and abetting theory of liability.” Brumfield asserts that the statute of limitations had run on any potential charge, and the People never intended to prosecute Martin in any event.
When it appears that a witness may give self-incriminating testimony, the court has a duty to ensure that the witness is fully apprised of his or her Fifth Amendment rights. The court may discharge this duty by appointing counsel to advise the witness, or the court may elect to discharge this duty itself. (People v Schroeder (1991) 227 Cal.App.3d 784, 788; People v. Berry (1991) 230 Cal.App.3d 1449, 1453; People v. Warren (1984) 161 Cal.App.3d 961, 972.) Despite Brumfield’s conclusory assertions to the contrary, the trial court had good reason to be concerned that Martin might incriminate herself. Section 32 provides: “Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.” Based on the evidence before the trial court, Martin might well have been exposed to prosecution as an accessory in that she drove Brumfield from the car wash immediately after the murder, thereby aiding his escape.
Thus, the court appropriately discharged its duty to ensure Martin was apprised of her Fifth Amendment rights by appointing counsel for her. The trial court had no discussions whatsoever with Martin about the ramifications of her testimony, nor did it advise her of her Fifth Amendment rights. The court therefore did nothing to coerce Martin or dissuade her from testifying. (Cf. Webb v. Texas (1972) 409 U.S. 95, 97-98 [trial court dissuaded sole defense witness from testifying by, inter alia, stating that if the witness lied under oath, the court would personally see that he would be indicted for perjury].) The trial court here did not explicitly or implicitly threaten Martin with prosecution, and Brumfield’s argument to the contrary misconstrues the record. Brumfield cites no authority for his assertion that the possibility of prosecution was illusory. Had Martin been insulated from prosecution by the statute of limitations or other circumstances, presumably her appointed counsel would not have advised her to invoke the Fifth Amendment. There was nothing improper about the trial court’s conduct, and no bias is apparent.
5. The trial court properly investigated potential juror misconduct.
a. Additional facts.
Prior to trial the court admonished persons in the audience not to talk to jurors. The court stated: “To the family members who are in the audience, you’re obviously welcome to attend all of the proceedings here. Please do not take what I’m about to say personally. I know it has nothing to do with you, but I actually had two separate trials in this courthouse where family members have said things to my jury members, which is absolutely not acceptable and a violation of many different court rules. So I’m going to ask you––you’re welcome to be here obviously at every single court appearance. You’re ordered though not to have any contact with the jurors even [an] innocuous ‘Hi, how you doing?’ or conversations not about the trial are not allowed. Obviously as the jury’s selected, they’re going to know that somehow you’re connected with this case. It’s improper for you to have any contact with the jurors whatsoever. Do each of you understand? All right. Great. Thank you.”
Just before the defense case commenced, the trial court was informed by the prosecutor that Carroll had seen Martin’s husband, Louis Canada, speaking with one of the jurors. Carroll stated that the two appeared to know each other. Canada had asked how the juror was doing and why he was in the courthouse. The juror replied that he was on the case. Canada said he would see him later.
Out of the presence of the jury, the court questioned Canada regarding the interaction and learned that Canada had spoken with the juror, who was an acquaintance. Canada was not sure, but “believe[d]” the juror had been wearing his badge. Martin was present when the conversation occurred. The court ordered both Martin and Canada to return to a further hearing the following court day.
The inquiry proceeded as follows: “[The Court]: Mr. Canada, did you recognize one of our jurors from somewhere? [¶] [Canada]: Yes. [¶] [The Court]: And was that our juror who’s the correctional officer? [¶] [Canada]: I’m not sure. [¶] [The Court]: How do you know him? [¶] [Canada]: When we were younger, teenagers. [¶] [The Court]: You grew up together? [¶] [Canada]: Yeah, basically. [¶] [The Court]: Did you see him leaving the courtroom? [¶] [Canada]: Yes, I did. [¶] [The Court]: With his juror badge on? [¶] [Canada]: I believe he had it on. I’m not sure. [¶] [The Court]: Your wife is a defense witness in this case. [¶] Is that correct, Ms. Martin? [¶] [Martin]: Yes. [¶] [Canada]: Yes. [¶] [The Court]: Okay. Because you were here when I ordered her back on Monday; right? [¶] [Canada]: Yes, I was. [¶] [The Court]: So you know she’s going to be called as a witness in this case? [¶] [Canada]: Yes. [¶] [The Court]: You know it’s in this courtroom because you walked in with her––[¶] Ma’am, please sit down. I’m not speaking to you. [¶] You came in here with her. You knew she was a witness in this courtroom. I ordered her back. Why did you have any conversation with one of our jurors? [¶] [Canada]: Actually, he had the conversation with me. He stopped to talk to me. [¶] [The Court]: Do you think that makes any difference in my mind? [¶] [Canada]: I don’t think it does, but I didn’t initiate the conversation. [¶] [The Court]: What was the conversation? [¶] [Canada]: Just about living here in the Antelope Valley. [¶] [The Court]: Did you say anything to him at all about this case? [¶] [Canada]: I don’t know anything about this case. [¶] [The Court]: That’s not an answer to my question. [¶] [Canada]: No, no. [¶] [The Court]: Did you have any conversation at all regarding what you were doing in the courthouse? [¶] [Canada]: No. [¶] [The Court]: When you had this conversation with him, was your wife with you? [¶] [Canada]: I was standing. She was sitting. She was with me. [¶] [The Court]: Were you standing and she was sitting when he walked out, or did you stand together and speak to him? [¶] [Canada]: When he came over to me, I stood. [¶] [The Court]: When he first approached you... were seated with your wife who was going to be a witness on Monday? [¶] [Canada]: Correct. [¶] [The Court]: Were there any other jurors around when you had this conversation with him? [¶] [Canada]: I wasn’t paying attention. I’m not sure.” The trial court then ordered Canada to return on the following Monday for a brief hearing on the matter. It also ordered Canada not to have contact with Juror No. 3 or any other juror during the pendency of the case. Further, while Canada could give Martin a ride to court the following Monday, he was ordered not to accompany her in court. The court continued: “And, actually, Ms. Martin, I need you here at 11:00 o’clock on Monday as well. Don’t roll your eyes at me. Perhaps, perhaps, maybe we should have thought before we spoke to one of the jurors in the case where you’re going to be a witness, so don’t roll your eyes at me. I didn’t put you in this position. We’ll see you guys back on Monday.”
The following court day, the defense filed a written motion objecting to any further hearing on the incident. The court observed that it had a duty to inquire regarding communications between jurors and persons connected with the case. The trial court then questioned Carroll, Canada, Martin, and the juror in question outside the jury’s presence.
Carroll testified that Martin and Canada had been seated on a bench across from the courtroom door when the jury left the courtroom. A juror, later identified as Juror No. 3, stopped and spoke to the couple. Juror No. 3 asked Canada, “ ‘What are you doing here?’ ” Canada pointed towards the courtroom. When Martin saw Carroll approach, she shook her head and stopped talking. The group then continued talking.
Canada testified that he and Martin were seated outside the courtroom when the jury exited, and Juror No. 3 approached him. They had “gr[own] up together in the same neighborhood” and Juror No. 3 was a friend of Canada’s cousin. Canada was “really kind of shocked” when the juror walked up because he had not seen him in 10 years. Juror No. 3 thought Canada’s cousin lived in Denver and asked how long Canada had been living in the area. The juror stated that he was a Denver Bronco fan, and Canada, who worked at a sports bar, invited him to visit the bar. The juror did not ask why Canada was at the courthouse, and Canada did not ask why Juror No. 3 was there. Canada stated he was unsure whether the man was a juror or had been wearing a badge.
The exchange between the court and Canada was as follows: “[The Court]: Mr. Canada, on Friday, were you seated outside in the hallway when my jury was being excused from this case? [¶] [Canada]: Yes. [¶] [The Court]: And where were you seated? [¶] [Canada]: Right outside the courtroom against the back wall.... [¶] [The Court]: You’re indicating. Would that be the wall on the opposite side of the hallway than we are? [¶] [Canada]: Yes. [¶] [The Court]: Okay. And were you sitting alone or with someone else? [¶] [Canada]: My wife. [¶] [The Court]: And that’s Ms. Martin? [¶] [Canada]: Yes. [¶] [The Court]: And as the jury came out, what, if anything, happened? [¶] [Canada]: They just––the jury walked by. Then after that I noticed the guy that I had the conversation with, he came back. He approached me. I stood up. We talked. [¶] [The Court]: Let me stop you for a couple of seconds. Did he first leave with the rest of the jurors and then come back? [¶] [Canada]: Yes. I don’t know how far he went. I just realized that he came back. [¶] [The Court]: Okay. And is this somebody that you recognized? [¶] [Canada]: Right. [¶] [The Court]: And how do you recognize him? [¶] [Canada]: We more or less grew up together in the same neighborhood. [¶] [The Court]: And do you know him by any particular name? [¶] [Canada]: No. I really know him through my cousin. That’s how I know him. [¶] [The Court]: Is he friends with a cousin of yours? [¶] [Canada]: Yes. [¶] [The Court]: And when he first walked up, if you remember, what was the first thing that he said? [¶] [Canada]: Just basically, how long you been living up here? And... I told him how long I lived up here, he told me how long he lived here. [¶] [The Court]: What was the rest of your conversation? [¶] [Canada]: He asked me about my cousin. He told me that he thought he was––that his family lived in Denver. I told him that his family lives up here, they live in Lancaster. [¶] Basically then we talked about he said he’s a Denver Bronco fan. I told him where I have another job, which I work at a sports bar, and I invited him to come there. And basically that was the end of the conversation. [¶] [The Court]: When he first walked up, did he ask you why you were here? [¶] [Canada]: No. [¶] [The Court]: Did you ask him why he was here? [¶] [Canada]: No. [¶] [The Court]: You knew why he was here. [¶] [Canada]: I seen him come out of the courtroom. I didn’t bother to ask. [¶] [The Court]: You saw him come out with all the rest of the jurors, right? [¶] [Canada]: He came out with a group of people. [¶] [The Court]: You knew they were jurors when they walked out, right? [¶] [Canada]: I can’t say that, no. [¶] [The Court]: Didn’t you tell me that on Friday? [¶] [Canada]: No, I didn’t tell you that on Friday. [¶] [The Court]: You knew he was involved in this case, right? [¶] [Canada]: No, I did not know he was involved in this case. [¶] [The Court]: You don’t remember telling me something different on Friday? [¶] [Canada]: No. [¶] [The Court]: So what’s going through your mind when he walks up? [¶] [Canada]: I just was really kind of shocked because I hadn’t seen him in a while. Just shocked. I hadn’t seen him in maybe ten-plus years. [¶] [The Court]: Just so we’re clear, you were here with your wife who is going to testify at a jury trial, correct? [¶] [Canada]: Correct. [¶] [The Court]: And you know all about this case because her daughter was involved with the defendant, right? [¶] [Canada]: I don’t know a whole lot, but I know some of it. [¶] [The Court]: You knew it was here for a jury trial. [¶] [Canada]: I knew some of what took place, yes. [¶] [The Court]: You knew that we were taking testimony on the trial, right? [¶] [Canada]: Correct. [¶] [The Court]: You knew it was a jury trial. [¶] [Canada]: Correct. [¶] [The Court]: You see a group of people leaving at the end of the day wearing jury badges right? [¶] [Canada]: No, I’m not sure if he had on a badge or not. That’s what you asked me on Friday.”
Martin similarly testified that the juror approached Canada after exiting the courtroom. The men exchanged pleasantries and discussed a mutual friend who had moved to the area. Canada told Juror No. 3 that he worked as a bouncer at a sports bar, and Juror No. 3 said he would try to come to the bar to see him. The juror did not ask why Canada was at the courthouse.
Juror No. 3 told the court that when leaving the courtroom the preceding Friday, he had seen Canada, whose name he did not know. Canada was the cousin of an old friend of Juror No. 3’s. The men discussed how long they had lived in the Antelope Valley. Juror No. 3 asked about the cousin, and Canada stated he had moved back to Denver. Canada told Juror No. 3 where he worked, but did not invite him there; however, Juror No. 3 told Canada that employees at his workplace sometimes patronized the sports bar and Juror No. 3 might see him there. Juror No. 3 was wearing his juror badge. Juror No. 3. had no idea whether Canada had any connection to the case, what courtroom he had come from, or why he was in the courthouse. He had never seen Canada in the courtroom. The men did not talk about the case. Juror No. 3 averred that nothing about the encounter would impact his ability to be fair and impartial in the case. He would be able to follow the court’s admonition not to speculate about Canada’s involvement with the case.
The court found Carroll credible. While it did not find Canada or Martin credible, Juror No. 3’s conversation with Canada appeared unlikely to have any impact on the case. Canada was not a witness and the juror did not know Canada well enough to recall his name. The court concluded the conversation did not suggest the juror would be unable to perform his duties or justify his removal from the case. Neither party objected.
b. Discussion.
Brumfield contends that the trial court committed misconduct by examining Canada, Martin, and Juror No. 3. He acknowledges that “the court was justified in examining the individuals” but conducted the examination in an unbalanced manner. According to Brumfield, the court “stepped outside of its role as a neutral fact finder” by failing to conduct an impartial inquiry. He characterizes the court’s questioning of Canada as an “intimidating inquisition.” He also accuses the trial court of attempting to intimidate the “lone [B]lack juror” on the jury. Brumfield’s arguments are meritless.
Once a trial court is put on notice that good cause to discharge a juror may exist, the court has a duty to make whatever inquiry is reasonably necessary to determine whether the juror should be discharged. (People v. Cowan (2010) 50 Cal.4th 401, 505-506; People v. Martinez (2010) 47 Cal.4th 911, 941-942.) “ ‘ “ ‘The decision whether to investigate the possibility of juror bias, incompetence, or misconduct—like the ultimate decision to retain or discharge a juror—rests within the sound discretion of the trial court.’ ” [Citations.]’ ” (People v. Cowan, supra, 50 Cal.4th at p. 506.) “The duty to conduct an investigation when the court possesses information that might constitute good cause to remove a juror rests with the trial court whether or not the defense requests an inquiry, and indeed exists even if the defendant objects to such an inquiry.” (Ibid.) A juror’s unauthorized contact with a witness is improper, and a juror’s receipt of information about a party or the case that was not part of the evidence received at trial constitutes misconduct. (Id. at p. 507.)
Here, the trial court was given credible information that a sitting juror was speaking with persons connected to the case, that is, the mother of the defendant’s former girlfriend, and the mother’s husband. Under these circumstances, the court certainly had discretion to conduct an inquiry into the incident; indeed, it would have been remiss had it simply ignored the information, a fact Brumfield appears to acknowledge. The court’s inquiry was appropriate to the situation; it was brief and limited, and ceased as soon as the court was satisfied that the encounter between the juror and the defendant’s associates was innocuous. Contrary to Brumfield’s argument, we see no evidence of bias or impartiality in regard to the court’s handling of the inquiry or interactions with Canada (which we have set forth in the margin), or with Martin or Juror No. 3. The court was clearly displeased that the incident had occurred, and communicated that to Martin and Canada. The court’s concern was understandable and appropriate, especially in light of the clear admonition it had given family members prior to trial not to have any communications with jurors. However, the court was entirely cordial to the juror, and was not impolite or intemperate with Canada or Martin. Brumfield’s characterization of the record is strained, and does not support a finding of bias.
6. Contempt.
a. Additional facts.
Prior to trial, the parties and the court spent considerable time on the question of whether, in addition to the gang-related statements made by Wright and Brumfield during the fight, other evidence of Brumfield’s and/or the victim’s gang affiliations was admissible. During pretrial discussions on March 20, 2009, Defense Counsel Willoughby informed the court that the defense “hope[d] to come into possession of some photos of Mr. Wright’s gang, ” but was unsure whether the photographs would include pictures of Wright. The court ruled, “at this point, I don’t see the relevance of any photographs showing [the] gang affiliation of Mr. Wright or any other extrinsic evidence regarding his gang affiliation. If you come into possession of some sort of [extrinsic] evidence of that affiliation, if you can think of a way in which it would be relevant, then you’re ordered to address it with the court outside the presence of the jury and not mention it unless and until that time.” Also on March 20, 2009, the court ordered the attorneys to appear at 11:00 a.m. on Tuesday, March 24, to address last minute issues; trial would start at 1:30 p.m.
On March 24, 2009, Attorney Willoughby did not appear until 1:30 p.m. The court accepted Willoughby’s explanation that he had not understood he was supposed to appear at 11:00 a.m., but reiterated that tardiness was unacceptable.
Trial commenced. During direct examination of Carroll, the prosecutor elicited that Carroll had seen Wright shortly before the shooting and he had not appeared agitated, annoyed, or angry. During this brief line of questioning, Carroll volunteered that when she saw Wright the last time, “He got off work. He brought me something to eat. He showed me the enrollment papers for A.V. College. We talked for a bit and then he left.” Defense counsel did not object to this testimony.
During cross examination, defense counsel pursued the following line of questions:
“[Defense Counsel Willoughby]: Are you aware that Quinton used to live in Compton?
“[Carroll]: No, he did not.
“[Defense Counsel Willoughby]: You saying he never lived in Compton?
“[Carroll]: No.
“[Defense Counsel Willoughby]: You’re familiar with Quinton’s friends?
“[Carroll]: Some of them.
“[Defense Counsel Willoughby]: And the group he runs with?
“[Carroll]: Some of them.
“[Defense Counsel Willoughby]: Blood gang, isn’t that true, ma’am?”
While asking this question, Attorney Willoughby apparently pulled a stack of photographs from his briefcase, as if preparing to show them to the witness. The prosecutor asked to approach and a discussion was conducted in chambers. The court reiterated its earlier ruling that photographs of the victim’s gang were not admissible until the court had revisited the issue out of the jury’s presence. Defense counsel stated: “I recall the court articulating that.” The court continued: “And so today, not only did you all not come in this morning at 11:00 o’clock for any [Evidence Code section] 402[’]s..., but while this witness is on the stand in front of the jury, you ask her about the victim’s friends being a group of Bloods.... Then I see you go over to your briefcase, open it up, pull out photographs that I believe are the very photographs we talked about last week about certain people throwing up gang signs. Am I wrong about that?” Defense counsel responded: “That’s a group of photos of the individuals she just got through articulating, basically, that Quinton was some type of saint, he was working, getting ready to go to college....” The court indicated it did not wish to consider admissibility at that point, and instead queried why counsel had blatantly disregarded its order. The court opined that its ruling had been clear, but that counsel “just chose that... for the impact in front of the jury, that it was better to disregard my order and pull this out?” The court stated that it had “never encountered such flagrant disregard” for the court’s authority, and asked for a response. Defense counsel responded: “Well, personally, I don’t think it was a flagrant disregard of your order.” The following discussion transpired:
“The Court: Really? Because you just said you were there during the hearing, that you understood what this was. But, yet, based on her testimony, you decided that you were going to use these. You did not ask to approach. You did not run anything by me. You just started questioning her in front of the jury.
“[Defense Counsel Willoughby]: This was an individual for whom we had no knowledge as to what she was going to testify to that got up there. There were no police reports.
“The Court:... [L]et’s not go into that.
“[Defense Counsel Willoughby]: Let me finish making my record.
“The Court: No. Before we get there, I will let you make your record as to the admissibility of this. Right now, I want you to address the fact that you did not ask to approach. You did not address this outside of the jury.... [I]nstead, you just did this in front of the jury on day one of testimony. I want you to address me as the court here and tell me why it is that you don’t think I should hold you in contempt of court right now.
“[Defense Counsel Willoughby]: Well, I don’t think my actions arose to contempt of the court.
“The Court: A direct violation of a court order you do not believe is contemptuous?”
The court found Willoughby in contempt under section 1209 of the Code of Civil Procedure. The court further noted that Willoughby’s failure to arrive at the courthouse at 11:00 a.m. that morning had disrupted the courtroom schedule. The court ordered a sanctions hearing held in abeyance until the conclusion of the trial, to avoid any possibility that Brumfield’s fair trial rights would be affected. Willoughby stated he wished to respond on the record. The trial court informed him he could do so the next morning, but wished to conclude the proceedings for the evening.
The next day, March 25, 2009, Willoughby filed a document captioned, “Opposition to the Court’s Preliminary Finding of Direct Contempt.” It included a memorandum of points and authorities and Willoughby’s declaration. The court indicated it had deferred the contempt adjudication and sanctions hearing until after conclusion of the case, and determined that it would consider the opposition at that time.
After trial and sentencing concluded, the court served Willoughby’s office with an order to show cause why sanctions should not be imposed. With the trial court’s agreement, Willoughby withdrew the March 25, 2009 motion and declaration and filed a new declaration. In the new declaration, filed on May 14, 2009, Willoughby stated that his tardiness had been a misunderstanding. As to his violation of the court order, he explained that he believed Carroll’s testimony had opened the door to evidence regarding the victim’s character, and he had a “momentary lapse of judgment in terms of recalling” the court’s order precluding such evidence. He had not intended to disregard the court’s order, but questioned the witness “in the heat of [the] moment and while vigorously defending Mr. Brumfield.” At the hearing, Willoughby expressed his “remorse for what transpired in the courtroom.” The trial court found Willoughby had been in contempt, but ruled that, in consideration of the newly filed declaration and the fact Willoughby’s conduct of the trial after the incident had been “exemplary, ” sanctions were not warranted. The court opined that Willoughby was “a fine advocate. You did what I would characterize as a wonderful job on behalf of your client, and this conduct did not repeat itself.”
b. Discussion.
On appeal, Brumfield attempts to show the contempt finding was unreasonable. He asserts that, because counsel had not yet shown the photographs to the witness, the court found counsel in contempt “for violating an order despite the very fact that [c]ounsel did not actually do anything to violate such a court order.” He urges that the court’s “attitude and actions towards [d]efendant and counsel are the most obvious indicators of judicial bias and misconduct.”
We discern neither bias nor misconduct. Of course, the validity of the contempt order is not before us; we consider only whether the court’s actions demonstrated bias against Brumfield. They did not. A trial judge has the duty “to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” (§ 1044.) “When an attorney engages in improper behavior, such as ignoring the court’s instructions or asking inappropriate questions, it is within a trial court’s discretion to reprimand the attorney, even harshly, as the circumstances require.” (People v. Guerra, supra, 37 Cal.4th at p. 1111; People v. Snow (2003) 30 Cal.4th 43, 78.) Disobedience of any lawful court order constitutes contempt. (Civ. Proc. Code, § 1209, subd. (a)(5).)
Here, Attorney Willoughby disregarded the trial court’s clear ruling, made after considerable argument and analysis. Willoughby did not deny that he was about to show the witness the gang photographs that the parties had discussed. He acknowledged that he had understood the court’s order. He did not initially offer any explanation for his conduct except to imply that he believed the evidence was relevant to rebut Carroll’s testimony. In other words, he either disagreed with the court’s order and did not intend to abide by it, or he intended to willfully disregard it to obtain a tactical advantage. Under these circumstances, we are hard pressed to see how the court’s contempt finding evidences judicial bias or misconduct. While the court did vehemently express its displeasure with counsel’s actions, the court was never discourteous. It made no disparaging remarks about counsel. None of the proceedings were held in front of the jury. Our review of the entire record convinces us that, contrary to Brumfield’s assertion that the contempt finding resulted in a “toxic trial process, ” it had no negative effect on the proceedings. The contempt order does not demonstrate bias.
7. No judicial bias or misconduct is apparent.
“ ‘A fair trial in a fair tribunal is a basic requirement of due process, ’ ” and “ ‘the Due Process Clause guarantees a criminal defendant the right to a fair and impartial judge.’ ” (People v. Freeman (2010) 47 Cal.4th 993, 1000.) Trial judges should be “ ‘exceedingly discreet in what they say and do in the presence of a jury lest they seem to lean toward or lend their influence to one side or the other.’ [Citation.]” (People v. Burnett (1993) 12 Cal.App.4th 469, 475.) A trial judge has the duty to be impartial, courteous, patient, and dignified. (Ibid.; People v. Sturm (2006) 37 Cal.4th 1218, 1244.) “Although the trial court has both the duty and the discretion to control the conduct of the trial [citation], the court ‘commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution’ [citation]. Nevertheless, ‘[i]t is well within [a trial court’s] discretion to rebuke an attorney, sometimes harshly, when that attorney asks inappropriate questions, ignores the court’s instructions, or otherwise engages in improper or delaying behavior.’ [Citation.]” (People v. Snow, supra, 30 Cal.4th at p. 78.) “Mere expressions of opinion by a trial judge based on actual observation of the witnesses and evidence in the courtroom do not demonstrate a bias. [Citations.]” (People v. Guerra, supra, 37 Cal.4th at p. 1111.) As noted ante, a trial court’s rulings against a party, even if erroneous, do not establish a charge of judicial bias. (Id. at p. 1112.)
On appeal, “ ‘[o]ur role... is not to determine whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid. Rather, we must determine whether the judge’s behavior was so prejudicial that it denied [the defendant] a fair, as opposed to a perfect, trial.’ [Citation.]” (People v. Snow, supra, 30 Cal.4th at p. 78; People v. Guerra, supra, 37 Cal.4th at p. 1112.)
We have carefully reviewed the entire record, and discern no instance or appearance of judicial bias or misconduct. To the contrary, the trial court fulfilled its duties to be impartial, courteous, and patient in a generally exemplary fashion. None of the complained-of instances occurred in front of the jury. The court was unfailingly courteous, temperate, dignified, and courteous when the jury was present, and nothing it did or said could have telegraphed bias to jurors. (See People v. Snow, supra, 30 Cal.4th at p. 79.) The few instances in which the court spoke sternly to counsel were outside the jury’s presence. Moreover, we do not discern anything inappropriate about the court’s interaction with counsel even outside the jury’s presence. The court never disparaged counsel or behaved discourteously. The court was uniformly polite toward defendant. The proceedings were not acrimonious. The court gave the parties ample opportunity to be heard, revisiting issues repeatedly when requested to do so. The record also makes clear that the court conducted thorough analysis of each issue and made its rulings in a fair and balanced manner. As we have explained, the vast majority of the court’s challenged rulings were correct; the sole exception was insignificant and did not demonstrate bias. Many of Brumfield’s arguments to the contrary are based on mischaracterizations or strained interpretations of the record. In short, we see no evidence of judicial bias or misconduct and Brumfield’s claims lack merit. (See People v. Guerra, supra, 37 Cal.4th at pp. 1111-1112.)
In passing, Brumfield mentions several other complaints, that is, that the court ordered defense counsel to turn over discovery but did not impose a reciprocal order on the People; insisted that the defense disclose its case prior to trial; and failed to timely rule on the question of gang evidence, resulting in preclusion of questioning on that issue during voir dire. These contentions are set forth in conclusory fashion, without benefit of meaningful argument or authority; they are therefore forfeited. (People v. Roberto V. (2001) 93 Cal.App.4th 1350, 1364, fn. 6; People v. Gray (1998) 66 Cal.App.4th 973, 994; People v. King (1991) 1 Cal.App.4th 288, 297, fn. 12.) In any event, they lack merit.
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.
Brumfield mischaracterizes the record. First, while everyone agreed Wright was depicted in photograph C18, it was not undisputed that Wright was shown in photographs C11, C12, or C1. When asked whether Wright was present in photograph C1, defense counsel responded “No.” When asked whether the defense sought to introduce C11, defense counsel again responded, “No.” When asked whether Wright was shown in photograph C12, defense counsel responded, “[P]ossibly. We believe that could also be the victim.” Defense counsel averred that Wright’s mother and Carroll had been shown C12 and initially stated it was not Wright. The prosecutor represented that Carroll and Wright’s mother had viewed the photographs and believed Wright was not shown in any of them, except for possibly C12. Defense counsel stated in reference to C1, “the gentleman in the middle standing with the red shirt quite possibly could be the victim also.” The court did not see any resemblance, stating simply, “I don’t see that at all[.]” Defense counsel then stated that he believed the person in C12 was wearing the same clothing as the person in another photograph which he failed to identify by exhibit number, apparently either C11 or C1. The trial court opined that the clothing in question––a red shirt with a white shirt underneath––was too commonplace to allow for a meaningful comparison. In short, neither defense counsel, the prosecutor, nor even the victim’s mother and former girlfriend were sure whether Wright was present in the photographs at issue. Brumfield’s attempt to cast aspersions on the trial court for questioning whether Wright was depicted in certain photographs is, under these circumstances, disingenuous. The trial court’s observation regarding the commonplace nature of the attire referenced by counsel was a fair comment and, by no stretch of the imagination can be considered to indicate bias. Moreover, the trial court did not exclude C1, C11, and C12 because Wright was not shown in the photographs, but for the reasons we have discussed ante.